Hello and welcome to this Ethics Alert blog which will discuss the recent (July 20, 2016) Order approving the settlement of an Ohio unauthorized practice of law (UPL) complaint filed by the Cleveland Metropolitan Bar Association (CMBA) against an online mechanic’s lien settlement software maker called Express Lien, Inc. (d/b/a Zlien) and dismissing the complaint. The case is Cleveland Metropolitan Bar Association v. Express Lien, Inc. dba Zlien et al, case number Case No. UPL 15-01. The Ohio Supreme Court UPL Board’s Order approving the settlement and dismissing the complaint is here: https://www.supremecourt.ohio.gov/Boards/UPL/settlement/UPL15-01.pdf
The CMBA filed the UPL complaint in May 2015 against Express Lien Inc. (Zlien) alleging that it was enabling non-lawyers to practice law in Ohio. Zlien claimed that its platform streamlined the process of filing lien documents by facilitating the filing of those documents by its users and that it was not engaging in or enabling UPL.
According to the Order, the UPL complaint alleged that Zlien was illegally practicing law when Zlien “Director of Client Experience” Gretchen Lynn allegedly prepared, signed and attempted to file a lien against an Ohio property on behalf of Midwest Interiors LLC. The complaint stated that Ms. Lynn was not a lawyer in Ohio and Zlien was not registered with the Ohio Secretary of State.
The Cuyahoga County Fiscal Office rejected the lien because it was filed 33 days past the 75-day window to file. The CMBA then initiated an investigation which led to the filing of the complaint. Zlien stated that the affidavit was completed using aggregated information and it is “a technology powered scrivener” that “merely copies verbatim” user provided information.
In response to the UPL complaint, Zlien file a lawsuit in Louisiana federal court in July 2015 against the CMBA, the Ohio State Bar Association, and other entities and individuals alleging, inter alia, that the Bar was attempting to unconstitutionally restrict commercial or political speech and engaging in unfair trade and competition practices in applying and enforcing Ohio’s UPL statutes. Zlien’s federal lawsuit is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/express_lien_complaint.authcheckdam.pdf
Zlien’s federal complaint cited to the 2015 U.S. Supreme Court decision in North Carolina State Board of Dental Examiners which struck down the enforcement of regulations by North Carolina’s dental board, which had attempted to prohibit teeth whitening by non-dentists. In that case, the Supreme Court stated that the regulation of a profession by licensees in the same profession violated federal antitrust laws.
The UPL settlement agreement states that Zlien has agreed not to sign any mechanic’s lien affidavits unless it is a party or can practice law in the jurisdiction. The company also agreed not to select the property descriptions inserted in lien affidavits or advise customers on which property descriptions to use. Zlien also agreed to require its users to sign generated lien documents themselves rather than appointing the company to sign for them through power of attorney.
Zlien issued a public statement through its chief legal officer related to the settlement: “Technology has advanced to the point where it can put groups that change at a slower pace – like bar associations – in unfamiliar and potentially uncomfortable situations.” “Software can’t practice law, and people still need lawyers for certain tasks, but things that technology can do are not the things for which lawyers are required.”
Bottom line: This is more fallout from the U.S. Supreme Court’s 2015 North Carolina dental whitening decision and also involves an online legal document generator/provider. The case is North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13–534. (USSC February 25, 2015) and the opinion is here: https://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf. My Ethics Alert blog discussing the case is here: https://jcorsmeier.wordpress.com/2015/03/17/u-s-supreme-court-opinion-finds-that-there-is-no-automatic-antitrust-immunity-for-state-professional-licensing-boards/ and a recent list of other cases which have been filed after that decision is here: https://media.nasba.org/files/2015/12/2016-0714-Board-Immunity-Cases-Table.pdf
Stay tuned and be careful out there.
Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.
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Joseph A. Corsmeier, Esquire
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