AMERICAN BAR ASSOCIATION
NEW YORK STATE BAR ASSOCIATION
NEW YORK COUNTY LAWYERS ASSOCIATION
STANDING COMMITTEE ON THE DELIVERY OF LEGAL SERVICES
CENTER FOR INNOVATION
INTERNATIONAL LAW SECTION
RESOLVED, That the American Bar Association adopts the ABA Best Practice Guidelines for Online Legal Document Providers dated August 2019; and FURTHER RESOLVED, That the American Bar Association urges online legal document providers to follow the ABA Best Practice Guidelines for Online Legal Document Providers.
ABA BEST PRACTICE GUIDELINES FOR ONLINE LEGAL DOCUMENT PROVIDERS
The Utility of Their Online Legal Documents and Forms
- Online legal document providers (“Providers”) should provide their customers (”Customers”), with clear, plain language instructions as to how to complete their forms, and the appropriate uses for each form.
- Any notifications to be provided pursuant to these Best Practice Guidelines should be understandable to the average person. Such notifications should be prominent, written in plain language, and delivered by the Provider in ways customers are reasonably likely to see, hear or encounter. The term “notify,” as used in these Best Practice Guidelines, shall refer to notifications that conform to this Guideline.
- The forms that Providers offer to their Customers should be valid in the intended jurisdiction (as represented by the Provider or requested by the Customer). If not, Providers should inform their customers, in plain language, that the form is not substantially valid, or of any possible limitations on enforceability, in the intended jurisdiction and what steps can be taken to make it valid, including if necessary, the retention of a lawyer. Providers may limit their warranties to “as is” warranties, using notifications consistent with Best Practices Guideline 2.
- Providers should keep their forms up-to-date and promptly account for material changes in the law. Providers should notify Customers or potential Customers as to when their forms were last updated.
- If a Provider selects the service agent for a form, the Provider should not disclaim legal responsibility for the proper recording or filing of the document, and should disclose the fees charged by or for the use of such service agent.
Protection of their Customers
- Providers should notify Customers of the terms and conditions of their relationship to the Provider, and Customers should have to actively manifest their assent such as clicking on an “accept” button) to those terms and conditions.
- Providers should notify Customers of all of the ways (if any) they intend to use and share Customers’ information with third parties.
- Providers should notify Customers that the information Customers provide is not covered by the attorney-client privilege or work product protection.
- Providers should make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or unauthorized access to Customer information. In the event of a significant data incident or breach the Provider should use reasonable remedial and notification efforts and otherwise comply with applicable data security statutes or other data security protections in a Customer’s jurisdiction.
- Providers should notify Customers: (a) how long they intend to keep and maintain Customer information provided to them; (b) how long the Provider will keep and maintain a completed form; and (c) how long the Provider will allow Customers access to their completed form without imposing a new or additional charge.
- Providers should not charge their Customers an excessive fee for their services.
Recommendation of Attorneys to Assist
- Providers should notify their Customers that their forms are not a substitute for the services of a lawyer, and that Customers may benefit from the services of a lawyer in any legal transaction.
- Providers should not advertise or describe their services in a manner that suggests their forms are a substitute for the advice of a lawyer.
- Providers should notify their Customers of their legal name, address and email address to which Customers can direct any complaints or concerns about the Provider’s services.
- Providers should provide a forum convenient to the Customer for resolution of any dispute. Providers should offer inexpensive, efficient and effective dispute resolution, either in court, arbitration, or mediation, including without limitation local ADR or court proceedings, online dispute resolution or similar means. Providers should not impose lawyer fee or cost shifting to the Customer in any such proceeding. Providers should not unreasonably delay the resolution of disputes with Customers.
 The term “online legal documents and forms” or “forms,” refers to documents and forms made available or prepared online, either for sale or free-of-charge from for-profit or not-for-profit enterprises, including lawyers or law firms (through ancillary businesses or otherwise), to members of the public who wish to engage in legal transactions (including, without limitation, real estate sales, purchase-and-sale transactions, corporate or partnership formation or structuring, wills, trusts, deeds, patent and trademark filings and the like) and/or to use or file in litigation (including, without limitation, form pleadings, releases, discovery requests, jury trial demands, and the like) without engaging a lawyer. This includes both static forms and forms created using an online document assembly process. This does not include: (a forms prepared by lawyers, law firms, or legal services organizations for those with whom they have bona-fide client-lawyer relationships; (b) forms primarily prepared for or marketed to lawyers, either as part of legal treatises or otherwise; or (c) forms prepared by courts, court systems, court-related self-help centers, or government agencies. These Guidelines are not intended to address other online document marketplaces primarily addressed by other professionals, including without limitation tax filings and title searches.
JusticeXpress complies with these Best Practice Guidelines for Online Legal Document Providers.