The Divorce Kit Do-It-Yourself Mentality

Neither party to a divorce is required to engage a lawyer or obtain legal advice. So, why do it, or, as some TV ads have said, "Why burn up your money?" Why not just get a cheap divorce by buying a "set of papers", save all that money and use it to go to the beach? That's a fair and reasonable question, particularly given this writer's fondness for the Texas Gulf Coast! I'll answer the question by discussing two others and, in the context of Oklahoma Divorce & Modification Issues, let you reach your own conclusion.

   Are Divorce Kit Sellers Practicing Law?
   Do Divorce Kit Sellers Have Liability For Damages?

     ARE DIVORCE KIT SELLERS PRACTICING LAW?  Interesting question! To date, this author is aware of no trial or appellate court proceedings in Oklahoma which specifically answers this specific question. However, in other circumstances, the Oklahoma Supreme Court has made clear that persons who prepare legal documents and/or give advice associated with those documents are practicing law and may be civilly liable for damages resulting therefrom.

First, understand that the Oklahoma Legislature does not regulate the practice of law in Oklahoma. That is done by the Oklahoma Supreme Court. This legal "fact" has been established in and by several Oklahoma Supreme Court decisions. So, don't go looking for Oklahoma Statutes to answer the question, "What constitutes the practice of law?"  Whatever Oklahoma answers there are to this question are all in decisions by the Oklahoma Supreme Court.

Second, if you want to figure out whether sellers of divorce kits are practicing law, you'll  have to do some reading and interpreting. I'd suggest this Oklahoma Supreme Court decision as a good starting point since the decision covers a wide range of topics related to the question's answer: R.J. Edwards, Inc. v. Hert, 1972 OK 151, 504 P.2d 407.

In R.J. Edwards, the litigants were three prestigious bond companies (R.J. Edwards, Inc., Stifel Nicolaus & Company, Inc., and Milburn, Cochran & Company, Inc.) and the Oklahoma Bar Association (as well three county bar associations - the county bar associations were held to lack standing to sue, the court determining that exclusive authority to prohibit unauthorized practice of law rested with the OBA). Selections from the opinion follow:

¶2 These cases originated in the district courts of Payne, Major and Canadian Counties. Each was initiated by a petition against the respective defendants, municipal bond marketers and their agents, filed by the individual county bar associations, together with the Oklahoma Bar Association, to enjoin certain practices of the defendants, alleged to constitute the unlawful practice of law, by these defendants who were not members of the bar. The charges, in brief, were that the defendant corporations, who are engaged in negotiating for marketing, and also, themselves, in selling municipal bond issues and other types of securities, undertake, in that connection, to give legal advice to municipal authorities, to school boards, and to other representatives of entities who may be contemplating borrowing money through the issuance of bonds. It also is alleged that the corporate defendants, acting through their agents, the individual defendants, or through others, prepare resolutions, election proclamations, contracts, transcripts of bond proceedings and negotiable coupon bonds, all of which acts also are asserted to constitute the illegal practice of law by the defendants.
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¶15 Moreover, our position did not confine our exercise of powers to the conduct of lawyers or of others, either inside the courtroom or in direct connection with "forensic" matters. In Crawford v. McConnell, 173 Okl. 520, 49 P.2d 551 (1935), we held void and unenforceable a layman's contract described in the following terms:

"In the case at bar, the plaintiff bound himself by the terms of the contracts entered into with the various taxpayers to determine and decide for them the legality of the various tax levies made against their property. There are few questions in law that are more difficult than the determination of what constitutes a legal tax. A large number of cases are contained in the reported decisions of this court in which the only questions involved were those relating to the legality of tax levies by the various municipalities of this state. Yet the plaintiff by the terms of his contract proposes to determine these intricate questions for and on behalf of the taxpayers with whom he has made contracts and to prepare for such taxpayers protest notices, and for this service he expects to receive a compensation in the form of a stipulated contingent commission. Clearly we think this service should only be rendered to the public by one who has demonstrated his qualifications to advise on such matters in the manner required by law. * * *
". . . Clearly, we think the plaintiff by his contract undertook to perform a type of service which could only properly be performed by one who had demonstrated his qualifications by obtaining a license to practice law."
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¶16 In State Bar of Oklahoma v. Retail Credit Assoc., 170 Okl. 246, 37 P.2d 954 (1934), we held that a demurrer should not have been sustained against a portion of a petition which the opinion summarized briefly as follows:

"In this action the plaintiff seeks to enjoin certain acts, dealings, and conduct of the defendants, on the theory that in some instances they constitute the unauthorized practice of law; that they include a repeated and systematic holding out of the defendants as authorized to give legal advice and render legal services when defendants are wholly without such authority, and upon the theory that these, and additional acts of the defendants, constitute a fraud on the defendants' customers, and a fraud on the people and the public, and that such fraud is perpetrated in the name of certain legal and judicial phrases and by the use of pretended legal and judicial forms, and in pretense of familiarity with, and the right to use, the courts of Oklahoma in coercing and forcing the payment of money.
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¶19 Embedded in the defendants' briefs is the contention that the term "practice of law" is ambiguous and uncertain, and that we should define it with specificity before persons should be held to answer for derelictions in respect thereto. We pass by the obvious fact that statutes and judicial decisions, to which we have adverted, have employed "practice of law" with the apparent acquiescence of everyone that persons know what is meant thereby. We call attention to our statement in Crawford v. McConnell, supra:

"The preparation for a money consideration of legal instruments to be shaped from a mass of facts and conditions involving the application of intricate principles of law which can only be applied by a mind trained in existing laws in order to insure a specific result and to guard against other undesirable results comes within the term `practice of law.'"

We note further that, in Latson v. Eaton, 341 P.2d 247 (Okl. 1959), the defendant, not licensed to practice law, had prepared legal instruments for the plaintiff, described in the official syllabus as "promissory notes, deeds and mortgages", and that, citing State Bar of Oklahoma v. Retail Credit Assoc., supra, Conway-Bogue Realty Inv. Co. v. Denver Bar Assoc., 135 Colo. 398, 312 P.2d 998, and Paul v. Stanley, 168 Wash. 371, 12 P.2d 401 (1932), we stated that he had practiced as a lawyer would practice and was responsible to his "clients" for loss caused by his deficiencies.

¶20 Our decisions definitely spell out the concept of the practice of law: the rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent. This is a concept applied over and over again in other jurisdictions. State Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz. 76, 366 P.2d 1 (1961); Beach Abstract & Guaranty Co. v. Bar Assoc. of Arkansas, 230 Ark. 494, 326 S.W.2d 910 (1930); Arkansas Bar Assoc. v. Union Nat. Bank, 224 Ark. 48, 273 S.W.2d 408 (1954); Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358 (1958); Title Guar. & Trust Co. v. Denver Bar Assoc., 135 Colo. 423, 312 P.2d 1011 (1937); People ex rel. Illinois State Bar Assoc. v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901 (1931); People ex rel. Chicago Bar Assoc. v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693 (1948); State ex rel. Boynton v. Perkins, 138 Kan. 899, 28 P.2d 765 (1934); Depew v. Wichita Assoc. of Credit Men, Inc., 142 Kan. 403, 49 P.2d 1041 (1935); Frazee v. Citizens Fidelity Bank & Trust Co., 393 S.W.2d 788 (Ky. 1965); Fritchette v. Taylor, 191 Minn. 582, 254 N.W. 510, 94 A.L.R. 356; Liberty Mut. Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945 (1919); Hulse v. Criger, 363 Mo. 26, 247 S.W.2d 855 (Mo. 1952); Hoffmeister v. Tod, 349 S.W.2d 5 (Mo. 1961); State ex rel. Johnson v. Childe, 147 Neb. 527, 23 N.W.2d 720 (1940); People v. Alfani, 227 N.Y. 234, 125 N.E. 671 (1919); People v. Lawyers Title Corp., 282 N.Y. 513, 27 N.E.2d 30 (1940); Judd v. City Trust & Savings Bank, 133 Ohio St. 81, 12 N.E.2d 288 (1937); Oregon State Bar v. John H. Miller & Co., 235 Ore. 341, 385 P.2d 181 (1965); In re Morse, 98 Vt. 85, 126 A. 550 (1924); Washington State Bar Assoc. v. Washington Assoc. of Realtors, 41 Wash.2d 697, 251 P.2d 619 (1953); State ex rel. Reynolds v. Dinger, 14 Wis.2d 193, 109 N.W.2d 685. In view of our own prior statements, and of this long line of like statements elsewhere, it was unnecessary that we should otherwise have defined "practice of law" to include specific acts as a prerequisite to the exercise of the proper jurisdiction of the judicial department. There is authority elsewhere which so holds, Richmond Assoc. of Credit Men, Inc. v. Bar Assoc. of City of Richmond, 167 Va. 327, 189 S.E. 153 (1937); Washington State Bar Assoc. v. Washington Assoc. of Realtors, supra. We consider that authority persuasive and we follow it.

