ARCHIVED: AALL Government Relations Office: Court Filing; Plaintiffs' Original Petition for Declaratory Judgment

TO THE HONORABLE JUDGE OF THIS COURT:

The above-named Plaintiffs hereby file this Original Petition for Declaratory Judgment and would respectfully show the Court as follows:

1. INTRODUCTION AND SUMMARY.

   1. This is a lawsuit seeking a declaratory judgment as to the legal status in Texas of Plaintiff Nolo Press' self-help legal publications. A state agency known as the Unauthorized Practice of Law Committee ("UPLC") has declared that self-help legal publications constitute the "unauthorized practice of law," and is seeking to ban publications similar to Nolo Press' from the State of Texas. The uncertainty regarding the legal status of Nolo Press' publications - which until now have been sold throughout the United States and Texas without question for almost 30 years - prompts Nolo Press and the other Plaintiffs in this lawsuit to seek clarification pursuant to the Texas Declaratory Judgment Act.

   2. Nolo Press is joined in this lawsuit by two library associations representing more than 12,000 members and by six individual residents of Texas ("the Individual Texans"). The Texas Library Association and the American Association of Law Libraries are participating because their members acquire Nolo Press publications for their library collections, and make those publications available to their library users. They believe that Nolo Press' publications are valuable and want to confirm their right to continue to make those publications available. The Individual Texans typify the thousands of people who have obtained and used Nolo Press publications in the past. They join this lawsuit to protect their right to receive and use those publications in the future, and to decide for themselves whether to handle their own legal matters.

   3. The publication, sale and distribution of books and software that aid individuals in drafting their own legal documents is not the "practice of law." An essential element of any law practice is missing: a client who understands that he or she has hired a lawyer to provide personalized advice and service. Every other state in the country to consider this issue has concluded that legal forms that contain explanations or instructions that aid a person in creating his or her own documents is not practicing law. Only the Texas UPLC contends otherwise.

   4. The Texas Constitution guarantees the right to publish, distribute and use information about this country's legal system, and it guarantees the right of Texas citizens to represent themselves in court and to handle their own legal matters if they choose. Publishing texts that help people understand our legal system and represent themselves is not the exclusive province of licensed members of the State Bar of Texas.

   5. In order to address the legal uncertainty currently surrounding Nolo Press' entire line of publications, the Plaintiffs seek a judicial declaration confirming that Texas law does not, and constitutionally cannot, define the publication of books and software as "the unauthorized practice of law."

2. THE PARTIES.

   1. The Plaintiffs.

      6. Nolo Press/Folk Law, Inc. ("Nolo Press"). Nolo Press is a California corporation with its principal place of business in Berkeley, California. Nolo Press is one of the nation's largest publishers of self-help legal books and software. Its publications are distributed and sold throughout the United States, including within the State of Texas.

      7. The Texas Library Association ("TLA"). TLA is a membership association organized as a Texas non-profit corporation with its headquarters in Travis County, Texas. It is the largest state library association in the United States. Established in 1902, TLA has over 7,200 members employed in all types of libraries: academic, public, school, and special. TLA's membership also includes library users, supporters and vendors. TLA was established to promote and improve library services in Texas. Its objectives include (1) encouraging the identification, development, and maintenance of library services which will meet the informational, cultural, educational, and recreational needs of the citizens of Texas; (2) increasing the effectiveness of libraries; (3) advancing the standards and ideals of the profession; (4) increasing attention to intellectual freedom and social responsibility as an action-oriented association; and (5) working cooperatively with other associations and organizations in developing joint activities which relate to the provision of library services, the selection, distribution and use of books and other materials, the support of intellectual freedom, and the enhancement of educational opportunities. TLA's members across Texas purchase and maintain Nolo Press' publications as part of their libraries' collections, and they make these publications available to all the citizens of Texas. TLA joins this lawsuit on its own behalf and on behalf of its members in order to protect the right to acquire and distribute Nolo Press' valuable publications, and to protect library users' right to access and use these publications.

      8. The American Association of Law Libraries ("AALL"). AALL, headquartered in Chicago, Illinois, is a not-for-profit membership organization incorporated in the District of Columbia. It was founded in 1906 to promote and enhance the value of law libraries to the public, the legal community, and the world; to foster the profession of law librarianship; and to provide leadership in the field of legal information. Today, with over 4,800 members nationwide and nearly 220 members in the state of Texas, the Association represents law librarians and related professionals who are affiliated with a wide range of institutions, including law firms, law schools, corporate legal departments, courts, and state, court and county public law libraries. AALL's members recognize that the availability of legal information to all people is a necessary requirement for a just and democratic society. Law librarians in Texas include the purchase of Nolo Press' self-help materials as part of their library's collection development plans and witness the benefits to the public of Nolo Press' high quality self-help publications. Law librarians in Texas, including AALL's members, would like to be free to continue to acquire Nolo Press publications in the future and to continue to make them available to their users with no constraints as to who may access them or the purpose to which they may be put.

