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Practice Notes
Wills with LexisNexis
Empowering Paralegals and Avoiding Professional Responsibility Pitfalls
By Major Ceara L. Riggs
Until recently, Drafting Libraries – Wills (DL Wills) was the U.S. Army’s will drafting software of choice. This program, which appeared to have been created at the same time as Duck Hunt1 with an interface that mirrored the Choose Your Own Adventure2 book series, enabled an experienced legal assistance attorney or paralegal to draft a will for any state in less than fifteen minutes. A central permissions authority needed to grant individual users access to the software.3 Yet, even upon receiving access, limited options and a lack of internal program guidance made it difficult for users to verify whether the drafted wills incorporated the latest state law and fully met the client’s intent.4
On 1 October 2021, LexisNexis became the Army’s new technology platform for drafting estate planning documents, with full functionality in all jurisdictions available by the end of 2022.5 Upon release, all Department of Defense Judge Advocate Legal Services members could immediately access the estate planning program through their LexisNexis accounts, including both lawyers and nonlawyer assistants.6 Unlike DL Wills, LexisNexis eliminated the permission requirement to download and install the software before accessing estate planning preparation documents.7 Accordingly, anyone with an internet connection and access to LexisNexis can use the software. LexisNexis also offers a user-friendly interface to navigate between will drafting sections and easily make changes, corrections, or updates as needed.8 Perhaps most importantly, and arguably most concerningly, LexisNexis offers an “i” button that practitioners can click to receive drafting notes, better develop their estate planning practice, and accurately answer client questions specific to any jurisdiction.9
This increased functionality and legal practice support, combined with unrestricted availability to lawyers and nonlawyers alike, is the subject of this practice note. These changes open the door for supervising attorneys to empower legal assistance offices’ exceptionally valuable assets—their paralegals—to increase their engagement in estate planning drafting and preparation. Yet, how a lawyer trains and supervises their subordinates to draft estate planning documents while preventing the unauthorized practice of law can become challenging with such an accessible, easy-to-use, and informative program. Fortunately, the Rules of Professional Conduct for Lawyers (Rules) do not prohibit delegating functions to paralegals; instead, they permit paralegals to “conduct any law-related services at which they are competent, supervised, and authorized by appropriate authority.”10 Nevertheless, lawyers continue to spend significant amounts of their time drafting wills, which can result in less time spent doing what their paralegals cannot: providing legal advice and counseling.11 With proper training and supervision, our Judge Advocate General’s (JAG) Corps’s competent, motivated, and professional paralegals can use LexisNexis to save lawyers and clients time, increase the efficiency of the office, and empower the legal assistance practice to expand into more complex areas.
Navigating the Relevant Rules of Professional Conduct
Competence
Competence must be the primary focus when considering how best to supervise and train paralegals to create estate planning documents. Despite LexisNexis’s wide accessibility and permissive use, Army Regulations and state bar rules still direct minimum competency requirements. Rule 1.1 of the Rules states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”12 Lawyers can obtain this competence through self-study.13 To this end, several resources are available, including LexisNexis training events, resources, practice tips, The Judge Advocate General’s Legal Center and School’s Estate Planning Deskbook,14 legal assistance continuing education, and repeated practice using the program.
These competency requirements apply to lawyers and extend to their nonlawyer assistants, including paralegals, secretaries, clerks, investigators, and law student interns.15 According to Rule 5.3(b), “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”16 This requires lawyers to provide sufficient instruction and supervision to ensure paralegals are competent in creating legal documents, including wills, healthcare powers of attorney, advanced medical directives, and other estate planning documents. The lawyer should be responsible for the paralegal’s work product, as paralegals might not have legal training and may not be subject to professional discipline.17 Accordingly, as a baseline, it is prudent for a lawyer to train themselves and their paralegals using the standardized resources mentioned above. Then, before paralegals can independently draft estate planning documents, lawyers and supervisors must observe, evaluate, and critique their prepared documents to ensure competency, consistency within the office, and compliance with civilian and military rules of professional conduct.
The Unauthorized Practice of Law
When using a program as user-friendly and accessible as LexisNexis, competency and supervisory requirements are especially important to prevent paralegals from inadvertently engaging in the unauthorized practice of law. The unauthorized practice of law in the military is, in relevant part, two-fold. It prohibits (1) a lawyer from assisting a person who is not a member of the bar in performing an activity that constitutes the unauthorized practice of law and (2) a paralegal from practicing law.18 The practice of law includes out-of-court services such as “rendering any service requiring the use of legal knowledge.”19 The Rules specifically include providing a document or instrument that is legal in nature, such as a will or power of attorney, in the practice of law.20 With the information and support that LexisNexis practice tips provide, paralegals and their lawyers, as supervisory attorneys, can potentially wade into the dangerous proverbial waters of the unauthorized practice of law.