¶21 This is not to say that there may not be problems in respect to particular facts, or to the sound discretion which is ours in policing the practice of law. With some of these we shall deal later. But certainly it is unnecessary that we should attempt to anticipate every such problem and to write a detailed code describing every possible situation before the courts may exercise their unquestionable authority.

¶22 To avoid any misunderstanding which might be created by our reference in Crawford v. McConnell, supra, to the plaintiff's expectation of compensation for his services, we emphasize that a service which otherwise would be a form of the practice of law does not lose that character merely because it is rendered gratuitously.

     DO DIVORCE KIT SELLERS HAVE LIABILITY FOR DAMAGES?  In R.J. Edwards, Inc. v. Hert, discussed above, the Supreme Court held that only the OBA could bring an injunction action to prevent the unauthorized practice of law. What about the consumer... does he/she have any legal recourse if the papers don't accomplish what was expected and damages result?

After considering R.J. Edwards, Inc. v. Hert, think about the Supreme Court's decision in Latson v. Eaton, 1959 OK 124, 341 P.2d 247. R.J. Edwards was an injunction action by the OBA to prohibit the unauthorized practice of law - it was not a suit for damages.  Latson was different - it was a civil action for damages by "clients" against the non-lawyer who performed legal services. Following trial, a judgment was entered against a non-lawyer who prepared certain documents. The judgment for damages against the non-lawyer was affirmed on appeal:

[Syllabus by the Court] ¶0 A person not licensed to practice law who for hire prepares promissory notes, deeds and mortgages, is liable to his employer for any damages caused by his negligent preparation of such documents.

¶1 This is an appeal from a judgment for damages caused by defendant, a layman, improperly preparing certain legal documents for plaintiffs for hire.

[Ed note: The defendant attempted to avoid liability on the theory that, since he was not a lawyer, he could not be liable because the suit was based upon an attempt to enforce an “illegal” contract.]
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¶3 * * *  Instead, it [Plaintiff's opening statement to the jury] clearly indicates that the action is based upon tort for the wrongful acts of the defendant, therefore the above authorities are not applicable here.
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¶6 This rule was passed in the public interest and for the advancement of the administration of justice. It is regulatory in nature, limiting or licensing the practice of law. The practice of law is regulated for the benefit of the members of that class or segment of the public which might be injured if unskilled and untrained persons were permitted to practice the work or duties of the profession. A regulatory rule or statute is enacted for the benefit of those who might be injured in the absence of such regulation. Thus we are drawn to the inevitable conclusion that the plaintiff herein comes within the class of persons intended to be protected against the unlicensed and unlawful practice of law.

