A recent set of articles published in the February issue of Trusts & Estates discusses the pros and cons of using Document Assembly Systems (referred to in the articles as "DAS"). The articles are nicely presented as a Point/Counterpoint feature. In the first article (the "Point"), Jonathan G. Blattmachr and Martin M. Shenkman discuss the advantages of using DAS in an estate planning practice, ultimately reaching the conclusion that DAS are a must for estate planning attorneys, because they offer the consistency and efficiency needed to stay competitive in the market. In the “Counterpoint” article, Douglas J. Paul warns of the dangers of using DAS in an estate planning practice, primarily focusing on the concern that attorneys will become overly reliant on DAS, rather than applying their own expertise in planning and drafting documents for clients.
Certainly, it goes without saying that my colleagues and I appreciate and share the views expressed in the Blattmachr and Shenkman article. However, what may come as a surprise is the extent to which we respect and welcome the objections and concerns discussed in the Paul article. It may be tempting for those of us in the DAS business to sweep the counterpoint article under the rug, or argue that it reflects an outdated view that will be irrelevant in the near future. Yet, the truth is that Paul raises reasonable points that should be in the mind of any good attorney considering the use of DAS in practice. In fact, I venture to say that those of us in the industry are intimately familiar with the concerns raised in the Paul article, because we face them every day, in addressing the questions of prospective customers, and in the decisions we make regarding our systems and the documents within them. The Trusts & Estates articles shed light on these concerns, creating a welcome opportunity to address them in an open forum. In this post, I will discuss how the concerns raised by Paul, though valid, can be addressed by selecting the right system for your practice.
In their article, Blattmachr and Shenkman explain the ways in which DAS allow estate planning attorneys to better serve their clients by generating consistent documents with fewer errors in less time, enabling the attorney to provide the client with a better product for a lower fee. In addition, they address what they view as one of the main objections to DAS raised by estate planning attorneys: the preference for using the attorney’s own language, and reluctance to adopt forms that deviate from that language. They argue that clients do not care about the language used in their documents; rather, they only care that the documents are effective to achieve their goals. Further, Blattmachr and Shenkman point out that DAS allow attorneys to offer a more extensive range of documents and provisions to their clients, and allow for more precise and careful drafting through “crowdsourcing” of language by the attorneys using the system.
In the counterpoint article, Paul focuses on three primary objections, stating that “the combination of DAS with other factors, such as fixed fee billing, impact the practice of estate-planning law by: 1) recasting the attorney’s role in estate planning; 2) outsourcing attorneys’ responsibility for their own documents; and 3) substituting technology for the attorney’s expertise.” I will address each of these three objections in turn.
Paul first argues that DAS pose a risk of recasting the attorney’s role, by changing the focus from the guidance and advice offered by the attorney in the estate planning process, to the estate planning documents themselves, causing the client to see the documents as the end-result of the engagement, rather than the thought that went into them and the results they are intended to produce. He expresses concern that this focus on producing tangible goods (i.e., the documents) for the client at the lowest cost is causing more attorneys to adopt a flat-fee model of billing, which, combined with the results-oriented focus, may lead to the commoditization of estate planning, inviting the comparison of the attorney’s services to the direct-to-consumer services offered by online platforms such as Legalzoom. All of us in the estate planning field (if not the practice of law, in general) should be concerned about this commoditization of the practice. I agree with Paul that the value of an estate planning attorney’s services is not in the documents produced, but in the counseling, planning, and advice given by the attorney, based on a depth of knowledge and experience.
Don’t get me wrong; the quality of the documents produced by the estate planner is absolutely critical in ensuring that the thought and advice that went into the planning process is properly and accurately carried out. However, those documents should not be the primary focus of the attorney or the client. That, in fact, is one of the reasons we do what we do at InterActive Legal. We give the estate planning attorney the tools to create quality documents consistently and efficiently, so that the attorney is able to spend more time with the client, advising the client, listening to the client’s goals, and devising a plan to meet those goals. An attorney who values the attorney’s role as counselor and advisor can ultimately charge the client less, providing greater value, by introducing DAS into the practice; a greater portion of the total time spent on the engagement is spent in that advisory role, and a lesser portion is spent on drafting documents.
