In a case brought against software publisher Parsons Technology, U.S. District Judge Barefoot Sanders in Dallas held that Quicken Family Lawyer (QFL), a program that aids users in filling out wills, leases, and other legal documents, goes well beyond the provision of mere factual information about the legal system.
The decision could give Texas enforcers new ammunition in their investigation of Nolo Press and other companies that offer similar "self-help" legal products.
"While no single one of QFL's acts, in and of itself, may constitute the practice of law, taken as a whole [the software goes] beyond publishing a sample form book with instructions, and has ventured into the unauthorized practice of law," Sanders wrote.
In explaining his conclusion, the judge noted that the software, which is bundled with Intuit's Quicken Suite, customizes the content of more than 100 legal forms based on information supplied by the end user. "Parson's argument to the contrary notwithstanding, QFL is far more than a static form with instructions on how to fill in the blanks," Sanders wrote in his January 22 order.
Parsons Technology is the publisher of Quicken Family Lawyer. Once owned by Intuit, the company is now a division of The Learning Company. An Intuit spokeswoman said the company licenses the Quicken name to Parsons.
Sanders's ruling awarded summary judgment in favor of the Texas Unauthorized Practice of Law Committee, which is responsible for enforcing the statute. In the ruling, the judge said he would issue a later ruling barring the sale or distribution of QFL in the lone star state.
Sanders rejected Parson's arguments that the Texas statute violates Free Speech rights guaranteed under the U.S. and Texan constitutions, holding that the prohibition is content neutral and therefore subject to a more lenient level of scrutiny. Additionally, the ruling applies only to software that already has been published, so there is no prior restraint of speech, the judge contended.
Nonetheless, critics of the ruling say it creates an unconstitutional chilling effect on publishers.
"It's inconsistent with the First Amendment to prohibit the distribution of information about the legal system as a general matter," said Pete Kennedy, a George & Donaldson attorney representing Nolo Press as it is being investigated for distributing its Living Willmaker software in Texas.
"I don't think the remedy of banning publications from Texas is anywhere near narrowly tailored enough to satisfy the very limited power of the government to regulate speech," he said.
In addition to Nolo Press, Kennedy said, Texas is probing several other companies that offer similar products. Lawyers for Texas's Unauthorized Practice of the Law Committee and for Parsons could not be reached for comment.
Other critics of the ruling said the biggest casualty of the ruling would be the public. "[The ruling] does create a chill and hurts the ability of the public to get needed legal information at a low cost," said Gerry Goldsholle, who heads the legal advice site Free Advice.
Still, he added, the effect of the ruling is likely to be narrow. "Good publishers," he explained, "should be able to work around this ruling with cautions" and disclaimers displayed prominently on the product.