Nevertheless, the Rules (and the JAG Corps) recognize paralegals’ exceptional value. Although the Rules are meant to protect the public from unqualified individuals rendering legal services, they expressly permit a lawyer to “employ[] the services of nonlawyer assistants and delegat[e] functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work.”21 The Rules even contemplate that nonlawyer assistants may conduct law-related services and permit them to do so as long as they are “competent, supervised, and authorized . . . provided they do not engage in the unauthorized practice of law.”22 Herein lies the risk inherent in paralegals preparing estate planning documents.
Recognizing that the primary purpose of the Rules is to protect the public, a paralegal must, at the outset, make clear to clients that they are not a lawyer. A client cannot expect a “nonlawyer assistant to be able to take certain actions to advance his or her case”23 outside of creating the requested estate planning documents and passing them to the supervising lawyer for review, refinement, and, when necessary, legal advice and counseling.24 In other words, there is a clear difference between a paralegal drafting a healthcare proxy and a paralegal answering a client’s questions about whether they need a healthcare proxy. The first, assuming the paralegal is competent, supervised, and authorized, is a permitted law-related service; the second may be the unauthorized practice of law regardless of whether the paralegal did so innocently or deliberately.
A typical conversation in legal assistance offices—and the first opportunity to engage in the unauthorized practice of law—starts with a client asking a paralegal, “Do I need a will?”25 Regardless of whether the answer is yes or no, any response other than, “I can’t answer that question, but if you’d like to consult an attorney or for our office to draft you a will, I can schedule an appointment for you,” would likely constitute the unauthorized practice of law. Yet, assuming a paralegal provides the answer above, nearly all their subsequent actions can provide faster service to the client, save the attorney time, and increase the office’s ability to see more clients and address more complex issues.
Maximizing Talent and Technology
After making their role clear, the paralegal can begin drafting documents. While doing so, the paralegal must balance providing excellent customer service with avoiding the unauthorized practice of law. This can become especially tricky if, as may happen across legal assistance offices, the paralegal has more experience than the attorney. For example, if a client asks whether they should list their spouse or their more responsible sibling as executor, a paralegal may know that the most responsible person should be named executor. Nonetheless, sharing that knowledge, if it is perceived as advice, could mean the paralegal has engaged in the unauthorized practice of law.26 While a paralegal can complete the LexisNexis interview under the supervision of an attorney, they are not authorized to give legal advice—even if the paralegal has heard an attorney provide the same response to a question hundreds of times.27
To some extent, using the LexisNexis “i” buttons can protect a paralegal from engaging in the unauthorized practice of law without continuous attorney oversight. For example, in Pennsylvania, a testator, a person who has a will or given a legacy, is not required to include their city, county, or state of residence to effectively execute a will.28 Accordingly, the automated template interview prompts the question, “Does Testator wish to include their city, county, and state of residence?”29 An “i” button follows this question.30 When the user—paralegal or attorney—clicks the “i” button, a sidebar opens to provide additional guidance.31 That guidance, which the paralegal can read directly to the client without engaging in the unauthorized practice of law, tells the client that this is an optional provision, explains the difference between residence and domicile, and describes the role of various factors and the client’s intent in determining residency and domicile.32 The paralegal might know all of this information, but the unauthorized practice of law is largely a reflection of the client’s perception.33 A client is more likely to perceive information as advice if a paralegal answers the question based on their professional experience rather than indicating that “LexisNexis says . . .”
In practice, a paralegal may come to this question in the interview and ask the client whether they wish to include their city, county, and state of residence. A client may respond with, “I don’t care,” or “What do you think?”34 This invites an easily undetectable opportunity for the paralegal to engage in the unauthorized practice of law. Saying “I recommend” differs significantly from reading the LexisNexis drafting note. The first is legal advice, and the second is a recitation of factual information. It is still prudent office practice to require the paralegal to note the client’s question and inform the reviewing attorney for their follow-up.35 However, sharing relevant drafting notes with the client allows them to make more educated decisions and complete more of the draft prior to attorney review. This can increase the client’s ability to comprehensively consider their options while decreasing the amount of time the attorney spends counseling the client.