      9. James S. Arrington. Mr. Arrington is retired from the electronics business and the medical field. He formed a construction business in Texas in conjunction with one of his sons, and he formed a manufacturing business in Tulsa, Oklahoma with another one of his sons. Mr. Arrington formed the Texas corporation with the help of a publication by Nolo Press. For the Oklahoma corporation, Mr. Arrington elected to hire an attorney. He knows the difference between buying a book and hiring an attorney, and he believes he has the right to make an informed decision as to whether to choose to hire an attorney in a given situation. He joins this lawsuit in order to preserve his right to make that choice, and his right to purchase and use Nolo Press publications in Texas in the future.

      10. Tammy L. Meek. Ms. Meek is a resident of Williamson County, Texas. She is a claims representative for an insurance company, and an unmarried woman in her 20's. Her family lives outside of Texas. Ms. Meek prepared her own will and her own medical directive with the help of Nolo Press' Willmaker software. As her life circumstances change, Ms. Meek anticipates that she will need to update these legal documents and create other documents regarding her personal and legal matters. She believes she has a right to choose whether to prepare documents for herself or to pay a lawyer to do so. She is joining in this lawsuit in order to preserve her right to obtain and use information about the legal system, to buy and use Nolo Press' publications, and to represent herself, if she chooses, in matters effecting her legal rights.

      11. Carol Janes Moya. Ms. Moya is a is a resident of Travis County, Texas. A number of years ago, Ms. Moya successfully represented herself in a divorce proceeding, and drafted a divorce decree with the aid of a Nolo - Occidental publication that was signed and entered by a Travis County District Judge. She has also prepared her own will using a Nolo Press publication, and has bought the Nolo Press book How to Form a Texas Corporation. She would like to continue to be able to buy or borrow from libraries Nolo Press publications in the future in Texas. Ms. Moya contends that she has the right to prepare her own legal documents and to have free access to information about the legal system and tools to help her do so. She is joining in this lawsuit in order to preserve her right to obtain and use information about the legal system, to buy and use Nolo Press' publications, and to represent herself, if she chooses, in matters effecting her legal rights.

      12. Cynthia M. Russell. Ms. Russell is a resident of Travis County, Texas. She is an expert on public school finance and she owns and operates a sole proprietorship consulting business named Cindy M. Russell, Consulting. She has used Nolo Press' publications in the past for her personal use and for her business, including Willmaker and Small Business Legal Pro software. Ms. Russell believes she has a right to obtain information about the legal system and to make her own choices about where to get that information and how to use it. Ms. Russell joins in this lawsuit in order to preserve her right in the future to obtain and use information about the legal system, to buy and use Nolo Press' publications, and to represent herself, if she chooses, in matters effecting her legal rights.

      13. Randall R. Walker. Mr. Walker is a resident of Travis County, Texas. He is an environmental engineer, and he owns and operates his own business, Walker Engineering Services. Mr. Walker has used Nolo Press' Small Business Legal Pro in his business. He knows the difference between hiring a lawyer and buying software, and he believes he has the right to decide himself whether and when to spend the finite funds available to his business on a lawyer, or to draft simple documents and agreements himself. He joins this lawsuit to preserve this right, and to preserve his right to purchase and use Nolo Press publications in the future.

      14. Michael R. Whitworth. Mr. Whitworth is a resident of Travis County, Texas. He is the owner of a small custom computer programming business called Austin Automation. Mr. Whitworth is an experienced businessman who has used Nolo Press' publications in his business, including the publication Software Development, A Legal Guide. He understands the difference between hiring a lawyer and purchasing a book or computer software, and he believes he has the right to draft his business' contracts himself, if he chooses, and to use Nolo Press' publications to help him do so. Mr. Whitworth joins this lawsuit to preserve his right to freely obtain information about the legal system, and to purchase and use Nolo Press' publications in Texas in the future.

