I saw that coming: text generating robots are taking over large parts of the drafting of legal agreements.
And it so happened that a publicly listed publishing company started to offer a text generating robot that provides more than 190 legal documents and contracts in many areas of law: SmartLaw (click here). Use Google Translate for reading this website if you cannot read German language (click here in order to find out how that works).
There are already books out there that provide the same results, but different from a text generating robot, these books are only practical for people who have a legal background. These books – such as the Butterworth Law Books series – come with a prohibitive price tag of EUR 200.00 and more. This is not what a layman would invest into when they need a simple contract.
We lawyers are a red-tape profession who – in large parts – live from dwelling on difficulty or troubles. And this is what my peers told me since ever: offering such legal agreement drafting robot services is illegal in Germany because this infringes the Legal Professions Act (Rechtsdienstleistungsgesetz).
The Cologne Bar Association vs. Wolters-Kluwer Case
It took a few years after launching the SmartLaw website until one of the many German Bar Associations (Rechtsanwaltskammer) sued the Wolters-Kluwer that is hosting that text generating robot. Not only because of Wolters-Kluwer allegedly offering unlicensed legal services, but also because of Wolters-Kluwer using unfair business practises to promote their website.
And indeed, some strong language has been used for promoting that website:
“Cheaper and faster than a lawyer”
“Legal documents in lawyer quality”
“More individual and more secure than any submission and cheaper than a lawyer”
How the SmartLaw Robot Works
And this is how Wolters-Kluwer explains how their contract drafting robot works:
“Legal documents in lawyer’s quality – our portfolio includes more than 190 legal documents and contracts. You can create each and every one of our documents yourself with our individual question-answer dialog in a few minutes. All of this without any legal know-how – because we have that: In Cooperation with our legal experts – all of them professionals in their fields – we have designed the creation process in such a way that it is modeled on the conversation with the lawyer “,
And this is the corresponding SmartLaw Youtube movie: https://youtu.be/PGgBHvTm3Lg
I tried out how the contract drafting robot works, and it is not bad. The contract that I have tested costs EUR 9.00. That is cheap.
I find this offer intriguing. And I will recommend it to the cost-conscious ones of our clients.
These are the Defenses
The defendant has said that
- her services are the equivalent of the tax return programs that are available on the market for over 20 years, which currently show a higher degree of complexity than their contract drafting robot,
- the product range of their contract drafting robot is aimed at a target group who, for reasons of cost or time, would not expect or ask for individual advice from a lawyer or service provider, but would rather draw up their own contracts and would have traditionally used traditional forms or samples for this,
- at the time of conception and programming of the relevant software, there was still no “specific” legal matter of a third party. Only at the time that the software is being used is there a legal matter of a third party, but then the user of the robot is acting in his own affairs, and not the provider of the robot. When doing so, the user is only supported by general abstract information from the program, but there is no legal advice given,
- constitutional requirements when applied to software-supported offers of the so-called legal tech industry allow new professions in the field of computerized systems, at least as an ancillary service.
Decision: the SmartLaw Robot is Legal. The Strong Marketing Language is Not
The lower instance, the Cologne regional court (Landgericht) has decided in favor of the Cologne bar association who had brought the lawsuit against Wolters-Kluwer. But not so the second instance, the Cologne Regional Appeal Court (Oberlandesgericht).
The Cologne Regional Appeal Court essentially confirmed Wolters-Kluwer´s defenses. This is what is said in their written decision:
“… there is no violation of §§ 3 , 2 RDG (Legal Services Act). With the offer of the document generator, the defendant does not provide any service according to § 3 RDG ….
Legal service is any activity in specific third-party matters as soon as it requires a legal examination of the individual case … For the interpretation of this standard, its wording, meaning and purpose, its systematic classification, and its legislative history are decisive. These design criteria are not mutually exclusive, but complement each other. None of them has unconditional priority over another, whereby the starting point for the interpretation is the wording of the provision …
1. The wording of Section 2 (1) of the RDG speaks against the plaintiff’s view that the document generator at issue represents a legal service provided by the defendant.
