DoNotPay Cases Underscore Hurdles For AI-Fueled Legal Help

This article originally appeared in Law360.com on April 5, 2023.

The consumer advocacy startup, DoNotPay Inc., presents its application DoNotPay, which uses the slogan “The World’s First Robot Lawyer,” as a tool for protecting consumers from unscrupulous corporate gouging that is a more affordable substitute for hiring a lawyer.[1]

But the company has been embroiled in controversy and conflict with the legal profession ever since it claimed to have an artificial intelligence-driven product that could argue a case in court.[2]

It wasn’t long before lawyers and bar associations started contacting DoNotPay’s founder and CEO Joshua Browder, warning him that if he continued to offer such legal services through the app, he could be prosecuted for the unauthorized practice of law.[3]

Soon thereafter, another blow arrived in the form of a pre-suit petition for discovery ahead of a potential consumer fraud claim by Kathryn Tewson, a paralegal claiming not only that the robot lawyer was not really a lawyer, but that it was also not really a robot.[4]

As the temperature of the discourse continued to rise, more legal troubles for the startup approached. The first lawsuit against DoNotPay based on the offering of its AI-fueled legal services arrived last month, with the possibility for more litigation on the horizon.[5]

These developments raise some pressing questions about whether and to what degree AI technology can perform legal tasks, while also remaining on the right side of both unauthorized practice and consumer protection laws.

Actions Against DoNotPay

On March 3, a class action was filed in the Superior Court of California, San Francisco County, by Jonathan Faridian as the named plaintiff against DoNotPay, claiming the defendant engaged in “unlawful, unfair, and/or fraudulent business practices” in violation of California’s Unfair Competition Law.[6]

The complaint highlights DoNotPay’s display of the slogan, “The World’s First Robot Lawyer,” on its website, along with snapshots marketing other services such as “Defamation Demand Letters,” “Create a Power of Attorney,” and “Sue Anyone in Small Claims Court” and a clickable button marked “Solve This Problem For Me.”

It alleges that, although “DoNotPay is not a lawyer or law firm,” the website “offers customers the ability to purportedly hire a lawyer at the click of a button to handle a variety of legal matters,” and that Faridian in fact “believed he was purchasing legal documents and services that would be fit for use from a lawyer that was competent to provide them.”

Faridian further alleges that the services provided to him “were substandard and poorly done.”

In short, the Faridian complaint focuses on the “lawyer” part of “World’s First Robot Lawyer” and claims that, although DoNotPay holds itself out as one, it is not, in fact, a lawyer.

Another case, the recently dismissed petition for pre-action discovery in New York State Supreme Court, New York County, in Tewson v. DoNotPay, focused on the other part of the robot-lawyer slogan, suggesting that contrary to DoNotPay and Browder’s claims, the app is not really a robot, claiming “DoNotPay does not actually have any AI or ‘robot’ undergirding its systems.”[7]

Both cases raise several questions about the kinds of legal or quasi-legal services marketed and offered by DoNotPay, and the unauthorized practice of law.

Is there AI, or is there human agency behind the supposed legal products? If human, are those humans lawyers, or not? If AI, can it actually perform complex legal tasks, or is it merely another species of form-filling?

Potential Human Involvement and the Unauthorized Practice of Law

Since the New York court dismissed Tewson’s petition for pre-action discovery, we do not know whether or how DoNotPay employs AI for delivering its legal products, or whether or how it uses human researchers, drafters or lawyers.

If we assume at least some human involvement in creating the legal document output from DoNotPay’s marketed services, it raises several issues that potentially face those individuals.

The class action against DoNotPay is styled as an unlawful, unfair or fraudulent business practices claim, with the unauthorized practice of law as the unlawful conduct at its heart.

California’s State Bar Act, which prohibits the unauthorized practice of law, is enforceable against a natural person, either through a criminal complaint or a private right of action by a consumer, and a claim pursuant to the Unfair Competition Law may be brought directly against DoNotPay.[8]

But the question remains whether Browder or other employees of DoNotPay could be held liable under the unauthorized practice of law, or UPL, statutes of California or any other jurisdiction.

And if there is unauthorized practice of law within DoNotPay’s business model, it could meet the unlawful element of the unlawful business practices claim against DoNotPay.

Based on the allegations in the Faridian complaint and the Tewson petition, any nonlawyer involved in generating some of the marketed legal products for a DoNotPay customer, such as a defamation demand letter, power of attorney or small claims court complaint, risks running afoul of the UPL statutes in multiple U.S. jurisdictions.

