Copyright 1996 ALM Media Properties, LLC The Connecticut Law Tribune November 11, 1996 SECTION: Pg. 39 Vol. 22 LENGTH: 1132 words HEADLINE: PASSING UP THE PROCESSORS; THE STATE SUPREME COURT RULES THAT LEGAL DOCUMENT PROCESSORS ARE INDEED ENGAGING IN THE UNAUTHORIZED PRACTICE OF LAW BYLINE: Colleen Bridget McGushin BODY: Rookie Justice Francis M. McDonald Jr. had an inauguration, of sorts, last week. This inauguration had nothing to do with Election Day; it had to do with the beginning of McDonald's opinion-writing responsibilities as a justice on the Connecticut Supreme Court. McDonald, sworn in as the newest justice on Aug. 23, penned his first opinion for the court in Statewide Grievance Committee v. Patton. Patton's official release date is Nov. 12. This decision brings to an end years of wrangling over whether legal document prep services are engaged in the unauthorized practice of law. McDonald, a former Waterbury Superior Court judge, was joined in the unanimous opinion by Chief Justice Robert J. Callahan, Justices David M. Borden and Richard N. Palmer, and former Chief Justice Ellen A. Peters, who took senior status on Sept. 1. According to the high court, in 1992, defendant Gerard B. Patton, a nonlawyer, placed ads in two Connecticut newspapers announcing Doc-U-Prep of New England, the nonlawyer legal document center, helping people who can't afford the high cost of routine legal document preparation... Customers of Doc-U-Pro, a Milford franchise of Doc-U-Prep of New England, based in Taunton, Mass., were given forms to indicate what kind of service they needed. The form said Doc-U-Prep of New England Inc. prepares legal documents for nonlawyers to file in their own uncontested legal actions. Wills cost $45, uncontested divorces $125, Chapter 7 bankruptcies $279 and name changes $99. After completing these forms, customers then filled out questionnaires on the type of service they needed. These questionnaires were sent to Taunton. Completed legal documents were returned to Patton, who then gave them to the customer for a fee. Maureen A. Horgan, assistant bar counsel, who tried and argued Patton for the Statewide Grievance Committee, says that after the ads ran, the Statewide Grievance Committee voted in November 1992 to present the matter to the Superior Court. After a trial in the Milford Superior Court in May 1995, the court issued a restraining order to stop Patton from the unauthorized practice of law, Horgan says. Patton appealed to the state Appellate Court, and the high court transferred the case to itself. Oral arguments were heard on Sept. 27. McDonald doesn't try to define the practice of law, but he does know what constitutes the unauthorized practice of law. Citing a 1941 state Supreme Court case, Grievance Committee v. Payne, the justice writes, Attempts to define the practice of law have not been particularly successful. But when it comes to the facts at issue, this court has consistently held that the preparation of legal documents is commonly understood to be the practice of law. McDonald notes that Patton is not trained in the law as an attorney, and that preparing legal documents involves hard legal questions that require a trained legal mind. It is of importance to the welfare of the public that these manifold customary functions [of practicing law] be performed by persons possessed of adequate learning and skill and of sound moral character, acting at all times under the heavy trust obligation to clients which rests upon all attorneys, McDonald writes, citing State Bar Association v. Connecticut Bank & Trust Co., a 1958 state Supreme Court decision. McDonald also dispenses of Patton's argument that C.G.S. 51-88, which prohibits the unauthorized practice of law, is unconstitutional. The defendant's activities are commonly understood to be the practice of law, and he advertised in bold print that he prepared legal documents. Section 51-88 is not void for vagueness or overly broad so as to infringe on the [F]irst [A]mendment rights of the defendant. Horgan is understandably pleased with the opinion. She notes that this is the first unauthorized practice of law case to go all the way to the Connecticut Supreme Court in the last 30 years. And although Patton's lawyer, John R. Williams, of the Law Offices of John R. Williams in New Haven, disagrees with the decision, he says there will be no further challenges. His client closed his Doc-U-Pro doors as of the start of business Tuesday morning, Nov. 5, the day after Patton was released on the judicial branch's electronic bulletin board system. (The restraining order won by the Statewide Grievance Committee at the trial court level had been stayed pending appeal, Williams says.) Williams points out that his client wasn't making much money in the legal document business. It was just a side venture to Patton's real estate business, he says. He was really just an electronic-age version of a forms salesman, Williams says. I don't believe he ever cost any lawyer a nickel's worth of business. And Williams says poor people will suffer as a result of the decision, since his client offered a low-cost option for those who couldn't afford a lawyer. Those people will do without wills, he says. Steven D. Eppler-Epstein, deputy director of Connecticut Legal Services, notes, however, that, no matter how much you try to simplify the legal requirements, there will be cases that don't fit into those forms and those people are at risk. . . . [T]he only way to identify the complicated cases is to have a lawyer look at the facts and analyze the case. (CLS offers legal help to low-income clients. Legal services providers such as CLS are struggling financially due to funding problems.) What if a person unintentionally waives his or her rights? It can be dangerous, Eppler-Epstein says. Legal preparation services really aren't an adequate substitute. James O. Gaston, chairman of the CBA's Litigation Section, who, along with Sid M. Miller, chairman of the CBA's Committee on the Unauthorized Practice of Law, submitted an amicus brief to the Supreme Court in Patton, says the decision is the proper and correct ruling. It's a matter of consumer protection. Gaston, of Bridgeport's Gaston & Ruane, says Patton was a very simple case. It's consistent with the prior case law that started in 1941. And the case is also consistent with other states nationally, he says. Clearly the preparation of legal documents for other people for a fee requires the exercise of legal judgment and legal skill, which consistently has been determined as the practice of law, Gaston says. Miller, of Hamden's Miller & Goldman, could not be reached for comment. The CBA's amicus brief in Statewide Grievance Committee v. Patton is available online on Counsel Connect in the Attorneys and Judges area of the Library. See page 33 for directions. Colleen Bridget McGushin's e-mail address is cmcgushin@counsel.com.