The digital legal document generator offered by the defendant under the designation “A” creates individual legal documents on the basis of a question-and-answer system from a collection of text modules. This process can only be done with a – according to the case law of the BGH … not required – wide interpretation of the elements “activity in a specific foreign matter as soon as it requires a legal examination of the individual case” should be viewed as a legal service. The software as such is not an “activity” of a service provider. The activity of the defendant as the addressee of the RDG is the development and provision of the software. However, this activity does not take place in a “specific” legal matter, nor does it require a “legal examination of the individual case”; Rather, the legal assessment included in the program concerns a large number of conceivable cases. (Only) the subsequent use of the offer by the users – consumers and companies – is an activity in a specific individual case, but this happens not in a “third-party” matter. In order to be able to evaluate the activity of the users in their own cause as an activity of the defendant in a specific foreign matter, an attribution construction is required, which would only be considered if – as not – the sense and purpose of the RDG required such an attribution. And even if the defendant’s own use of the program could be attributed to the defendant’s activity in a specific legal matter, that activity in any case does not require a “legal examination of the individual case”. The program runs – recognizable for the user – according to a fixed routine in a question/answer scheme, with which a situation is inserted into a given grid. Regardless of the number of questions,
2. The intention of that legislature, which can be found in the legal materials, speaks against a broad interpretation of the term “legal service”.
a) In its “Internet Address 2” decision …, the Federal Court of Justice (Bundesgerichtshof) stated that the term “legal service” in the form of collection service according to Section 2 (2) sentence 1 RDG that a registered debt collection service provider according to § 10RDG, taking into account the history of the development of the RDG and above all with regard to the objective pursued by the law in connection with the case-law of the Federal Constitutional Court of a fundamental redesign of the law based on the aspects of deregulation and liberalization, allowing the development of new job profiles, extrajudicial legal services should not be understood in a narrow sense. Rather – within the protective purpose pursued by the RDG, to protect the law seekers, legal transactions, and the legal system from unqualified legal services – a rather generous consideration being required…
The objective of the RDG, emphasized and documented in detail by the BGH … – a fundamental redesign of the law of extrajudicial legal services, which is geared towards the aspects of deregulation and liberalization, and which allows the development of new job profiles. In the present case, an interpretation of the concept of “legal service” within the meaning of Section 2 (1) RDG, which is just as closely aligned with the protective purpose, is required…
6. Realignment of the concept of legal services
In view of the ever-increasing legalization of everyday life and the constant development of new service professions, the area of prohibition of the law must be limited to cases of real legal application.
a) Legal definition of legal services as a special legal review
The stated constitutional and European legal requirements require that restrictions on the freedom of occupation are only imposed where the core area of law is affected. The draft law complies with this requirement by first redefining the term “legal services” in Section 2 (1) RDG based on the restrictive interpretation of Article 1 (1) (1) sentence 1 RBerG developed by the Federal Constitutional Court and which has since been made in consistent case law : According to this, legal services are only activities in specific foreign matters that require a special examination of the legal situation.
The legal definition of the term “legal service” in Section 2 (1) RDG contains the term “legal services” developed by the Federal Court of Justice in constant case law … an essential restriction: Not every “activity that is directed and suitable to realize specific foreign legal matters or to shape foreign legal relationships” is therefore already a legal service. Rather, what is required is that legal advice or legal procurement requires a special examination of the legal situation in the sense of a legal subsumption process. If legal processes are carried out according to the relevant public opinion without an individual legal examination – for example in all cases of simple acting as a representative – or if the legal assessment of a question is so easy and clear even for legal laypersons that a special legal examination is not necessary, then there is no legal service.
On the basis of this definition, general legal advice or petty legal activities, as well as any business agency that does not require a special legal examination, do not fall within the scope of the Prohibition Act from the outset … These activities are not “legal advice in the legal technical sense” … and are therefore always permissible without permission.
