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176 N.J.L.J. 1195
June 21, 2004
13 N.J.L. 1311
June 21, 2004
COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW
Appointed by the New Jersey Supreme Court
OPINION 40
Businesses and Individuals
Providing Services to the
Public in the Preparation and
Filing of Paperwork sold in
“Do-it-Yourself” kits.
“DO-IT-YOURSELF” KITS
SUPPLEMENT
The issue considered in this Opinion is the extent to which a business
or individual not licensed to practice law in this state may provide services
to the public in the preparation and filing of paperwork sold in “Do-it-Yourself”
kits. The Opinion arises from multiple grievances received from sitting judges and from
other persons who complained about kits, or were given services beyond the mere
purchase of the kits, or who were provided with legal assistance or advice
by lay persons or non-New Jersey admitted attorneys. Some judges have advised the
Committee that in certain instances the relief requested from the court by those
persons using the services of these businesses and individuals may not have been
available or appropriate.
Recognizing the law as set forth in Bates v. State Bar of Arizona,
433 U.S. 350, 97 S. Ct. 2691, 53 L.Ed.2d 810 (1977), this Committee’s
Opinion No. 20, and New Jersey State Bar v. Divorce Center of Atlantic
City, 194 N.J. Super. 532 (App. Div. 1984), the Committee believes that this
Opinion is necessary for guidance of consumers and providers of “do it yourself”
kits. Kits, booklets, forms, and information for preparing pro se court applications now
are available not only for divorce matters, but also for wills, powers of
attorney, living wills, medical decision-making assignments, tax assessment appeals, bankruptcies, incorporations, and other
legal documents and actions. This Opinion is intended to provide businesses and individuals
with guidance on permissible conduct so as to prevent harm, expense and delay
to consumers interested in legal self-representation; its purpose is to assure that there
is no unauthorized practice of law.
Art. VI, §2, ¶3 of the New Jersey Constitution of 1947 confers on
the New Jersey Supreme Court exclusive and plenary jurisdiction to regulate the practice
of law. The practice of law by an individual or entity not licensed
to do so is unauthorized and proscribed by R. 1-21-1(a). The court’s power
over the practice of law is complete and includes the power to permit
the practice of law and prohibit its unauthorized practice. In re Opinion 37
of the Committee on the Unauthorized Practice of Law, 163 N.J.L.J.221 (2001), citing
In re Opinion No. 26, 139 N.J. 323 at 326 (1995). Engaging in
the practice of law by non-lawyers is also prohibited by criminal statute under
N.J.S.A. 2C: 21-22. It has been determined that one who assists in the
preparation of pleadings and who is not the litigant and who is not
licensed to practice law in the State of New Jersey is engaging in
the unauthorized practice of law. In re Opinion No. 26 of Committee on
Unauth. Pract., 139 N.J. 323 at 326 (1995). However, if the public interest
would be compromised, strict adherence to such a position may not be warranted.
In re Opinion No. 14, 98 N.J.L.J. 399 (1975), and see Appell v.
Reiner, 43 N.J. 313 (1964).
The rendering of any assistance in person, in writing , electronically or otherwise in
the preparation, review, analysis and completion of “do-it-yourself” kits, forms, booklets and the
like constitutes the unauthorized practice of law and is prohibited. If the materials
and “step-by-step” instructions require someone other than the purchaser to analyze or make
a determination that entails the exercise of “specialized knowledge and ability” [see New
Jersey State Bar Association v. Northern New Jersey Mortgage Associates, 32 N. J.
430 (1960) and Stack v. P.G. Garage, Inc., 7 N.J. 118 (1951)] as
to the information to be included in the forms or if the salesperson
or other individual assists in that analysis or determination, there is the unauthorized
practice of law.
Although non-lawyers who sell “Do-it-Yourself” kits may help the purchaser by typing, transcribing,
or translating, they are not permitted to counsel, advise, analyze, or otherwise help
the purchaser complete the forms in the kits. In many kits, there are
pleadings and other forms that require information that may have a significant impact
on the proponent’s rights. In fact, the name of the kits, "Do-it-Yourself,” plainly
speaks to their nature. The purchaser should be able to do the legal
tasks described in the kit by himself or herself.
It is clear that there will be a continuing risk to the public
if the practices under review in this Opinion are not addressed. The purchaser
of a kit, accepting guidance from a non-lawyer service provider, may believe that
the service provider has some special knowledge or expertise. Pertinent, even critical, information
that should be included in the pleading or document being prepared may be
omitted. A self-represented litigant may also fail to properly exclude damaging or irrelevant
information.
For the foregoing reasons, it is the Committee’s opinion that although the sale
of “Do-it-Yourself” kits is permissible, and that a non-lawyer seller may assist the
purchaser by typing, transcribing, or translating, the rendering of any other assistance with
the preparation, review, analysis, or completion of materials included in these kits in
person, in writing, electronically, or otherwise constitutes the unauthorized practice of law and
is therefore prohibited.
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