¶7 As to what constitutes the practice of law, we observe the case of Conway-Bogue Realty Inv. Co. v. Denver Bar Association, 135 Colo. 398, 312 P.2d 998, 999, wherein the court there held:

"Preparation of receipts and options, deeds, promissory notes, deeds of trust, mortgages, releases of encumbrances, leases, notice terminating tenancies, and demands to pay rent or vacate, by completing standard and approved printed forms, coupled with the giving of advice or explanation as to legal effect thereof, constitutes the `practice of law.'"

¶8 Also see State Bar of Oklahoma v. Retail Credit Association, 170 Okl. 246, 37 P.2d 954, and Paul v. Stanley, 168 Wash. 371, 12 P.2d 401.

¶9 The acts of the defendant definitely would constitute the practice of law under the above authorities. Since our code is similar to that of California, the construction given by the California court might well be applied in this case.

¶10 The liability of an unlicensed person to perform duties which have been construed as legal services, has been determined in the case of Biakanja v. Irving, Cal. App., 310 P.2d 63, 64, wherein the court held:
"Where defendant, who was a notary public and not a licensed attorney, acted as attorney and not as a scrivener when he drew will, the drawing of will was in violation of statute limiting practice of law to active members of State Bar, and this violation permitted sole beneficiary of will to recover from defendant the difference between amount beneficiary would have received had will been valid and amount actually distributed to her according to laws of intestate succession."

To complicate matter further, recall that Latson v. Eaton was an action based in "tort", not an action based on contract liability. A "tort" is committed when one person violates a non-contractual duty owed to another, e.g., "negligence", "fraud", "assault and battery" and the like. Latson v. Eaton doesn't say what type of "tort" was involved - negligence, strict liability in tort, whatever.

If based upon negligence, is "assumption of the risk" a defense by the non-lawyer who prepared the papers and/or gave advice? And, what about "comparative negligence"? In 1959, when Latson v. Eaton was decided, "comparative negligence" did not exist in Oklahoma law. In 1973 Oklahoma adopted a "comparative negligence" statute. The current version of this statute reads:

23 O.S. §13. Comparative negligence.
In all actions hereafter brought, whether arising before or after the effective date of this act, for negligence resulting in personal injuries or wrongful death, or injury to property, contributory negligence shall not bar a recovery, unless any negligence of the person so injured, damaged or killed, is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged or killed, is of greater degree than the combined negligence of any persons, firms or corporations causing such damage.

But, "comparative negligence" (i.e., that the negligence of persons using divorce kits might offset the negligence of those who prepare and/or sell them) would probably not apply if divorce kit sellers have "strict liability in tort" for violation of 5 O.S., Ch. 1, App. 1, Rules Creating and Controlling the Oklahoma Bar Association, §7 of which reads:

(a) No person, corporation, partnership, or any other entity (hereinafter collectively referred to as "person") shall practice law in the State of Oklahoma who is not an active member of the Association, except as herein provided.
(b) Any member of the Association who shall have been adjudged to be insane, mentally incompetent, or mentally ill shall not practice law, and shall not be required to pay dues during the continuation of such adjudication.
(c) It shall be the duty and responsibility of this Association, acting through the Professional Responsibility Commission, to investigate and to seek judicial action to prevent the unauthorized practice of law by any person, and to take appropriate action to enforce any lawful orders issued in such proceedings.

The Oklahoma Supreme Court has not had occasion to determine whether its prohibition against lay-practice-of-law carries with it "strict liability in tort" to "clients" as a consequence of doing so or if violation of such prohibition would be based on common law negligence or other tort theory. Should it adopt a "strict liability" approach, any negligence of the "clients" would presumably be irrelevant. Otherwise, possibly not.

So, ponder your own answers to the questions:

   Are sellers of divorce kits practicing law?
   If they are, are they civilly liable for the work they do for you?
   How does the "client's" decision to utilize such services in the first place figure into the mix? After all, didn't the "client" know these people were not lawyers and wasn't he/she partly responsible for the aftermath?
   If the decree is dumbly prepared and is capable of being fixed,  will it cost more to fix the problem after divorce, or before? If it can't be fixed, what's the name of the creek you are up?