This barrister robot was a bust, but the next one may not be

The old adage goes that an attorney who represents himself or herself has a fool for a client. But what if a person hires a robot instead? And what if the robot commits malpractice?

Those are the interesting questions raised in a class action lawsuit filed earlier this month against DoNotPay, Inc., a San Francisco company that offers "the world's first robot lawyer." Faridian v. DoNotPay, Inc., Case No. CGC23604987, San Francisco Superior Court (Mar. 3, 2023). The lawsuit alleges that the "robot lawyer" isn't a lawyer at all, but actually a subscription service that draws from a database of legal documents and forms to prepare legal filings. DoNotPay has been used to handle fairly mundane legal issues such as challenging parking tickets, filing claims for lost or late packages, creating an advance health care directive. DoNotPay's website also offers assistance with much more colorful issues, such as learning how to make money selling one's human eggs.

The DoNotPay "robot" has come under fire, however, for its handling of more substantive legal matters such as annulling a marriage, drafting cease and desist letters, registering trademarks, and suing for unpaid services. Mr. Faridian falls into this camp. He used DoNoPay for demand letters, an independent contractor agreement, a small claims court filing, two LLC operating agreements, and an Equal Employment Opportunity Commission job discrimination complaint. He alleges that the documents were poorly done and had multiple mistakes.

For example, that one of the demand letters DoNotPay drafted for Mr. Faridian was a blank piece of paper with only his name printed on it. Turns out the lack of substance wasn't a problem because the letter was returned unopened by the opposing party, and due to the service delay, Mr. Faridian's claim was time-barred. Mr. Faridian also requested that DoNotPay draft an agency agreement for an online marketing business he wanted to start. He apparently reviewed this document before it was sent and noticed multiple problems, including a description that didn't apply to his business project and errors in the names of relevant parties.

Other legal errors recounted in the lawsuit include one customer who used DoNotPay's service to dispute two parking tickets. According to the account, the customer's fines actually increased because DoNotPay failed to respond to the ticket summons. The customer then canceled his account, but allegedly DoNotPay continued to charge a subscription fee. Another customer alleges that the DoNotPay "robot lawyer" erroneously admitted fault in a parking ticket dispute when the customer had intended to deny fault. The customer had to pay a resulting $114 fine. Such errors aren't unique to robot lawyers. An opposing counsel once misspelled my name three different ways in the same short pleading. I've received cookie-cutter letters or other pleadings from opposing counsel that had only vague claims and few facts mentioned. And real attorneys make mistakes and miss deadlines. So what sets a bumbling robot lawyer apart?

The problem, according to the complaint, wasn't so much that the robot lawyer was incompetent, but instead that Mr. Faridian was duped into believing he was getting services from an actual attorney. The complaint alleges that "Faridian would not have paid to use DoNotPay's services had he known that DoNotPay's robot was not actually a lawyer - or at least he says he "would have paid less" than the prices charged. DoNoPay reportedly costs $36 for an annual subscription. Frankly it's difficult to believe that a customer actually thought there was a human attorney controlling the output of a robot lawyer for only $36 a year.

The notion of suing a robot for malpractice opens a slew of intriguing questions about a new frontier in non-human legal malpractice. The Faridian lawsuit, however, relies on tried-and-true law - the sole cause of action is an alleged violation of the California Unfair Competition Law. Cal. Bus. & Prof. Code § 17200 et seq. The lawsuit alleges that DoNotPay (the corporation, not the "robot") committed unlawful, unfair, and/or fraudulent business practices by holding itself out to be an attorney when it wasn't and that its acts and omissions alleged were misleading or likely to deceive the public. It's curious that Mr. Faridian didn't sue directly for a violation of Cal. Bus. and Prof. Code §§ 6125, et seq., which prohibits persons from holding themselves out as lawyers or practicing law in California while not being admitted to the California bar. One problem may be the prohibition applies to a person, which seems to exclude robots. Even so, Joshua Browder, the founder of DoNotPay, certainly is a person, and his background as a software developer suggests that he is likely responsible for the programming used by DoNotPay to generate legal documents.

Practicing law includes legal advice and legal instrument and contract preparation, whether or not rendered in the course of litigation. Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119, 124 (1998). So why not sue Mr. Browder directly for what appears to be unauthorized practice of law through the DoNotPay service he founded?

Mr. Faridian's experience with DoNotPay appears to be largely a case of canned legal documents that turned out to be ill-suited, full of typos and improperly served. But what if Mr. Faridian had received good quality legal documents? Given the extraordinary capabilities of artificial intelligence and the much-touted ChatGPT, there will be much thornier problems to resolve. Could a machine ever be considered to be a "person" prohibited from practicing law? Could an app or computer program be vetted by a state bar and, in essence, given a license to "practice" by generating legal documents. While the Faridian lawsuit is grounded in very traditional concepts of law, it is a harbinger of much more drastic changes to come in the practice of law.