b) In the above-mentioned “Internet address 2” decision, the BGH did not deal with the question at hand – software-based document generator as a legal service – but dealt with the special case of debt collection services. The Federal Court of Justice has expressly left the question of whether the software-based rental price calculator is a legal service within the meaning of Section 2 (1) RDG, because the existence of a legal service can already be assumed under Section 2 (2) RDG. However, he has additionally noted …:
“In any case, the appellate court’s assumption is that the plaintiff’s rent calculator is a legal service according to Section 2 (1) RDG, because it is not just a” set of calculations “, but rather a” subsumption “of the respective apartment under the grid fields of the rent index and the orientation aid and thus an application of the law require, rather remote. ”
The appellate court had stated that the determination of the local comparative rent offered by the plaintiff on the basis of her “rental price calculator” was an illegal legal service not included in her registration as a debt collection service provider. The determination of the comparative rent is to be qualified as a legal service, because the inclusion in the Berlin rent index to determine the local comparative rent also requires a subsumption of the peculiarities of the apartment in dispute and its characteristics under the respective grid fields of the rent index and the orientation aid. In this respect, it is not just a matter of a simple data comparison or a mere set of calculations, but rather legal advice …
The obiter dictum of the BGH outlines the solution of the present case to some extent, even if the rent calculator may not be comparable to the present document generator in terms of the scope of the data input, the assistance provided and the individuality of the result. The fact that the rental price calculator produces a non-binding result is not a decisive difference to the legal document generator. This also does not create any legally binding documents.
c) The individual justification for Section 2 (1) RDG also speaks against the regional court’s broad interpretation of the term legal service:
BT print. 16/3655 , draft law, page 46 ff. (Emphasis only here):
On § 2 (concept of legal service)
To paragraph 1
A problem of the RBerG that repeatedly leads to problems of interpretation is its variety of terms (legal advice, legal assistance, legal support, advice and help in legal matters, etc.). The RDG now only uses the uniform term of legal service, which includes both the pure giving of advice internally and the representation of the legal seeker externally, be it by negotiating with the opponent of the legal seeker or by acting as a representative from contracts or through negotiations with authorities.
Based on the new terminology in the case law of the Federal Constitutional Court and the Federal Court of Justice, the material scope of the law is traced back to cases of “substantial application of the law” (see general reasoning, II.6.a). The individual elements of the term definition serve this purpose.
On the requirement of the “special legal examination”
The focus of the definition of the term is the requirement of a special legal examination. Such a legal examination, which goes beyond the mere application of legal norms to a situation, must either be an objective part of the service, namely according to the relevant public opinion, or subjectively, i.e. based on a wish expressed by the person seeking the law.
This means that all life processes are excluded from the scope of the law that do not require any legal examination because everyone is so familiar with their content, form, and legal consequences that they are not perceived as “legal” life processes. These transactions do not become a legal service simply because a third party is commissioned to carry them out.
Activities that objectively do not go beyond the mere schematic application of the law, i.e. in particular all cases of mere representation in legal dealings, will in future only fall within the area of prohibition of the law if the person seeking legal advice clearly expects special legal support or clarification. However, the potentially far-reaching legal consequences inevitably associated with such a representative’s action do not make the activity legal advice requiring authorization …
This also applies in the “trustee cases” for property developers or other investment models, in which the Federal Court of Justice considers the acquisition of investment properties via the granting of comprehensive powers of attorney to a trustee to be void due to a violation of the Legal Advice Act … Here, too, the RDG is only to be applied in the future if the investor clearly expresses when concluding the agency agreement that he not only wants the trustee to carry out the contract, but rather a special legal review, advice and support. This is not the case with participation and investment models, in which, in view of the declarations and contractual clauses specified by model contracts, individual handling of legal matters for the investor is not at all in question. The case law of the Federal Court of Justice – which in these cases developed its own restrictive interpretation of the RBerG … does not apply – therefore does not stand in the way of the application of the law required according to § 2 and can certainly not be transferred to the RDG …
In addition, there is no legal service in the sense of the RDG draft if an act – like ultimately any economic process – requires knowledge and application of legal norms, but subsumption under legal terms and facts is also so natural for legal laypersons, that the application of the law does not require any special legal knowledge. For the application of the law, therefore, the necessity of a specific legal subsumption process on the part of the service provider is always necessary. The term “special” examination used in the draft serves to distinguish between the simple application of the law that is not subject to the restrictions of the law and substantive legal examination. It is intended to prevent any activity from
A legal service according to Section 2 (1) is therefore not, for example, the mere participation in the termination of a contract by means of declarations in the form of declarations which, under applicable law, were in some cases considered to be subject to authorization. For example, the mere termination of an energy supply contract and representation when a new standard contract is concluded by an energy consultant … will not be considered a legal service in the future The sense of the RDG should be seen, so that it does not matter to what extent activities by energy consultants according to § 5 are permitted.