   2. The Defendant.

      15. The Unauthorized Practice of Law Committee ("UPLC"). The UPLC is a state agency established by Texas Government Code § 81.103. The UPLC is empowered to enforce Texas' legal prohibition against the unauthorized practice of law by investigating and bringing civil injunction lawsuits. Tex. Gov't Code § 81.103. The UPLC consists of nine members appointed by the Texas Supreme Court, at least three of whom must be non-lawyers. Tex. Gov't Code § 81.103(b). The UPLC's current members consist of (and upon information and belief, has always consisted of) the maximum number of lawyers, six, and the minimum number of non-lawyers, three. The UPLC can be served by serving its Chairman, Rodney Gilstrap, at 315 Courthouse, 200 West Houston Street, Marshall, Texas 75670 or at Post Office Drawer A, Marshall, Texas 75671.

3. JURISDICTION AND VENUE.

   16. This lawsuit is brought under the Texas Uniform Declaratory Judgment Act. Tex. Civ. Prac. & Rem Code § 37.001, et seq. This Court has subject matter jurisdiction pursuant to Tex. Const. Art. 5, § 8 and Tex. Gov't Code §§ 24.007 & 24.008. Venue is proper in Travis County District Court pursuant to Tex. Civ. Prac. & Rem. Code §§ 15.002(a)(1) & 15.005. Because this lawsuit challenges the constitutionality of a state statute, the Plaintiffs will deliver a copy of this Original Petition to the Attorney General of Texas.

4. THE FACTS.

   17. Nolo Press is a highly-respected publisher of legal books and software written in a way that the average intelligent person can understand and use. Founded in 1971 by two former legal aid lawyers, Nolo Press now publishes well over 100 titles. Nolo Press has an in-house staff of writers that currently includes ten trained attorneys. Nolo Press also contracts with outside attorneys to write books that Nolo Press then edits and publishes. While the overwhelming majority of Nolo Press' publications are written by attorneys, its publications are not written by members of the Texas Bar.

   18. Nolo Press' Spring 1999 catalogue is attached as Exhibit 1. An alphabetical list of Nolo Press products available for sale on its Web site is attached as Exhibit 2. A small sampling of Nolo Press' publications include:

   • Beat Your Ticket: Go to Court and Win!
   • Using Divorce Mediation: Save Your Money and Your Sanity
   • How to File for Bankruptcy
   • Sexual Harassment on the Job: What it is & How to Stop It
   • A Legal Guide for Lesbian and Gay Couples
   • The Criminal Law Handbook: Know Your Rights and Survive the System
   • 101 Law Forms for Personal Use
   • Leases & Rental Agreements
   • Legal Guide for Starting and Running a Small Business
   • The Corporate Minutes Book: A Legal Guide to Taking Care of Corporate Business
   • How to Form Your Own Texas Corporation
   • Music Law: How to Run Your Band's Business
   • The Employer's Legal Handbook
   • Software Development: A Legal Guide
   • Make Your Own Living Trust
   • Neighbor Law
   • Dog Law

   19. Many of Nolo Press' publications include a computer diskette which aids in preparing forms or documents that are discussed in the books. Nolo Press publishes an acclaimed line of software, including Small Business Legal Pro 3, LLC Maker, Living Trust Maker and Willmaker. Nolo Press' software publications help automate the process of choosing, preparing, revising and printing legal documents and forms, and they include useful hyperlink tools to provide helpful information about the law and the process of preparing legal documents. Nolo Press also sells, directly from its Web page, a line of electronic products. See Exhibit 3, attached.

   20. Nolo Press sells its publications directly to customers via mail order and its Web site. Nolo Press also distributes its publications to be sold by bookstores and booksellers such as Borders Books, Barnes & Noble, B. Dalton, Bookstop and Amazon.com.

   21. Nolo Press' publications have been favorably reviewed across the country. For example, Forbes called Nolo Press "the masters of personal law software." Newsweek called Nolo Press' book How to File for Bankruptcy "a do-it-yourself bankruptcy book for people who can't afford expensive lawyers." Forbes described Chapter 13 Bankruptcy as "An excellent book that can guide you through the [Chapter 13] process." The Dallas Morning News opined that "Legal self-help books from Nolo are the best available." Nolo Press' Social Security, Medicare and Pensions was reviewed by Senior Times as having been "Written with clear, complete explanations that will explain how benefits can actually be claimed, how and when to file claims, and more." The Library Journal commented on The Quick and Legal Will Book by saying that Nolo Press had "proved again that they can offer a simple but not oversimplified explanation of a legal concept...Most libraries will want to add The Quick and Legal Will Book." The Chicago Sun-Times wrote: "I recommend the book Copyright Your Software, by attorney Stephen Fishman. Read it before seeking a copyright lawyer."

