DoubleHearsay recently got wind of a(nother) seemingly altruistic movement afoot aimed at making legal information freely available to the public. LexPublica is a website community that develops free contract templates and supporting information to serve individuals and small businesses who can’t afford high-priced lawyers to draft these up for them.
Contract “precedents” (the word lawyers use to describe “templates”, for no other reason I can discern than to make them sound less pedestrian) are worth their weight in gold to a lawyer. Thanks to precedents, lawyers can re-use some or all of a previously drafted agreement — usually at another client’s expense — and churn out an appropriate document fit for use by another client. Law firms allocate significant resources to build up fancy precedent databases to allow their lawyers to search for and easily find useful precedents ready to be adapted for the task at hand. Smaller firms and solo lawyers typically lend precedents to colleagues, extending a sort of tit-for-tat exchange of information. For clients paying for legal services using the billable hour method, contract precedents make it possible for legal transactions to occur for relatively low cost.
But until now, the legal profession has largely served as the gatekeeper to this fount of valued information. Even as do-it-yourself will and divorce kits abound, it has generally been understood that “you get what you pay for” when it comes to cobbling together legal documents using resources that cost $20 or less. A common refrain in response to these DIY guides is that legal documents require precision in drafting in order to give effect to the actual intentions of the parties involved. Using a “one size fits all” approach to legal transactions is a recipe for disaster, as blind allegiance to boilerplate can lead to a document that doesn’t reflect at all what its users thought it did. And who wants to leave a will that inadvertently results in one’s estate being escheated to the Crown?!
LexPublica confronts some of these challenges by collaborating with lawyers, law students, “legal experts”, and others to create the contract templates. And, they say, the templates include “supporting information” to explain how to properly use the agreement. LexPublica makes very clear that it is not providing, and is no substitute for, legal advice. If in the course of preparing an agreement using a LexPublica template a user realizes that the matter is more complicated than expected, LexPublica recommends checking in with a lawyer.
But it’s the “supporting information” that really makes this service worthwhile. At the time of writing, most of the agreements noted above include “Guidelines for Use” documents that explain to users some of the ins and outs of the particular contract. The Employment Agreement, for example, does a remarkable job of explaining why certain terms default to statutory requirements under provincial employment standards legislation and should only be modified upward, if at all. The “General Considerations” document accompanying the Consulting Agreement includes a useful summary of the law for determining whether an individual is an “employee” or “independent contractor”. Without these tools, lay users could easily fall into traps by changing contract terms without realizing the consequences of doing so.
Will LexPublica and services like it replace the need for lawyers? Surely not. The service is intended for individuals and small businesses that can’t afford hiring a lawyer to draft The Perfect Agreement. For these users, the status quo is either muddling through an entirely self-drafted document (and hoping it never needs to be enforced) or skipping a written agreement altogether. Even larger companies routinely need to decide whether to retain counsel to draft a Cadillac-style contract that takes into account all the “what-if’s” and comes with a correspondingly high cost to prepare, or to settle for a relatively “quick and dirty” version that gets the job done quickly and cheaply. With services like LexPublica, we hope individuals and small businesses will be closer to having a similar choice.