The line between general services and legal services must also be drawn in the area of so-called claims management, i.e. the settlement of traffic accident claims for the accident victim, where a special legal examination is required. This is always the case if the accident claims settlement can depend on the determination of liability or contributory negligence ratios. Therefore, only general information is permissible to this extent that the reimbursement of the damage depends on the liability situation and may be limited due to contributory negligence or the operational risk posed by the vehicle of the customer involved in the accident.
On the other hand, the victim of the accident will not expect a legal assessment of the question of guilt, a weighing of the causal proportions or even the application of the principles of prima facie evidence to his accident facts from the master mechanic, expert or rental car company; even more so, the latter will not make any binding statements on such questions or even argue with the opposing party about the question of fault. The examination of the liability shares in the event of a traffic accident is legally complex and therefore clearly belongs to the legal services that are and remain reserved for members of the legal advisory professions.
The settlement of disputed damage cases is therefore never a permissible ancillary service under Section 5 (1) of a vehicle repair, the rental of a replacement vehicle or the preparation of a damage report, if only because the clarification of the question of fault for the accident victims of It is so essential that it is always in the foreground and is never just an ancillary service. In addition, the legal assessment of traffic accidents is not part of the job description of the master mechanic or rental company, and the technical expert is not called to answer legal questions of liability so that there is also a lack of the necessary connection with the actual main service.
Even in cases in which the reason for liability is undisputed, for example, because the sole liability of the other party involved in the accident has been established and has already been recognized by the opposing insurance company, a special legal review may be required in the course of claims settlement, for example when it comes to determining and quantifying a specific one Compensation for pain and suffering, an acquisition or housekeeping damage goes, or if in the area of property damage the amount of the reimbursable rental car costs, the compensation for loss of use or the replacement of a repair measure carried out is in dispute.
A distinction must be made in this area:
Insofar as car workshops, rental car companies or experts provide information on the reimbursement of other damage not related to their actual service, in particular personal injury and claims for pain and suffering, this is either general advice that – such as the reference to the general flat-rate damage – are not to be regarded as legal services, or – insofar as claims for pain and suffering are specifically quantified or asserted – clear legal services that are generally not permissible as ancillary services due to their lack of connection with the actual activity of those named, but also due to the special importance for the injured party.
If, on the other hand, a vehicle repair company, a rental car company or a motor vehicle expert give the accident victim information on the reimbursement of the costs incurred through his commissioning, this is a legal question to be assessed according to § 249 BGB, the answer to which – at least in the cases in which this is the case A dispute can arise – regularly requires a special legal examination in the sense of § 2 Paragraph 1 In these cases, however, legal advice to the victim of the accident will be part of the full fulfillment of the contractual information and clarification obligations of the entrepreneur and will therefore be permissible under current law and also in the future under Section 5 (1) (see – also on the admissibility of debt collection in these cases – Justification for Section 5 (1)).
As a result, a special legal check according to the RDG system is not only available if an activity requires the entire range of knowledge of the lawyer. Every specific individual question, the answer of which requires legal subsumption and special legal knowledge – even if only in a small sub-area – contains such a legal examination, which opens up the scope of the RDG. In contrast to the applicable law, the test standard does not refer to a professional activity in its entirety, but to the individual service that is to be provided in the context of a professional activity. Whether this activity is permissible, provided it is a legal service, is then decided during the examination of the permit conditions, especially in accordance with Section 5, the central permit standard for legal services in connection with another activity. Only here should it be checked in future whether the legal activity as a whole is subordinate and permissible as an ancillary service, or whether it characterizes the activity as a whole, with the result that it is generally reserved for lawyers.
To the requirement of the individual examination
The factual feature derived from the case law of the Federal Constitutional Court and the Federal Court of Justice, the consideration of the specific circumstances of the individual case, serves the constitutionally required narrowing of the concept of legal service (see General Explanation, I.1). There is no legal service if there is an in-depth discussion of legal issues, but this does not relate to a specific individual case. General legal information directed at the public or an interested group does not constitute a legal service, even if you use a specific case as an example. Also a general, Legal advice to an interested individual based on the unverified information provided by the inquirer is not a legal service. This can be the information provided by a tenants’ association to a non-member … or answering legal questions in the context of an advisory broadcast on television, for which Section 2 (3) no.