   22. Nolo Press' publications are the modern expression of a long tradition of publishing materials aimed at helping people understand and handle some of their own legal affairs. For instance, in 1876, the year that Texas adopted its current Constitution and the free speech and press provision it contains, the shelves of public and private libraries contained John Sayles' book, A Manual of the Laws of Business, with Forms for Business and Legal Transactions in the State of Texas. The introduction to Mr. Sayles' book stated over 120 years ago:

   The mercantile classes, for whom works of this character are chiefly designed, are at the present day so generally educated and enlightened that it is not a matter of surprise they should desire to understand the general principles of law which govern their ordinary business transactions, and to be independent of professional assistance in putting their ordinary agreements into legal form. Such a desire is not only natural but is reasonable and praiseworthy, and may be safely indulged within the limit indicated.

   Numerous other self-help legal publications were available in Texas at the time the current Constitution was adopted, including John Well's Every Man His Own Lawyer (1857); I.R. Butts' The Business Man's Law Library and Practical Assistant, Designed for Merchants, Mechanics, etc. (1859); and Franklin Chamberlin's American Commercial Law Relating to Every Kind of Business with Full Instructions and Practical Forms Adapted to all the States of the Union (1869). See Exhibit 4, attached. Like Nolo Press' publications, these texts assumed that the citizens of this State and nation were intelligent enough to handle, with help, their own simple legal affairs and could choose themselves whether and when to consult a lawyer.

   23. Nolo Press' publications are found in libraries across Texas. In the Travis County area alone, many Nolo Press publications can be found in the Austin Public Library, the University of Texas libraries, the State Law Library and the Travis County Courthouse library. See Exhibit 5, attached. The Houston Public Library alone has purchased some 2,250 Nolo Press publications in the last three years.

   24. Not only do Texas librarians choose to acquire Nolo Press' publications for their collections, Nolo Press' books are mandated by consent decree to be contained in at least one Texas law library. In what the parties described as "a good faith attempt...to remedy a past inadequacy and ensure that all present and future inmates of the Orange County Jail enjoy their full constitutional right of access to the courts," a consent decree mandates that the Orange County Jail facility maintain in its library the Nolo Press publication Legal Research: How to Find and Understand the Law, the Nolo - Occidental publication How to Do Your Own Divorce in Texas, and a number of other self-help legal publications including the Prisoner's Self-Help Litigation Manual, Post Conviction Remedies: A Self-Help Manual, and the Inmate Legal Handbook (published by Texas Department of Corrections). See Griffith v. Fontenot, 1994 WL 738984, *3-4 (E. D. Tex. 1994) (attached as Exhibit 6).

5. GROUNDS FOR DECLARATORY RELIEF.

   1. The Publication, Distribution and Sale of Nolo Press' Publications in Texas is Not the "Unauthorized Practice of Law."

      25. The publication, sale and distribution of Nolo Press' publications is not the "unauthorized practice of law" under Texas law. The publication, distribution and sale of Nolo Press' publications lacks the essential element of the practice of law: a client. Nolo Press (and the members of TLA and AALL who make Nolo Press' publications available to library users) do not engage in personal contact with the users of Nolo Press publications in the nature of personal consultation, recommendation or advice in advising a particular person in a particular situation. No attorney-client relationship forms between Nolo Press and the persons who buy, read, or use its publications, or between the members of TLA and AALL and library users who access Nolo Products in Texas libraries. No reasonable person buying or reading a Nolo Press publication would conclude that he or she had hired an attorney or formed an attorney-client relationship with a librarian, a bookseller or Nolo Press.

      26. Plaintiffs seek a declaration that under Texas law, properly construed in light of the restraints imposed by the Texas Constitution, the publication, distribution and sale of Nolo Press' publications in Texas does not constitute the "unauthorized practice of law," either under Tex. Gov't Code § 81.102 or as that term may be construed independently by the judiciary.

   2. The Texas Constitution Protects the Publication, Sale and Distribution of Nolo Press' Publications in Texas from any Prior Restraint, Prior Approval, or Injunction as the Alleged "Unauthorized Practice of Law."

      27. Defining the "unauthorized practice of law" to include the publication, sale or distribution of Nolo Press' publications in Texas and thereby imposing any scheme of prior restraint, prior approval or injunction limiting the sale or distribution of Nolo Press' publications would violate the Texas Constitution.

