100 N.J.L.J. 893
October 6, 1977
Do-It-Yourself No-Fault Divorce Kits
Does the advertisement and sale to the general public of a do-
it-yourself divorce kit containing necessary forms to be utilized
to obtain, pro se, a New Jersey no-fault divorce, together with
related textual instructions, constitute the practice of law?
This Committee recently answered the above question in the negative in a specific case involving a women's organization distributing a manual entitled "New Jersey Guide to Pro Se Divorce," designed for use in a truly routine uncontested no-fault divorce case (defined by the organization itself in the manual, at page 4, as one "where the cause of action is 18-month separation, no-fault, and your spouse is not contesting the divorce itself or any collateral issues such as support, custody, visitation, or distribution of property or debts"). In thus acting, the Committee elected to follow what might be called the liberal view on the question in this country, expressed by courts in a number of jurisdictions, including New York, Oregon and Michigan, as opposed to the conservative view represented by Florida, Texas and this Committee's Opinion 3, 94 N.J.L.J. 17 (January 14, 1971). The cases are collected in an annotation in 71 ALR 3d 1000 (1976), entitled "Sale of Books or Forms Designed to Enable Laymen to Achieve Legal Results Without Assistance of Attorney as Unauthorized Practice of Law."
Several cases in the Supreme Court of the United States which have come down since this Committee's Opinion 3, supra, 94 N.J.L.J. 17, have resolved the underlying constitutional question of "commercial speech" which was held to be protected by the First Amendment, made applicable to the states through the Fourteenth Amendment. Bigelow v. Virginia, 421 U.S. 809, 44 L. Ed. 2d 600, 95 S.Ct. 2222 (1975); Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 48 L. Ed. 2d 346, 96 S.Ct. 1817 (1976); Linmark Associates, Inc. v. Willingboro, - U.S.-, 52 L. Ed. 2d 155, 97 S.Ct. 1614 (1977); Bates v. State Bar of Arizona, - U.S.-, 53 L. Ed. 2d 810, 97 S.Ct. - (1977). Under these cases this Committee is no longer free to choose between the dangers of suppressing truthful information and the dangers arising from its free flow. That is the choice "that the First Amendment makes for us." Virginia Pharmacy Board v. Virginia Consumer Council, supra, 425 U.S. at 770.
Nothing in the foregoing First Amendment cases prohibits this State from regulating any advertising or any do-it-yourself legal kit that is false, deceptive or misleading or from requiring that there be an adequate warning or disclaimer or the like so as to assure that the consumer is not misled. Bates v. State Bar of Arizona, supra, - U.S.-, 53 L. Ed 2d at 835-836, 97 S.Ct. at -. This State has laws to protect consumers from such situations, most notably the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. Under the First Amendment, the remedy cannot be the blanket suppression of all do-it-yourself legal kits or of all advertising to the general public as to the availability of such kits, be they for divorce, probate, bankruptcy, formation of a corporation, or the like. Accordingly, this Committee's Opinion 3, supra, 94 N.J.L.J. 17, is hereby overruled. Moreover, to the extent that any question arises in the future as to whether any such advertising or do-it- yourself legal kit is false, deceptive or misleading or lacks adequate warning or disclaimer, this Committee proposes to refer all such matters to the appropriate consumer agency of this State. The test as to whether this Committee has jurisdiction in the case under R. 1:22 is whether or not there is any unauthorized practice of law involved, not whether there is any consumer fraud.
Now following the New York, Oregon and Michigan view of the related unlawful practice question presented, this Committee finds a significant distinction between the mere advertisement and sale of do-it-yourself legal kits (here held not to constitute the practice of law) and any personal contact between the distributor of the kit and its customers in the nature of "consultation, explanation, recommendation or advice or other assistance in selecting particular forms, in filling out any part of the forms or suggesting or advising how the forms should be used in solving the particular customer's marital problems." The Oregon Supreme Court strictly enjoined the quoted conduct by non-lawyers as constituting the practice of law because the relationship which developed between the parties was tantamount to that of attorney and client. Oregon State Bar v. Gilchrist, 538 P.2d 913 (Or. 1975). That distinction, we think, is compelled by our own Supreme Court's holding in N.J. State Bar Ass'n v. Northern N.J. Mtge. Associates, 32 N.J. 430, 444 (1960), that the drawing by a non-lawyer of legal instruments for others "is clearly within the traditional definition of the practice of law and nonetheless so where the drawing consists in the filling in and completion of legal forms." See also Grievance Committee of Bar of Fairfield C. v. Dacey, 222 A. 2d 339 (Conn. 1966); and the Declaration of Principles jointly adopted May 24, 1941 by the American Bar Association's Standing Committee on Unauthorized Practice of the Law and a Committee of Publishers, reproduced in the 1977 Martindale-Hubbell Law Directory, Vol. VI, at pp. 80C-81C.