On the other hand, it is irrelevant for the question of whether legal services are provided by which technical means this is done. The existence of a legal service is not excluded because the legal seeker does not make personal contact with the service provider, but wants to have his specific legal questions checked via a telephone hotline or an internet forum. Here it always depends on the content of the advice offered and the expectation of the legal seeker whether the advice is to be classified as a legal service.
On the meaning of the “recognizable expectation” of the legal seeker
In those cases in which the provision of advice or the handling of a business objectively, i.e. according to the general view of the world, does not require a special legal examination, according to the definition of the term in § 2 Paragraph 1 a legal service can be provided if the client indicates that he does not have an overview of the legal effects of a transaction and that he engages the third party with the aim of examining the process by him using the relevant legal provisions or to be clarified about the legal consequences of the legal transaction.
The factual feature, therefore, extends the scope of the RDG in the interest and for the benefit of those seeking legal advice in cases in which a special legal examination would not be necessary and customary in the case of a typical, objective examination.
To the requirement of the “specific foreign matter”
The element of activity in specific third-party matters is taken from the highest court case law on the scope of the RBerG … Activities that are not carried out in third-party affairs but in one’s own business do not constitute legal services. As in current law, this is understood to be an economically external matter. Own affairs and legal advice from legal representatives, organs or employees of a company are not covered by the scope of the law. Paragraph 3 No. 6 provides for a clarifying special regulation for legal advice in corporate groups (see justification for Paragraph 3 No. 6).
The activity must also focus on a specific issue. Activities that are aimed at the general public or an indefinite group of people are therefore not recorded even if the other conditions of the offense of Section 2 are met, i.e. if the legal situation is checked and explained using an individual case example. It is always decisive whether it is a not fictitious, but real, factual legal question of a certain person seeking advice.
BT Drucksache 16/6634, the recommendation for a resolution and report, page 50 f. (Emphasis only here):
On § 2 (concept of legal service)
To paragraph 1
The proposed changes in paragraph 1 first of all result in a linguistic tightening of the legal definition of the term “legal service” and avoid the use of the general clauses “view of the people” or “expectation of those looking for law” previously in the legal text.
The Legal Affairs Committee considers this tightening of the norm to be appropriate, especially since the expert hearing has shown that the courts will continue to base their interpretation of the norm on the public opinion and – in addition – on the expectations of the person seeking the law, even without an express codification of these elements of the offense, since this is the established one Case law of the Federal Court of Justice. An extension of the scope of the RDG does not go hand in hand with the deletion of these hitherto generally recognized design criteria, especially in the case of an extensive interpretation of the scope of § 5Para. 1 RDG would necessarily have to be expanded in order to comply with the constitutional requirements. The Legal Affairs Committee expressly does not intend this. The deletion of the word “special” is intended to avoid applying excessive standards to the requirement of legal examination. In the discussion about this element, the fear was expressed that the word “special” would allow – contrary to the reasoning of the government draft – an interpretation of the provision that only covers particularly difficult or comprehensive legal checks. In contrast, it was already stated in the justification for the draft that § 2Paragraph 1 of the RDG is intended to cover every legal activity that goes beyond the mere application of legal norms to a situation without the need for a special depth of examination. In order to clearly emphasize that in the context of § 2 Para. 1 RDG it is only a matter of delimiting the mere application of law to legal review and not of distinguishing between “simple” and “difficult” legal advice, the Legal Committee considers the deletion of the word “special” “forbid.
d) Insofar as the BGH stated in its decision “Claims settlement by insurance brokers” that the control purpose pursued with the RDG could not be achieved through a restrictive interpretation of the term legal service …, this does not speak in favor of a broader interpretation in the present case. The BGH had dealt with the question of whether a legal service could only be accepted in the event of a particularly intensive and substantial examination of the legal situation, and this question based on the wording of the standard, which does not provide for such a restriction, as well as the legislative history (according to BT-Drucks. 16/6634) and the ratio of the RDG is negative. According to the formulation of the BGH (op further legal examination, regardless of whether it is a simple or difficult legal question. The legal examination of the individual case is also not superfluous because a sample letter composed of standardized and mostly used text modules is adapted for a specific case ….
The fact that a legal service does not require a special depth of examination does not mean that the complexity of a schematic application alone fulfills the criteria of a “legal examination”.