      28. Enjoining or attempting to enjoin the sale or distribution of Nolo Press' publications in Texas, or imposing or attempting to impose any scheme of prior restraint or prior approval upon the sale or distribution of Nolo Press' publications would violate the Plaintiffs' rights guaranteed under the Texas Constitution, including:

      (1) the rights of free speech and press guaranteed to all citizens by Article I, Section 8 of the Texas Constitution, including the right of the Individual Texans to receive information about the legal system;

      (2) the right guaranteed to all citizens to apply to those invested with the powers of government for redress of grievances or other purposes, by petition address or remonstrance, as guaranteed by Article I, Section 27 of the Texas Constitution;

      (3) the right of the Individual Texans and others similarly situated persons to represent themselves in court and in legal matters affecting their own interests, as guaranteed by the Texas Constitution;

      (4) the due course of law guaranteed to all citizens in Article I, Section 13 of the Texas Constitution;

      (5) the guarantee provided by Article I, Section 13 of the Texas Constitution that the courts in Texas will be open to all;

      (6) the right of all persons to pursue a lawful occupation guaranteed by the Texas Constitution; and

      (7) as applied to some of Nolo Press' publications, the right to privacy guaranteed to all persons by the Texas Constitution in the marriage relationship.

      29. Plaintiffs seek a declaration that the Texas Constitution prohibits enjoining, restraining, or otherwise limiting the publication, distribution or sale of Nolo Press' publication in the State of Texas.

   3. In the Alternative, Even if the Publication, Sale and Distribution of Legal Publications in Texas Could Be Deemed the "Unauthorized Practice of Law," and even if the Texas Constitution Permitted a Scheme of Prior Restraint, Prior Approval or Prohibitory Injunctions, None of Nolo Press' Individual Publications Constitute the "Unauthorized Practice of Law."

      30. As indicated above, the sale and distribution of books and software to the general public do not constitute the "unauthorized practice of law" in Texas, and the Texas Constitution prohibits the Legislature or the Courts from banning, enjoining, or restricting the sale and distribution of Nolo Press' publications by any scheme of injunction, prior restraint or requirement of pre-publication approval. However, if this Court were to rule otherwise, the Plaintiffs hereby seek a declaration in the alternative regarding each individual publication of Nolo Press as to whether it constitutes the unauthorized practice of law and can be banned consistent with the Texas Constitution.

      31. Attached as Exhibit 1 is Nolo Press' Spring 1999 printed catalogue listing its publications available for sale to persons in Texas, including the members of TLA and AALL and the Individual Texans. Attached as Exhibit 2 is Nolo Press' on-line product listing from its Web site, listing alphabetically its products that are available for sale to persons in Texas, including the members of TLA and AALL and the Individual Texans. Exhibit 3 is Nolo Press' on-line listing of its electronic books, guides and form kits from its Web site listing the products that persons, including all Texans, can download and purchase directly from Nolo Press' Web site.

      32. The Plaintiffs seek a declaration, for each of Nolo Press' individual publications, as to which ones, if any, constitute the "unauthorized practice of law" in Texas and may be banned from the State consistent with the Texas Constitution.

6. JURY DEMAND.

   33. As noted in Sections V.A and V.B above, the Plaintiffs are entitled to the declaratory judgment they seek as a matter of law upon the uncontested facts. However, in the event that the Court nonetheless rules that publishing and distributing books and software to the general public may constitute the "practice of law," and that the Texas Constitution may permit the banning of such books and software from the State of Texas, the Plaintiffs hereby request a trial by jury for the determination of all issues of fact, as is their right under Section 37.007, Tex. Civ. Prac. & Rem. Code and Rule 216, Tex. R. Civ. P. The appropriate jury fee is tendered with this Original Petition for Declaratory Judgment.

7. PRAYER FOR DECLARATORY RELIEF AND ATTORNEY'S FEES.

   34. Plaintiffs respectfully request that this Court take jurisdiction of this case, and that upon hearing this matter this Court enter a final judgment (1) decreeing that the publication, sale and distribution of Nolo Press' publications in Texas does not constitute the "unauthorized practice of law;" (2) decreeing that the publication, sale and distribution of Nolo Press' publications in Texas is protected by the Texas Constitution from any scheme of prior restraint, prior approval or injunctions; (3) awarding the Plaintiffs their reasonable attorney's fees and costs, as provided by Tex. Civ. Prac. & Rem. § 37.009; and (4) awarding Plaintiffs such further relief to which they may be entitled.