The second point raised in Paul’s article is that the attorney who uses DAS may be lulled into a false confidence in the system's documents without thoroughly understanding them. Paul’s argument seems to stem from a concern that the documents may be inadequate to address certain issues, and the attorney will not have the finely-honed skill to recognize this inadequacy, having relied on DAS rather than the attorney’s own experience, or the experience of others in the legal community. In particular, Paul focuses on a lack of state-specificity, stating that many DAS promote their effectiveness in all States, but achieve this through generalizations that are not adequate to deal with specific issues that arise in a particular jurisdiction. To an extent, Paul’s assessment bears some truth. The language in DAS can, in some instances, be more general than that which is specifically drafted by an attorney to be effective in one particular State. For example, DAS may use general language such as “in accordance with the law of the applicable jurisdiction” where an attorney in that jurisdiction may reference the State by name, or may even include a specific statutory reference.
One example of this in the InterActive Legal documents is in reference to fiduciary powers. In general, the InterActive Legal documents reference the law relating to fiduciary powers in the applicable jurisdiction, without referencing the jurisdiction by name or by statutory reference. However, in some instances, the system is programmed to bring in a particular statutory reference, where one of our advisors or other attorneys who use the system have informed us that the statutory reference is necessary. This highlights an advantage of DAS, which is the “crowdsourcing” function mentioned by Blattmachr and Shenkman. An attorney who creates and maintains a set of forms may draw upon the experience of colleagues in the attorney’s firm or local community, but an attorney who uses DAS is essentially drawing upon the experience of hundreds of attorneys, some of whom are in the same jurisdiction as the attorney. If the system developer is responsive to its subscribers, and maintains a staff with legal knowledge who can make the necessary adjustments when recommended, DAS can provide an efficient and effective way for an attorney to stay up-to-date and continuously incorporate best practices into the attorney’s documents.
Paul’s third point is that DAS allow attorneys to create and draft plans that the attorney may not have sufficient expertise to understand and implement. This can have detrimental consequences for the client, if the plan does not actually achieve the client’s intended goals, or does so with unnecessary (and expensive) complexity. This point focuses on a particular aspect of Paul’s overall argument: that DAS can be dangerous in the hands of “complacent attorneys.” My response to that third point, and Paul's main argument? I could not agree more. I cannot speak for everyone involved in the DAS industry, but I know I speak for myself and my colleagues in saying that we do not want to replace, and know that we cannot replace, the knowledge, experience, and expertise of the drafting attorney. Our goal is to be a powerful tool in that attorney’s toolbox, allowing the attorney to practice more effectively and efficiently. Our ideal subscriber (and we are fortunate to have many who fit the bill) is one who recognizes that the attorney is ultimately responsible for representing the client’s interests to the best of the attorney’s abilities, and no technology tool can replace or remove that responsibility. One of the benefits of DAS, if the right system is selected, is the education and background information provided to the attorney who uses the system. However, regardless of whether the drafting attorney uses DAS, the attorney must have a threshold level of competence and experience to practice in a particular area of law, or must partner with an attorney who is competent and experienced in that area.
Many of us in the DAS industry are attorneys, and we respect and appreciate the duty of the attorney in representing the client. That duty extends to selecting the best and most finely-tuned technology for use in the attorney’s practice. We cannot aim to replace the attorney; however, we strive to be the best Document Assembly System available, and to consistently improve, to give our subscribers an advantage in serving their clients. For that reason, we at InterActive Legal do not shy away from this debate; we invite it, as a chance to highlight what we do, the reasons we do it, and the ways in which we do it better.
 Titled DAS Are A Must: Are there reasons not to use them?
 Co-founder and Editor-in-Chief of InterActive Legal, former Partner of Milbank LLP, Principal of Pioneer Wealth Partners, and Director of Estate Planning for Peak Trust Company.
 Attorney in private practice at Shenkman Law in Fort Lee, New Jersey, and InterActive Legal Advisor.
 Titled The Slippery Slope of DAS: Overlooked risks and dangers.
 Partner in the Austin, Texas office of The Blum Firm P.C.
 This post is intended to summarize and paraphrase the articles discussed herein, based on the author’s reading and interpretation. The reader is encouraged to read the original articles for the full argument and analysis presented by their authors.
Meet Vanessa L. Kanaga, Esq.
President and Director of Content Development
Vanessa received her J.D. from Cornell Law School, Magna Cum Laude, in 2006, and holds a B.A. in Philosophy from Wichita State University, with a minor in Music, as well as an Advanced Professional Certificate from New York University School of Law. Following law school, Vanessa practiced in New York for several years, at Milbank, Tweed, Hadley & McCloy, LLP, and then Moses & Singer, LLP. In 2012, she returned to her home town of Wichita, Kansas, where she was an associate attorney in the estate planning and probate practice group at Hinkle Law Firm, LLC, before joining InterActive Legal.