3. Based on the wording of Section 2, Paragraph 1 of the RDG, taking into account the above-mentioned ideas of the legislature as well as the meaning and purpose of the standard, the defendant did not provide any illegal legal service.
a) “Activity” means a human or at least thinking activity. This follows from the explanations in the explanatory memorandum … on the legal examination, namely that a legal subsumption process is always necessary on the part of the service provider, which also after the recommendation for a resolution … on the the mere application of legal norms to a situation must go. Such a subsumption process, which runs more than purely schematically, does not exist in a simple IT program of the present type that processes schematically prescribed yes / no decision structures. It remains to be seen whether an activity within the meaning of Section 2 (1) RDG is considered when using so-called artificial intelligence.
From the fact that the activity can take place by means of modern communication technology ( see BT-Drucks. 16/3655 , on the requirement of the individual examination, not on the element “activity”; cf. also Kleine-Cosack, RDG, 3rd edition, § 2 marginal no. 5), i.e. the person seeking legal advice does not have to make personal contact with the legal service provider, it cannot be concluded that a computer program as such can perform an activity within the meaning of Section 2 (1) RDG.
As far as the draft of a law for the modernization of the RDG (see Bl. 137 ff. GA) in § 2 Abs. 1 the addition “An activity within the meaning of sentence 1 can be performed fully or partially automatically” provides for the offering of automated legal services would like to enable due to special expertise and thinks that the change, that processes of information technology systems can also represent a legal service, has a purely clarifying function, the plaintiff’s board of directors said in a statement dated July 3, 2019 (see page 145 ff. GA) rightly and with convincing justification countered:
“A vending machine can be helpful for legal checks in individual cases, but it cannot carry out this itself … The idea that legal services can be provided automatically is therefore not a supplement but a fiction.”
In addition, the ideas of the legislature on the modernization draft are neither binding nor decisive for the interpretation of the applicable law, not even the resolution of the 90th Conference of Justice Ministers (see p. 107 f. GA) or the final report of the state working group (see p. 109 ff. GA) on Legal Tech: Challenges for the judiciary.
The only remaining action in the present case is therefore the programming and provision of the program by the defendant, on the one hand, and the use of the program by the user on the other.
b) The programming of the abstract legal decision trees and the provision of the disputed program does not yet lead into the scope of the RDG … due to the lack of activity in a specific foreign matter. The test must relate to an actual, not just fictitious, case, so that the intention to include all conceivable cases in the construction is not sufficient …
The view that speaks in favor of the acceptance of a “specific” matter that the catalog of questions goes beyond the format of a standard form manual, both because of the number of questions and because of their specificity, that comparable alternative suggestions are made with human advice and that a legal review is carried out …, cannot be joined.
c) The wording in § 2 para. 1 RDG that an activity in specific third-party matters is a legal service “as soon as” it requires a legal individual examination, allows an interpretation to the effect that the application of the program by the user (specifically and from the point of view The defendant then also transferred the (initially abstract) service offer into a legal service, because the defendant intended to use the program and in this respect is also attributable. The opening of a source of danger in the protection area of the RDG can be considered as an attributable event …
The purpose of the RDG is to protect those seeking legal advice – whether they are consumers or entrepreneurs -, legal transactions and the legal system from the often far-reaching consequences of unqualified legal advice, Section 1 (1) RDG (see also BT-Drucks. 16 / 3655 page 30 ).
The legal document generator offered by the defendant does not constitute a risk that the RDG wants to protect against.