Practitioners who have spent years (if not decades) using DL Wills might point out that this process was possible with DL Wills. While true, the LexisNexis software makes the process more efficient and practicable. For example, when a paralegal completed a will using DL Wills, the attorney had to navigate through the entire program and every question again to make any changes or adjustments. This could amount to more than two hours of work.36 In contrast, LexisNexis provides several features that further empower paralegals to generate the estate planning documents a client wants and empower attorneys to effectively and efficiently verify the accuracy of the documents. An efficient office can retrieve the client intake questionnaire from the client; have the paralegal prepare the requested documents in advance; have the attorney review the documents; return them to the client for review, corrections, and questions;37 and then set the client’s appointment with the attorney to advise on any remaining questions and finalize the will. Although this may include more steps than existing processes in some legal assistance offices, the trade-off for time is a better product that more effectively utilizes paralegals’ skills and capabilities.
First, the LexisNexis feature that allows users to navigate directly to any section of the automated template enables paralegals to make note of client questions or concerns regarding specific sections.38 The attorney can then go directly to those sections to review them rather than being forced to click through every single interview screen. Second, when a section is complete in the automated template, a green bubble with a white checkmark populates to indicate completion.39 A white bubble indicates a section that has yet to be started.40 This allows a paralegal to complete the will to the best of their ability with no ambiguity regarding what still needs to be addressed. Third, the “Answer Summary” feature provides a summary view of all of the interview questions and the answers provided, which allows attorneys to quickly check that all the client’s information and concerns are included and addressed in the will without having to hunt for the same information in the drafted document itself.41
Conclusion
Hopefully, this article has encouraged paralegals to get the “reps” necessary to become competent in LexisNexis will drafting while remaining confident that they and their attorneys are avoiding any violations of the Rules. It is practical, not aspirational, for paralegals to draft all the estate planning documents a client needs without engaging in the unauthorized practice of law. The LexisNexis estate planning automated templates make it especially so by providing easy-to-navigate resources and information. By providing proper training and supervision, attorneys can ensure competency, empower action, and motivate everyone in a legal assistance office to increase the team’s offerings to clients. TAL
MAJ Riggs is the Brigade Judge Advocate for the 1st Brigade Combat Team, 82d Airborne Division, at Fort Liberty, North Carolina. She previously held the Estate Planning portfolio as an Associate Professor in the Administrative and Civil Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
Notes
1. Duck Hunt (Nintendo 1984).
2. See, e.g., Edward Packard, The Cave of Time (1979); see also About Us, Choose Your Own Adventure, https://www.cyoa.com/pages/aboutus (last visited Oct. 7, 2024).
3. This statement is based on the author’s recent professional experiences as an Associate Professor, Administrative Law Division, The Judge Advocate General’s Legal Center and School, in Charlottesville, Virginia [hereinafter Professional Experiences].
4. Id.
5. E-mail from Melissa Halsey, Chief, Legal Assistance Pol’y Div., to Chiefs of Legal Assistance (Jan. 19, 2022, 14:30 EST) (on file with author). The previous program, Drafting Libraries (DL) Wills, ceased operations and updates. Id. While personnel were not directed to stop using DL Wills immediately, they were encouraged to switch to LexisNexis sooner rather than later to prevent service interruption and out-of-date application of estate planning law. Id.
6. See Practice Note 1, Off. of Judge Advoc. Gen. Legal Assistance Pol’y Div. (on file with author).
7. See JAGCNet to LexisNexis Single-Sign On, JAGCNet, https://www.jagcnet2.army.mil/Sites/jagc.nsf/LexisLogin.xsp (last visited Oct. 7, 2024). The only requirement to access LexisNexis is that users accept the terms of service. See id. Specifically, these terms state, in relevant part,
Use LexisNexis prudently; limit use to the amount necessary to support your research or mission. These services are provided for official use only; unauthorized use will result in your JAGC-funded LexisNexis account being disabled. Use of LexisNexis is limited to the performance of your official duties in support of the military’s legal mission. Under no circumstances is personal use, civilian practice, or personal professional development permissible . . . . All members of the Army Judge Advocate General’s Corps including attorneys, paralegals, law clerks, legal interns, court reporters, legal administrators, administrative assistants, legal technicians, librarians, and volunteer personnel when carrying out official business within the parameters of responsibilities as outlined throughout Army Regulation 27-1, whether civilians, active duty, reserve, or Army National Guard.
Id.
