There are lots of gray areas in professional regulation - gaps and overlaps in legislation within and across professions and different rules from one jurisdiction to the next. Now software is presenting some new and different challenges.

Software - practicing law without a license

A California appeal court recently ruled that a software-provider was practicing law without a license. The company’s web-based “expert system” for bankruptcy filings made too many decisions to be considered a clerical tool. The program determined where to put the information, selected exemptions and supplied relevant legal citations. And the company and its software obviously were not licensed to practice law, nor was the entrepreneur behind it.

Jayson Reynoso, the consumer in the case, paid $219 for 60 days of access to the “Ziinet Bankruptcy Engine” that was described as an expert system that knows the law. He entered his personal information including debts, income and assets, and then the software generated a complete set of bankruptcy forms. This included an affidavit for him to sign, stating he had done all the legal research himself. As it turned out, there were some errors in these forms, and Reynoso blamed the software … hence the court case.

Regulations for software

Clearly this is not what lawmakers originally had in mind. Registration or licensing was intended for people with specialized professional training who perform services that pose risks to public interests, not websites or software. But, in fact, some elements of professional practice can be expressed as algorithms, and professionals do develop software to support their work. It’s not a big stretch to extend these to directly support their clients. So it may not be a question of whether, but when regulators will need to regulate software. How could this be done? Requirements for disclosing risks, certifying the accuracy of the software, mechanisms for complaints and remedies? What do you think? As always, we are interested in the views of our readers. You can share your thoughts here.