The intersection between evolving technology and the rules against unauthorized practice of law (UPL) has been a hot issue in recent years. For example, last year, a now-defunct company called TIKD was enjoined by the Florida Supreme Court from running an app that provided assistance to drivers with traffic tickets.

Here’s how the app worked: After a user signed an agreement and uploaded pictures of their traffic ticket, the app analyzed the ticket to determine whether the ticket was appropriate for further legal action. If TIKD accepted the ticket, it charged the driver a percentage of the ticket’s value and sent the driver’s information to a licensed attorney with whom TIKD had contracted to provide a defense to TIKD’s customers.

From there, if the driver and the attorney chose to accept the representation, the attorney communicated directly with the driver and handled all aspects of the driver’s defense.

Many consumers praised the app for enabling access to legal representation that they otherwise wouldn’t have received or even sought out. The Florida Supreme Court had a different view. Specifically, the court concluded that TIKD was engaged in unauthorized practice of law by reviewing the ticket and matching the driver with a licensed attorney.

First, the court found that TIKD’s services had the potential to “substantially affect” the quality and timeliness of the representation, thereby affecting the driver’s rights under the law. Next, the court noted that TIKD collected money upfront from its clients for court costs and other fees—funds that would typically be held in trust if collected by a lawyer.

Finally, the court expressed concern over the risk that the non-lawyer company’s profit-based goals would conflict with the professional obligation of lawyers to act in their clients’ best interests.

In a footnote, the court acknowledged that the app could “in some ways increase[] affordable access to our justice system,” but concluded that “we cannot address the access to justice problem by allowing non-lawyer corporations to engage in conduct that, under this Court’s sound precedent, constitutes the practice of law.”

A Growing Trend

Although the TIKD app didn’t last, it is part of a broader movement seeking to change the regulations governing unauthorized practice and to increase access to justice for people who might not otherwise be able to afford it.

Some states are leading the charge in this area. In 2020, Arizona became the first state to abolish American Bar Association Rule 5.4 and allow non-lawyer ownership of legal-services entities. The state now has dozens of such entities providing a broad range of transactional, business, and financial legal services.

That same year, Utah approved an experimental regulatory “sandbox” enabling the provision of low-cost legal-technology services by non-lawyer companies, such as services that assist with completing court forms, setting up LLCs, and receiving and managing legal documents. Similar changes are being considered in other states.

Other companies are seeking to assist the public in enforcing their own legal rights. Last year, another startup based in New York planned to offer a way for people to contest traffic tickets in court using arguments generated by artificial intelligence. A defendant would wear smart glasses that would record the court proceedings and dictate proposed responses to the defendant through a small speaker.

The responses would be generated by AI text generators such as ChatGPT and DaVinci. The first test run was slated to take place in a California court last year, but was nixed following an outcry from multiple state bar associations that this constituted the unauthorized practice of law by nonlawyers or otherwise warranted criminal penalties.

Here are some of the primary arguments on both sides of this hotly contested issue.

The Proponents

Proponents of changes to unauthorized-practice regulations and the expansion of services available to the public state that these developments represent substantial progress both in the development of technology and in helping vulnerable people. According to those advocates, this is the way of the future.

Even if there are drawbacks to increased nonlawyer involvement in this arena, proponents state that such drawbacks are significantly outweighed by the benefits of improving access to justice. Not only would these changes reduce the cost of many legal services, including in particular the services most used by lower- and middle-income consumers, but they would also make obtaining legal help simpler and faster for many.

Some advocates note that simply linking a lawyer with a client is not the practice of law, but ensuring that a client is not left alone in the legal system. It is far easier, and less daunting, for a working parent holding down two jobs to download an app, upload some documents, and answer a few questions than it is to go through the traditional process of obtaining legal help (or, just as likely, foregoing the pursuit of their legal rights).

The Opposition

Others, including some state bars and legal scholars, have expressed concern about this progress. Many critics focus on the fact that lawyers are subject to serious consequences for violating ethical rules, including suspension and disbarment. Nonlawyers do not receive the same training on these rules, nor do they face the same consequences for violating them.

Indeed, the TIKD court made special note of the company’s lack of “skill or training” necessary “to ensure the quality of the legal services provided to the public through the licensed attorneys it contracts with.” And although AI is improving, critics say it is not capable of conducting complex legal analysis.

Another frequently cited concern is that nonlawyer companies may be motivated by profit, rather than by a client’s best interests (even though lawyers and firms can charge substantial fees for their own work as well).

Finally, some believe that the fierce opposition to changes in this area is a result of lawyers’ concerns about “being replaced” and facing more competition in the legal market.

What’s On the Horizon?

Many states are watching to see the benefits and drawbacks that come from these developments and experimental changes.