Court Preliminary Enjoins New York’s Limits on Unauthorized Practice of Law,
From Judge Paul Crotty’s decision yesterday in Upsolve, Inc. v. James (S.D.N.Y.); not sure that this will survive on appeal (as the court notes, appellate courts have upheld such limits on nonlawyers’ giving people legal advice), but it seems important and much worth following:
“The orderly functioning of our judicial system and the protection of our citizens require that legal advice should be offered only by those who possess the requisite qualifications and authorization for the practice of law. At the same time, one of the most fundamental principles of our system of government prohibits any restraint on a citizen’s right to disseminate his views on important public issues.” Dacey v. New York Cty. Lawyers’ Ass’n (2d Cir. 1969). Sometimes these two principles conflict, and one must yield to the other.
This case exemplifies that conflict. Plaintiffs—a non-profit organization and a non-lawyer individual—seek to encroach upon a small part of what has heretofore been the exclusive domain of members of the Bar. Plaintiffs have crafted a program that would train non-lawyers to give legal advice to low-income New Yorkers who face debt collection actions. Specifically, Plaintiffs want to help those New Yorkers fill out checkboxes on a one-page answer form provided by the State, in the hopes that more people will avoid defaulting outright in such actions. The legal advice would be free and confined to helping clients complete the State’s one-page form.
Plaintiffs’ proposal faces one problem: by giving legal advice as non-lawyers, their activities would constitute the unauthorized practice of law (“UPL”) under several New York statutes. They risk being sued by the Defendant in this case, the New York State Attorney General. Thus, Plaintiffs seek an injunction that prevents the Attorney General from enforcing the UPL rules against them.
The Court concludes a preliminary injunction is warranted. The UPL rules cannot be applied to Plaintiffs’ program because the First Amendment protects their legal advice as speech, and the UPL rules are not narrowly tailored to satisfy strict scrutiny in this context. Further, the balance of equities favors an injunction because Plaintiffs’ program would help alleviate an avalanche of unanswered debt collection cases, while mitigating the risk of consumer or ethical harm. And enjoining enforcement against Plaintiffs alone, whose activities are carefully limited to out-of-court advice, will not threaten the overall regulatory exclusivity of the legal profession….
[A]n abstract “right to practice law” is not at issue in this narrow challenge. The Court does not question the facial validity of New York’s UPL rules to distinguish between lawyers and non-lawyers in most settings, and to regulate all sorts of non-lawyer behavior. Instead, the issue here is a narrow one: whether the First Amendment protects the precise legal advice that Plaintiffs seek to provide, in the precise setting in which they intend to provide it. The Court holds that it does….
[L]ower courts have overwhelmingly concluded that UPL statutes regulate professional “conduct” and merely burden a non-lawyer’s speech incidentally. These authorities, however, have never addressed the narrow—and novel—question the AJM program presents here.
For example, many UPL cases have focused on specific “conduct” that non-lawyers sought to undertake. Non-lawyers have been excluded from “drafting” pleadings and “filing” legal documents. Conduct could also include “representing” clients in a courtroom or proceeding. These conduct-focused cases are inapposite, as Plaintiffs do not seek to do any of these activities. The AJM program does not allow Justice Advocates to file pleadings, represent clients in court, or handle client funds. Their counsel is limited to out-of-court verbal advice.
Other distinguishable cases have addressed facial challenges to UPL rules. Rather than focusing on discrete types of speech that non-lawyers could provide, these cases have concluded that the abstract practice of law does not implicate First Amendment scrutiny as a general matter. That approach would be overinclusive here, given Plaintiffs bring an as-applied challenge about spoken advice they would give to clients. Moreover, these cases have been called into serious doubt by NIFLA v. Becerra (2018), which applied intermediate scrutiny to professional conduct regulations at the very least—not rational basis review, or indeed complete lack of First Amendment scrutiny, as the Attorney General proposes.
{NIFLA provided an example of a professional conduct regulation that only incidentally burdened speech from Planned Parenthood of Southeastern Pa. v. Casey (1992). In Casey, doctors were required to provide information to a woman deciding whether to proceed with an abortion—a so-called “informed-consent” provision—before performing that procedure. Although the informed-consent provision affected what licensed medical providers were required to say in specific contexts with their patients, the NIFLA Court emphasized the regulation only “incidentally burden[ed]” speech in the context of professional conduct: before a medical procedure. By contrast, the state regulation in NIFLA required organizations offering pregnancy services (but not provide abortion procedures) to provide notic
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