AUTOMATED DOCUMENT ASSEMBLY

• Author: Helena WHALEN-BRIDGE1 BA (with Distinction) (University of Connecticut), JD (University of Connecticut), LLM (National University of Singapore); Attorney-at-Law, Connecticut and California; Associate Professor, Faculty of Law, National University of Singapore.
• Publication year: 2021
• Published date: 01 December 2021
• Date: 01 December 2021

I. Introduction

1 Legal technology has arrived. The prediction of death for traditional professions has not come to pass,2 but legal technology, or

“legal tech”, has produced many changes in legal practice, as well as opportunities to expand access to justice for lower-income individuals and businesses. Legal tech, defined as technologies that enable “a legal services provider to better provide value to anybody involved in understanding or applying the law”,3 targets different user groups, including “lawyers, law firms, corporations, in-house legal departments, court systems, community organizations, and individual users who are not trained as attorneys”.4 While surveys of legal innovation and legal tech tend to focus on the commercial legal market,5 there are a variety of legal tech applications for access to justice,6 understood here as the ability of all individuals to access law and resolve legal disputes. This article considers automated document assembly systems, online programmes that prompt users to answer questions and then use the information to produce legal documents, and in particular automated court documents, ie, automated documents intended to be filed in court.7 Court document assembly has been characterised as an “ideal mechanism”8 to effectively address particular issues faced by individuals who cannot afford an

attorney for representation in court,9 and it has had a healthy development in Singapore.

2 To evaluate the benefits and risks of automated documents, this article compares the documents generated by two different kinds of entities: (a) commercial actors, including law firms and the so-called disruption services that offer a variety of legal documents directly to low and middle-income individuals and businesses; and (b) public or non-profit entities, such as courts, educational institutions and non-profit organisations, who produce court document assembly systems. This second, somewhat eclectic, group includes entities referred to as public institutions, but all entities are grouped together as the nonprofit environment to distinguish them from commercial enterprises. The juxtaposition of commercial and non-profit environments provides the basis for an exploration of the kinds and levels of consumer risk in different markets, and it is intended to bring the likely forms of consumer risk into sharper focus so that the desirability and appropriate level of regulation can be considered.

3 One theme that runs through an evaluation of automated legal documents is the degree of legal support offered to the user apart from the online programme itself, referred to here as “separate legal support”. When a user generates an automated document, separate legal support can run from none to varying degrees. The use of a lawyer to produce a legal document is not risk free, but to the extent that users proceed without legal support apart from the automated document itself, because of necessity or other reasons, they may encounter risks. The question of what kind of legal services can or should be offered by non-lawyers is complex indeed, and automated documents raise issues under different kinds of regulation, such as rules regarding unauthorised practice of law and prohibitions on non-lawyers giving legal advice.10 These issues are important, but in order to not prematurely restrict analysis to the contours of current jurisprudence, the article adopts a broader, policy perspective, which allows for a description of current practices and identification of the risks likely to arise for users.

4 Throughout the article, the experiences of the US and Singapore are considered. The US has the largest number of legal tech firms by far,11 and many issues regarding automated documents have played out there first, offering points of comparison. Also, the article considers the consumer risks raised by document assembly systems, which, as noted above, potentially comprise legal advice. Singapore professional regulation differs considerably from the US on some points, but Singapore and the US offer fundamentally similar regulatory contexts for purposes of document assembly systems; both jurisdictions restrict who may provide legal advice, enabling a more coherent overall comparison than the UK, which does not include legal advice in its list of controlled activities.12

5 The article observes that document assembly systems offer economies for commercial and non-profit environments as well as opportunities to expand access to justice for lower-income individuals and businesses. Automated court documents in particular have an unprecedented potential to address some of the issues posed by unrepresented litigants.13 However, if a user proceeds without the separate assistance of someone trained in the law, these systems may pose risks to users. Parts II14 and III15 review the commercial and non-profit markets in which these documents arise, using and building upon Darryl Mountain's business models for document assembly16 to identify initial points of concern. The article then suggests a further series of questions to help balance consumer risk and access to justice, and applies the questions to selected examples from different markets. The article argues that depending on the context, while some automated documents from commercial sources raise concerns, court document assembly poses relatively little risk for consumers, because of the non-profit mission of

entities that create the documents and the collaborative nature of the creation process.

II. Commercial legal document assembly systems

A. Commercial usage in the US

6 While research in legal tech encompasses more complex matters such as artificial intelligence, “transactional and estate planning lawyers have utilized document automation for decades”.17 The basic function of document assembly in this context has been to replace repetitive manual inputting of information with a template; the user answers questions from the template software, which is then used to produce a draft of the document.18 More recently, when prompted by client demands for lower fees and different kinds of fee structures,19 law firms began to offer online document assembly to their corporate clients, reducing costs and encouraging the client to review the draft with a legal expert.20 In terms of consumer risk, the use of a lawyer is of course not risk free, but this kind of automated document poses relatively lower levels of consumer risk because the product of the automated system is utilised together with the assistance of someone trained in the law.

7 Law firms, however, are not the only ones using document assembly. Richard Granat dates the legal document preparation industry, ie, non-lawyers who assist consumers and small businesses in preparing legal forms without providing legal advice or custom drafting, from the early 1990's.21 A major change in this industry occurred when the development of the web browser allowed clients to find and use document

assembly systems on their own.22 LegalZoom and Rocket Lawyer are two of the better-known companies that allow users, primarily small companies and consumers, to create their own documents online.23 LegalZoom users log on and provide answers to questions, after which document assistants review the document and contact the user if there are any questions, followed by document delivery and wrap up instructions.24

8 This kind of automated legal document, in which a user receives a document without the separate assistance of a lawyer, has been characterised as disruptive, and a starting point of much analysis regarding technological disruption in the legal industry is the work of Richard Susskind.25 Susskind applied Christensen's theory of disruption26 to the legal profession and produced different models of legal practice, including the traditional bespoke model, in which legal work is highly customised to the client, and commoditisation, in which the legal work that has become “so commonplace and routinizable” is made available freely on the Web.27 However, these models apply to the provision of legal services generally, and they do not reflect sensitivity to some of the issues raised by document assembly.

9 Mountain has identified six kinds of law business models regarding document assembly.28 The models reflect the fact that not all business models make the most out of, or even do well with, document assembly. In the first model, law firms that charge clients using hourly billing structures, law firm lawyers generate the documents for clients. In this model, it may appear that a more efficient system would cause lawyers to bill fewer hours for the same service and be less profitable, however, lawyers using this system can earn more money overall if they provide the

service to more clients.29 In this commercial model, though, there may be questions about whether law firms pass on cost savings to the client.30 The second model, law firms that use alternative billing arrangements such as a flat fee, fares better because document assembly lowers costs and enables competitive bids for work.31 The third model, referred to here as the “hybrid model”, is a hybrid of self-help documents and legal advice in which the client uses law firm technology to generate the first draft of the document, which is then reviewed by a lawyer within that law firm.32 In the fourth model, document assembly and outsourcing,33 teams of document producers in countries with lower salaries for lawyers produce the first draft of the document using document software, and then forward the document to the law firm attorney for review.34 The fifth and the sixth models focus on the individual consumer market, and they license the document to the client, online or from a bricks and mortar store.35 Some of these models offer documents only, while some offer paralegal or lawyer support.36 The model that offers documents only is referred to here as the...