8. Professional Experiences, supra note 3.
9. LexisNexis, Trust and Estates User Guide 2 (2022). The LexisNexis program has an “Additional information button”—or “i” button—which provides supplemental help for users to answer an interview question, including legal questions and drafting notes. Id.
10. U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers r. 5.5 cmt. (6) (28 June 2018) [hereinafter AR 27-26].
11. Professional Experiences, supra note 3.
12. AR 27-26, supra note 10, r. 1.1.
13. Id. r. 1.1 cmt. (3).
14. Admin. & Civ. L. Dep’t, The Judge Advoc. Gen.’s Legal Ctr. & Sch., U.S. Army, Estate Planning Deskbook (2016).
15. See AR 27-26, supra note 10, para. 7(a)(1)(j) (“[N]onlawyer legal personnel include, but are not limited to: legal administrators (MOS 270A), paralegal Soldiers (MOS 27D), court reporters, legal interns, and civilian support personnel including paralegals, legal secretaries, legal technicians, secretaries, court reporters, and other personnel holding similar positions.”).
16. Id. r. 5.3(b).
17. See id. r. 5.3 cmt. (3).
18. See AR 27-26, supra note 10, r. 5.5. “A lawyer’s performance of legal duties pursuant to a military department’s authorization, however, is considered a Federal function and not subject to regulation by the states. Thus, a lawyer may perform legal assistance duties even though the lawyer is not licensed to practice in the jurisdiction within which the lawyer’s duty station is located.” See id. r. 5.5 cmt. (3).
19. Id. r. 5.5 cmt. (2).
20. Id.
21. Id.
22. Id. r. 5.5 cmt. (6).
23. Id. r. 5.5 cmt. (7).
24. See id.
25. Professional Experiences, supra note 3.
26. See AR 27-26, supra note 10, r. 5.5.
27. See id.
28. See 20 Pa. Cons. Stat. § ٢٥٠٢ (٢٠٢٤).
29. E.g., Will for Individual with Spouse (Optional Trust(s) for Spouse and/or Children) (PA), Automated Templates: Lexis+, https://plus.lexis.com/practical-guidance-trusts-estates (last visited Oct. 7, 2024) (log into Lexis+; select “Practical Guidance”; select “Trust and Estates”; select “estate Planning Forms with Military Language Resource Kit”; select “Pennsylvania” jurisdiction; choose your form; view the “Testator” section of the automated template).
30. See id.
31. Id.
32. See id. To understand the depth and breadth of the provided guidance, the full content of this drafting note follows:
Use the optional provisions to memorialize the testator’s current residence or domicile. A declaration that the testator “currently resides” in a stated jurisdiction specifies the testator’s current physical address, which may be either temporary or permanent. Alternatively, by stating that the testator “is a resident of” a stated jurisdiction, the testator declares that jurisdiction to be their legal residence or domicile. Although generally guided by the intent of the individual, other factors used to establish domicile include:
- Voter registration
- Car registration
- State of residency on the individual’s tax returns
- Address on passport
If the testator declares themselves as a resident of a specified jurisdiction, it is generally advisable to draft the will in accordance with the laws of such jurisdiction.
In some circumstances, such as when there is a strong possibility the testator may move to another jurisdiction, it may be advisable to omit from the will any express statement that the testator resides in a certain state, as well as any other references to that state. The absence of express references to a certain state may reduce the risk of more than one state claiming the testator is a resident. However, if the testator owned real property in other states, an ancillary probate proceeding must be commenced in each state where real property exists in order to transfer ownership or otherwise dispose of the real property. Note, however, that the real property would not be subject to ancillary probate in another jurisdiction if, at the testator’s death, the testator owned the property jointly with survivorship rights and the joint tenant is living, or in a trust.
Id.
33. See AR 27-26, supra note 10, r. 5.5 cmt. (7).
34. Professional Experiences, supra note 3.
35. Id.
36. Id.
37. Even though they have yet to be executed, these drafted documents are still military instruments. As such, they should be provided to the client as a locked PDF with a “DRAFT” watermark to prevent the client from making any alternations that would require additional time to identify and review. All changes to the drafted documents should be made by personnel in the servicing legal assistance office.
38. LexisNexis Legal, Overview of Automated Templates on Lexis+, YouTube, at 2:46 (Apr. 8, 2022), https://www.youtube.com/watch?v=XUkEDjfZD00.
39. Id. at 3:03.
40. Id. at 3:15.
41. Id. at 4:04.