The legal services market continues to evolve, particularly online. Businesses and individuals can now access a wide range of legal documents and services from the Internet. While the changes create greater opportunities for lawyers and clients alike, they also generate potential problems with respect to regulation of the quality of law.
This article examines the difficulties that could be created when customers download “free” legal documents online.
Currently, there is no regulation of online document retailers. Whereas only a solicitor can provide legal advice (and must do so according to certain rules), anyone can draft a document, whether a pre-nuptial agreement or a shareholders’ agreement, and place it online. While the enormous advantage of having legal documents online is fast, inexpensive and convenient access, there are significant risks in terms of quality assurance.
There are costs to producing documents
This is particularly the case when a document is available for free. There is a cost of producing the document: for example, the forsaken time of the draftsman researching the law and writing the document, or the cost of hosting the document online. These are relatively small, but in aggregate they can be large. There has to be some benefit to the draftsman of drafting the document, but often it is not made clear what this is.
Fit for purpose?
Free legal documents create a further issue. Obtaining the document for free might be a greater concern for the user than obtaining a document fit for purpose, or of high quality. Not all legal documents are the same, even in cases where statute law largely governs the contents. For example, one employment contract may have clauses that protect confidentiality of the employer to a greater degree than another. Which is the better agreement depends on whether the clauses are needed by the end user. A company that creates or uses intellectual property may require them to a greater extent than one that doesn’t.
When a document is available to purchase, customers are more likely to assess quality and choose the most suitable document. Specialist retailers such as members of APOD use professional draftsmen (usually solicitors with significant experience and subject knowledge) to ensure quality. Although a legal document from an APOD member may cost, customers can be confident that the documents have been written by appropriately qualified, experienced draftsmen.
So why provide legal documents for free?
There are a number of reasons why legal documents can be downloaded for free online. Most relate to the promotion of other products or services.
First, it is worth mentioning that piracy of legal documents does exist. Usually, it is confined to shares of a document on an online forum, but occasionally, a website owner offers a free download of a document it doesn’t own. The former is unlikely to hurt the document retailer significantly, the latter may. But the real risk of downloading a pirated document is that the law in it may be out of date and invalid.
Free documents can be a tool to generate traffic to a webpage. The destination web page may contain advertising from which the site benefits financially. Alternatively, the document may be free, but the downloader must register his personal details and agree to accept e-mail advertising from the site. Whether the user is willing to trade receiving spam e-mail for a document is for the user to decide, but we would question the quality of a document given by a site that employs this tactic.
Promotion of other products
Free legal documents may be used as a promotion to sell other services. The big US document retailers offer free documents to attract potential customers who may later subscribe to their services. Likewise, portals do the same to attract people who may subscribe to receive a different service (usually in conjunction with receiving e-mail advertising).
Can free legal documents be of high quality?
The importance of using accurate, well drafted legal documents increases as the requirement for legal protection increases, i.e. when the probability of a negative outcome increases and when the value of the transaction is high.
The issues of quality in legal documents generally relate to:
- timeliness of the law in the document: the law changes regularly and what may be upheld by a court one day, may not the next. Changes to the law need to be reflected in legal documents immediately.
- reduction of the chance of misinterpretation: documents tend to record what may be done. It is easy to assume that terms not in the document don’t form the contract. However, statute law governs many areas of life, and much law binds two parties in a contract even if the terms have not been agreed explicitly. A well drawn legal document should draw attention to statute law, so that all parties are aware all obligations.
- sufficient inclusion of terms to achieve the purpose: contracts can be of varying length. For example, in a sale agreement, it might be sufficient to record the transaction and price. But it might be necessary, and more valuable to or both parties, to include additional provisions, for example, in our sale agreement, to include warranties by the seller that the product is in good condition.
High quality documents are expensive to write, even if they are less expensive to sell. Sites that give them away for free tend to have less incentive to draft high quality documents. Generally, the document is an attraction mechanism, and once the site visitor is attracted, the outcome from using the document is unimportant. Document retailers, however, have an incentive to maintain quality in order to gain repeat business and grow brand.
Indicators of quality
The following are all indicators of quality in a legal document, whether provided free or not:
- The retailer is a member of APOD.
- The reason for the offer is clear: either the document is being sold, or the rationale for offering free is disclosed.
- The draftsman is identified as an experienced, qualified professional.
- The document is written in clear, concise, non-technical language. Over-use of technical language suggests that the draftsman is inexperienced in reducing technical legal provisions into plain English. Moreover, verbose and incomprehensive language may be used in order to try to convince the reader that the document is real law.
- The document has been updated recently (or a process for review is described). Not all law changes regularly, but documents should be reviewed for changes regularly.
The availability of legal documents on the Internet carries with it both opportunities and risks for the end user. The key to managing risks is that the user can identify quality, regardless of the price.
There is a cost to drawing and maintaining a legal document. It is important to identify the benefit of offering a document for free to the website that does so, and what the price to the user might be, if not pecuniary.