AI-powered legal tools are forcing a regulatory reset, and that means the question is no longer who may provide legal help, but how to protect consumers while expanding access to justice
Key insights:
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Unauthorized practice of law doctrine is a poor fit for regulating AI and legal technology — UPL remains important when people represent others in court or affect legal proceedings, but it does not translate cleanly to software. Extending UPL to software moves the doctrine away from its original purpose and toward regulating the existence of tools rather than the risk of harm.
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Legal technology should be regulated through consumer protection principles, not tool-based restrictions — Rather than asking whether an AI product or software platform “practices law,” regulators should focus on whether the tool misleads users, performs as advertised, provides adequate transparency, or causes demonstrable consumer harm.
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A harm-based framework can protect consumers while expanding access to justice — Because most legal needs remain unmet, AI and justice tech can provide meaningful support to people who would otherwise receive no legal help. Safe harbors, disclosures, and accountability for fraud, negligence, or false advertising would better balance innovation with consumer protection.
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This is the second of a two-part blog series examining how regulators, the legal profession, and individual litigants are looking at the unauthorized practice of law (UPL). We first looked at the history of UPL, and now this installment suggests a consumer protection-based method of regulation to replace today’s supplier-based regulations.
The legal industry has reached an inflection point in which the unauthorized practice of law (UPL) doctrine is no longer the right framework for regulating modern legal services. As technology reshapes how legal help is delivered, the focus must shift from policing who can provide legal support to ensuring that consumers are protected from harm.
This does not mean dismantling the doctrine entirely. UPL continues to serve an important function in which individuals represent others in court or otherwise engage in conduct that affects the integrity of legal proceedings — because courts need enforceable boundaries around who may appear before them.
Those considerations, however, do not translate cleanly to today’s AI-driven advanced technology. Extending UPL to software may shift the doctrine away from its original purpose and toward regulating the existence of tools rather than the risk of harm. A more effective approach is to apply existing consumer protection principles — such as fraud, negligence, and false advertising — to evaluate whether legal technologies are delivering accurate, transparent, and reliable support for users.
UPL continues to serve an important function in which individuals represent others in court or otherwise engage in conduct that affects the integrity of legal proceedings — because courts need enforceable boundaries around who may appear before them.
Over the past several decades, we have bent UPL law to fit emerging models of legal assistance, but with AI we have reached the point at which we should not attempt to stretch it further. AI has expanded the capabilities of legal technology beyond document automation to include research, summarization, and guided analysis. These tools are now widely available and are being used by individuals who would otherwise navigate legal issues without assistance.
At the same time, familiar regulatory arguments are being applied to these new tools. Assertions that such systems constitute UPL rely on assumptions that are increasingly difficult to reconcile with how these technologies function and are used.
Users generally understand that these systems are not lawyers. Engagement with AI tools is driven by accessibility, cost, and convenience, particularly in a landscape in which a substantial portion of legal needs go unmet. The more relevant inquiry is whether these tools provide a meaningful improvement compared to having no assistance at all.
Shifting from UPL to consumer protection
When consumers turn to technology, outcomes will vary, as they do across all forms of legal support. When issues arise, existing legal frameworks already provide mechanisms for accountability. Questions of fraud, negligence, and misleading representations can be addressed through established consumer protection laws without relying on an expanded interpretation of UPL.
Focusing on demonstrable harm rather than the mere existence of a tool aligns regulatory efforts with their intended purpose. It also reduces the risk of limiting innovation that could address persistent gaps in access to legal services encountered by so many individuals today. When liability is tied to the mere provision of technology, rather than to harmful conduct, the result is often reduced investment and slower development of potentially beneficial solutions.
Some jurisdictions have begun to adopt approaches that reflect this distinction. Non-prosecution policies, disclosure requirements, and clearly defined safe harbors for AI-driven tools can provide a framework in which innovation can proceed alongside appropriate safeguards. Indeed, these models emphasize transparency and consumer awareness while allowing for continued experimentation and improvement.
Legal doctrine in transition
Whether state regulators drive the change or watch from the sidelines, there are broader legal considerations on the horizon. On the federal level, the U.S. Federal Trade Commission (FTC) has already signaled that a change towards harm-based regulation as opposed to tool-centered regulation is coming.
In his concurrence in a 2024 settlement with DoNotPay, which had billed itself to consumers as “the world’s first robot lawyer,” FTC Commissioner Andrew Ferguson said:
“My vote should not be taken as support for the State Bar of California’s claim that DoNotPay was engaged in the unauthorized practice of law. The Commission does not enforce state occupational-licensing laws like California’s unauthorized-practice-of-law prohibition. And if a company were to create a computer system capable of giving accurate legal advice and drafting effective legal documents, or honestly advertise a system that provides something less, I doubt that the aggressive enforcement of lawyers’ monopoly on legal service would serve the public interest.”
This aligns with remarks from U.S. Supreme Court Justice Neil Gorsuch’s confirmation hearing when he stated: “Why is it that every time certain companies that provide online legal services for basic things get sued every time they move into a new State?”
While approaching it from different angles, courts are arriving at similar positions. In Williams v. Honl, an Oregon court of appeals case about fabricated citations, the court stated: “Regardless of provider, a generative artificial intelligence program is not, itself, a lawyer.” While perhaps not intended, the logical extension of this is that a tool cannot be engaged in UPL — only the human using it can.
Finally, recent judicial reasoning, such as in the Supreme Court case of Chiles v. Salazar, suggests a closer examination of attempts to regulate speech by categorizing it as professional activity. The Court found professional speech protected by an 8-1 vote, suggesting bipartisan questions about whether professional licensing can continue to restrict speech.
Aligning regulation with reality
Within this evolving landscape, the central policy question is how best to protect consumers while enabling meaningful improvements in access to legal support. Frameworks designed for earlier models of service delivery can be difficult to apply effectively to new forms of technology without producing unintended consequences.
Instead, a consumer-focused approach can direct attention to the quality, accuracy, and transparency of services. It can evaluate whether users are misled, whether tools perform as described, and whether harm can be identified and addressed.
While AI-driven technology offers a way to extend the reach of legal support systems and to develop solutions that operate at a scale not previously achievable, the concept of UPL is still a valid one, albeit within a more limited and clearly defined scope.
As the legal system rapidly evolves, aligning regulatory approaches with current realities allows for both the protection of consumers and the development of the tools that expand access to justice in practical and sustainable ways.
You can find more about the challenges around issues of access justice here
