The First Amendment Protects the Right to Give Basic Legal Advice

pa href=https://www.cato.org/people/thomas-berry hreflang=undThomas A. Berry/a

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pAccess to justice for low‐​income citizens is crucial for ensuring anbsp;fair and impartial legal system. One group trying to expand such access is a href=https://time.com/6143535/rohan-pavuluri-upsolve-lawsuit-interview/Upsolve/a, anbsp;financial‐​education and civil rights nonprofit. Upsolve currently helps low‐​income families file for bankruptcy for free, but it wants to do more. Upsolve wants to aid low‐​income individuals by helping them respond when they are sued for allegedly unpaid debts. Yet the state of New York, rather than welcoming this service, currently criminalizes it. Now Upsolve has a href=https://www.nytimes.com/2022/01/25/nyregion/consumer-debt-legal-advice.htmlchallenged/a this New York law in federal court. And its a href=https://reason.com/2022/01/31/new-york-restricts-free-legal-advice-now-it-faces-a-first-amendment-lawsuit/lawsuit/a may turn out to be anbsp;crucial precedent in establishing the right to provide professional advice./p

pAs Upsolve notes in its a href=https://uploads-ssl.webflow.com/60d147561d53665ec78fff2c/61f0242df612a4421158177a_American-Justice-Movement-Case.pdfcomplaint/a, debt collection actions are among the most common types of lawsuits in New York State. Compared to many other types of legal disputes, responding to anbsp;debt collection suit is relatively straightforward. But that doesn’t mean it is an easy task for those who are most often sued for debt collection. As Upsolve explains, “the vast majority of defendants are low‐​income individuals who cannot afford anbsp;lawyer, cannot find pro bono counsel, and face additional barriers that make it difficult to prepare and file an answer themselves. The result is that the large majority of low‐​income New Yorkers in such actions default.”/p

pTo solve this problem, Upsolve developed an innovative solution. The organization has trained “professionals who are not lawyers to provide free legal advice on whether and how to respond to anbsp;debt collection lawsuit.” And if the program were allowed to go forward, “all advice under the program would be reliable, free, straightforward, and narrowly circumscribed, provided on anbsp;strictly non‐​commercial basis to ensure that defendants can understand their rights and respond to the debt collection lawsuits against them.” This free legal advice would be aimed at “increasing access to the courts and thereby protecting the property and liberty of low‐​income New Yorkers who are currently unable to understand or access their legal rights when faced with anbsp;debt collection action.”/p

pBut one legal impediment stands in the way of this program: New York’s law against the unauthorized practice of law (UPL). New York forbids anyone who is not anbsp;licensed lawyer from providing legal advice, no matter how straightforward and simple. That the advice is emcorrect/em and desperately needed is not anbsp;defense under the law. Even if Upsolve’s volunteers gave flawless, free, and greatly appreciated assistance, they would risk criminal prosecution for their efforts./p

pThat’s where this lawsuit comes in. Upsolve is narrowly challenging New York’s UPL law as applied to their program on First Amendment grounds. As Upsolve argues, New York’s law criminalizes speech solely on the basis of its content: Upsolve’s volunteers can advise New York residents about many other topics, but they run afoul of the law if their speech includes advice on how to respond to anbsp;debt‐​collection lawsuit. Under well‐​established Supreme Court case law, laws that ban speech solely on the basis of its content are subject to “strict scrutiny” review under the First Amendment. a href=https://www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdfemReed v. Town of Gilbert/em/a (2015)./p

pA law can only survive the demanding “strict scrutiny” standard if it is narrowly drawn to advance anbsp;compelling state interest. And while other applications of the UPL law may well satisfy that high standard (for example, limiting who can provide highly complex legal advice on anbsp;specialized topic to anbsp;paying client), its application to Upsolve’s program surely does not. As Upsolve convincingly explains, nothing about the advice that Upsolve plans to give is so complex that it can only be entrusted to those who have undergone three years of expensive legal education./p

pIt is likely that New York will defend the law by arguing that legal advice should be treated as professional conduct, not speech. But as explained in an a href=https://uploads-ssl.webflow.com/60d147561d53665ec78fff2c/62212d49422bf2759b404d7a_Upsolve%20%26%20Rev.%20Udo-Okon%20v.%20NY-%20Amicus%20Briefs%20Filed%20in%20SDNY%2C%20March%202022%20.pdfamicus brief/a filed by the Institute for Justice, that argument is at odds with Supreme Court precedent. In a href=https://www.supremecourt.gov/opinions/09pdf/08-1498.pdfemHolder v. Humanitarian Law Project/em/aem /em(2010), the government attempted anbsp;similar argument to defend anbsp;law against providing legal advice to certain foreign groups. The government argued that providing such legal advice was in fact only emconduct/em, namely providing “material support” to these foreign groups. But not anbsp;single member of the Supreme Court accepted that argument. As the majority opinion explained, the law at issue regulated speech “on the basis of its content” because whether people could legally speak to the foreign groups depended on “what they say.” Thus, the Court subjected the law to strict scrutiny./p

pAnd the Supreme Court has more recently clarified that this rule holds true even when the law at issue is a “professional speech” regulation like anbsp;licensing requirement. In a href=https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdfemNIFLA v. Becerra/em/aem /em(2018), the Court squarely rejected the argument that anbsp;lower standard of scrutiny should apply to the regulation of professionals, like doctors and lawyers, when they speak as part of their work. As the Court explained, such anbsp;rule would give “the States unfettered power to reduce anbsp;group’s First Amendment rights by simply imposing anbsp;licensing requirement.”/p

pUpsolve’s lawsuit is one of the most promising challenges to anbsp;state’s overbroad UPL law since emHolder/em and emNIFLA /emwere decided. The court should strike down New York’s counterproductive application of its UPL law and allow Upsolve to continue its vitally important work./p