The view that comprehensive protection against unqualified legal services is only possible if automated procedures as well as classic consulting services are subject to precise monitoring by sufficiently qualified persons … is not convincing. A threat to legal relations and/or the legal system as such is neither presented nor otherwise evident. It remains unclear why the ban on document generators should lead to improved protection for those seeking justice. The user can use the program to create IT-supported contracts etc. himself. Contract drafting pp. may be a supreme discipline of legal advice in individual cases, nevertheless all legal documents that can be generated via A may be, can be freely created without the involvement of a lawyer, even using aids such as templates or form manuals For consumers and entrepreneurs, for whom the use of legal advice for the formulation of legal documents is too expensive and / or time-consuming, the document generator expands the range of assistance with an obvious digital and therefore particularly user-friendly option. A concrete justification is required to forbid the consumer from such attractive assistance in handling his own legal affairs on his own responsibility. The use of a logically mandatory decision-making process, which can typically run particularly well with IT support, is reserved for lawyers, just because the program depicting such a decision-making process is based on legal evaluations contradicts the history and objectives of the RDG with regard to the development of new occupational profiles (see above) and with regard to the fact that the law should be “limited to cases of real legal application”. The RDG does not serve to protect the legal profession from competition … Protection against unqualified legal advice must only be guaranteed where legal advice actually or allegedly takes place. The fact that the contested document generator merely combines given word modules according to a relatively simple question-and-answer scheme and the result depends on the quality of the modules and the logical connections given in the program on the one hand and on the correctness, meaningfulness and coherence of one’s own selection decisions on the other the application of the program – as it is exemplarily presented in Annexes K5 and K7 (part of Annex 1 attached to the contested judgment of the regional court) – easily recognizable for the user. The general filling out aids provided by the program meet the requirements for a legal examination as defined in § When using the program – as shown in Annexes K5 and K7 (part of Annex 1 attached to the contested judgment of the regional court) – the user can easily recognize the meaningfulness and coherence of one’s own selection decisions. The general filling out aids provided by the program meet the requirements for a legal examination as defined in § When using the program – as shown in Annexes K5 and K7 (part of Annex 1 attached to the contested judgment of the Regional Court) – the user can easily recognize the meaningfulness and coherence of one’s own selection decisions. The general filling out aids provided by the program meet the requirements for a legal examination as defined in §2 para. 1 RDG not at all.
Insofar as a danger for the individual seeker of law can lie in the promotion of a computer-assisted legal document generator as an offer comparable to legal advice, the business model as such does not need to be prohibited under § 3a UWG, §§ 2 , 3 RDG, but (only) a prohibition of misleading advertising for the business model permitted as such.
For any defects in the text modules and / or their logical connection or other defects in the program, the service provider may be contractually liable. In this respect, too, there is no need to prohibit the business model.
d) Even if – with the regional court – it is assumed that the defendant is active in specific legal matters, there is still no need for a legal examination of the individual case. This covers every concrete subsumption of a situation under the relevant legal provisions, which goes beyond a mere schematic application of legal norms without further legal examination; Whether it is a simple or difficult legal question is irrelevant … According to the legislature, such a test must be part of the service either objectively, according to the relevant public opinion, or subjectively, based on a wish expressed by the person seeking the right. Activities that objectively do not go beyond a schematic application of the law, nevertheless fall under Section 2 (1) RDG, if the person seeking legal advice clearly expects special legal support or clarification ( BT-Drucks. 16/3655 on the requirement of a “special legal examination” ; BT-Drucks. 16/6634 p. 50 f.).
a) Viewed objectively, the program at issue with its guidance through a question-and-answer catalog can do no more than a purely schematic application of legal norms, even if the document created with the program may have a high degree of complexity and individuality … The software is programmed in such a way that a predetermined, standardized response is given to every instruction, no matter how user-friendly the program may be. The strictly logical procedure that runs during the application of the program and always leads to the same unambiguous results can be seen as “subsumption” …,
bb) A legal check is also not subjectively part of the service at issue due to a request expressed by the person seeking the right. The defendant’s customers do not indicate that they are using the program with the aim or in the expectation of examining their concerns using the relevant statutory provisions or of being informed about the legal consequences. Anyone who actually uses the program is aware that they will not receive any legal advice when choosing the options, but will insert a life issue into a given grid on their own responsibility, while a purely schematic yes-no code is executed in the background. The preparation of draft contracts generally requires a legal review, However, this is here – noticeably – shifted to the programming level. The document generator is a selection aid for legally pre-determined, but in the matter test-neutral decisions … Support in filling out a form is no longer a legal service even if legal issues are discussed in this context …
The above decision has been translated by the Google Translate robot, and I have only provided very little changes and amendments. I am quite sure that you can understand the reasons why the Cologne Regional Appeal Court has allowed the contract drafting robot to be offered in Germany.
There is currently a pending appeal to the Federal Court of Justice, but I cannot really see why the decision of the Cologne Regional Appeal Court should be reversed. I find the above reasoning in favor of the SmartLaw contract drafting robot very convincing.
Call to Action
Legal drafting robots are the future.
There is now the writing on the wall.
Read the story of “Eddie the Bartender”, click here. It is the story of a man who saw his job going under with the upcoming prohibition being put in place. Yet he did nothing about it until he was confronted with the facts of reality.
Martin “Robot” Schweiger