On the other hand, any lawyer involvement could also implicate several rules of professional conduct, such as competence; exercise of independent professional judgment; frivolous claims and candor to the tribunal; conflicts of interest; and confidentiality, as well as restrictions on the types of entities that are permitted to practice law, even if using licensed attorneys.

The claims in these pleadings, however, allege no attorney involvement in the delivery of DoNotPay’s legal services.

New York’s UPL statute specifically prohibits any person who has not been admitted to practice as an attorney or counselor in the courts of record from asking for or receiving compensation for, among other things, preparing “instruments affecting real estate,” “instruments affecting the disposition of property after death” or “pleadings of any kind in any action brought before any court of record in this state.”[9]

And in California, the broad definition of what constitutes the practice of law in violation of the State Bar Act if performed by a nonlawyer was interpreted in the 1970 California Supreme Court decision in Baron v. Los Angeles to include:

legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.[10]

Under both definitions, the preparation of a power of attorney or a civil complaint, even in small claims court, could fall within the practice of law.

In fact, if the legal products at issue involve the application of facts to law beyond simply providing a form for the consumer to populate, courts could consider that to be the unauthorized practice of law.[11]

It should be said, DoNotPay’s website includes a disclaimer stating: “We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation.”[12]

However, even disclaimers have been found to be ineffective in rebutting the existence of an attorney-client relationship in the context of the unauthorized practice of law.[13]

AI-Generated Legal Documents and Alleged Consumer Fraud

Even assuming that artificial intelligence alone is responsible for generating the output of DoNotPay’s marketed services and products, the Faridian complaint and the allegations in the Tewson petition would still leave the defendant to contend with the consumer fraud claim.

On its website, in its marketing and in press statements by Browder, DoNotPay touts the capability of the robot lawyer to actually do the work of a lawyer to a degree that can compete with traditional legal services.

According to allegations in the lawsuits filed so far, however, DoNotPay fails to deliver on its promise to meet the standard of competence that would make its legal products and services usable.

In addition, the claims allege that DoNotPay’s offering of its legal services and products falsely indicates the involvement of a licensed legal professional at some point in their delivery.

The UPL claims underlying these cases go hand-in-glove with the consumer fraud causes of action, since the fundamental purpose behind prohibiting the unauthorized practice of law is protecting consumers of legal services from losing their property or having their rights unprotected due to unverified, incompetent legal services.

As the Faridian complaint aptly points out:

Providing legal services to the public, without being a lawyer or even supervised by a lawyer … has real world consequences for the customers it hurts.

Ironically for DoNotPay, whose stated mission is to champion the consumer, it is facing potential liability for allegedly harming the very consumers it set out to protect.

Whether DoNotPay’s legal products are entirely AI-driven or involve actual people, the allegations in the emerging litigation place it between a rock and a hard place.

Either there are people involved who may be engaged in the unauthorized practice of law, or the AI, which the lawsuits claim DoNotPay touts as a substitute for actual, competent legal services by a professional, allegedly cannot perform as promised.

In other words, these lawsuits contend that if the “World’s First Robot Lawyer” is a lawyer, it is misleading consumers about being a robot; if it is a robot, then it is misleading them about being a lawyer. Whatever it is, it cannot be both.

Kristen Niven is an associate at Frankfurt Kurnit Klein & Selz PC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See https://donotpay.com/about/.

[2] https://twitter.com/nypost/status/1611049563829243908.

[3] https://gizmodo.com/donotpay-robot-lawyer-ai-parking-ticket-1850031456.

[4] Tewson Petition, available at https://s3.documentcloud.org/documents/23609120/tewson-donotpay.pdf.

[5] Counsel for Kathryn Tewson said they are “looking to file a class action under various consumer protection laws, including under New York General Business Chapter 20, Section 349.” https://www.law360.com/pulse/articles/1588834.

[6] Faridian Complaint, available at https://www.law360.com/pulse/articles/1583415/attachments/0.

[7] Tewson Petition.

[8] See e.g., LegalForce RAPC Worldwide P.C. v. Demassa , No. 18-CV-00043-MMC, 2019 WL 6841388, at *1 (N.D. Cal. Dec. 16, 2019) (in which the plaintiff alleged the defendant engaged in the unauthorized practice of law, thus violating “‘the unlawful prong’ of§ 17200 “).

[9] N.Y. Judiciary Law § 484.

[10] Baron v. City of Los Angeles , 2 Cal. 3d 535, 542, 469 P.2d 353, 357 (1970)

[11] See, e.g., In re Bernales , 345 B.R. 206, 216 (Bankr. C.D. Cal. 2006) (“[p]lugging in solicited information from questionnaires and personal interviews to a pre-packaged bankruptcy software program constitutes the unauthorized practice of law”).