Nolo.com

By Tom McNichol. He is a San Francisco-based freelance writer.

In California as in many states, the modern era of attorney licensing did not begin until the 1920s when, after intensive lobbying by the bar, the Legislature made State Bar membership a prerequisite for practicing law. At the same time, the legal establishment tried very hard to discourage legal self-help, often with the pithy warning that anyone who would act as his own lawyer has a fool for a client.

That adage, however, was directly challenged in 1965 when a plucky estate planner in Connecticut named Norman Dacey published How to Avoid Probate!, a book of advice and do-it-yourself legal forms that quickly became a national best seller. It also prompted a lawsuit from the New York County Lawyers’ Association, which argued that by recommending what legal forms to use and how to fill them out, Dacey had run afoul of that state’s statute forbidding the unauthorized practice of law (UPL). The trial court agreed, and Dacey was briefly prohibited from selling any more copies in New York until an appellate court reversed the decision (New York County Lawyers’ Association v. Dacey, 21 N.Y. 2d 694 (1967)).

Four years later, the legal self-help phenomenon got an even bigger boost when two maverick attorneys from Northern California, Ralph “Jake” Warner and Charles “Ed” Sherman, teamed up to launch Nolo Press. Warner had graduated from UC Berkeley’s Boalt Hall law school in 1966, clerked for the chief judge of the Ninth Circuit, and then worked at the Contra Costa Legal Services Foundation, where he met Sherman, a fellow Boalt alum who had previously been an assistant DA in both Los Angeles and Contra Costa counties.

At Legal Services both men were frustrated by what they saw. Many of the would-be clients were too poor to afford a lawyer but not poor enough to qualify for free legal help. After quitting the organization, Sherman set up shop in the living room of an old brown-shingle farmhouse in Berkeley, where he mostly practiced family law. Warner says he did pretty much the same thing from the backyard of a “hippie house” to avoid getting a real job.

When Sherman decided to put together a set of detailed instructions on how Californians could handle their own divorces, Warner helped edit it. They hoped to get it published with Doubleday. But when Doubleday rejected it, Sherman decided to publish the book himself.

“We were angry when we started Nolo,” Warner admits. “We were mad at our own profession because we felt that attorneys were kind of hiding the law from people. Lawyers in the seventies felt that legal information belonged to them. You couldn’t even get a pamphlet on how to do a name change.”

Interestingly, when Sherman’s divorce book first came out in 1971, it sold poorly. But after the president of the Sacramento Bar Association called a press conference to urge people not to buy it – he called the book “dangerous” – sales promptly went through the roof. (How to Do Your Own Divorce in California is now in its thirty-third edition.) But Nolo’s success hardly silenced its critics.

In fact, Nolo faced what was perhaps its most serious challenge in the late nineties when the Texas Supreme Court’s Unauthorized Practice of Law Committee began investigating Nolo and other legal self-help publishers. Nolo sued, seeking a declaratory judgment that its publications were legal, and then it mounted a public relations campaign that portrayed its adversaries as self-interested protectionists.

Nolo’s campaign proved so effective that by 1999 the Texas legislature felt obliged to alter the state’s UPL law to exclude books, printed forms, and Internet sites “as long as the items clearly indicate that they are not prepared by a person licensed to practice law.” (Nolo’s materials already did.)

Since then, Nolo’s contentious posture toward the legal profession – for a time its unofficial mascot was a shark wearing a necktie and carrying a briefcase – has softened a bit. And its website now prominently displays an extensive directory of nearly 2,000 lawyers, including more than 700 from California, to take on legal matters that customers can’t handle themselves. Of course, the emergence of LegalZoom presented Nolo with a whole new set of challenges, since the two companies compete for some of the same customers. But they also behave like partners from time to time. In fact, LegalZoom includes Nolo’s self-help books in some of its packages. And they obviously share a common interest in defeating any UPL suits that come along. (In the Missouri class action, Nolo is considering filing an amicus brief for LegalZoom’s defense.) As Warner puts it, “Using UPL against legal forms and information on the Internet is nuts.”