Upsolve Wins the Right to Give Basic Legal Advice
Two months ago, I wrote about a pathbreaking legal challenge aimed at expanding access to justice. The case was brought by Upsolve, a 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. To this end, Upsolve has (in its own words) trained “professionals who are not lawyers to provide free legal advice on whether and how to respond to a debt collection lawsuit.” 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 a debt collection action.”
But before Upsolve could put this plan into action, a legal impediment stood in its way: New York’s law against the unauthorized practice of law (UPL). New York forbids anyone who is not a licensed lawyer from providing legal advice, no matter how straightforward and simple. That the advice is correct and desperately needed is not a defense under the law. Even if Upsolve’s volunteers gave flawless, free, and greatly appreciated assistance, they could have risked criminal prosecution for their efforts.
That’s where Upsolve’s lawsuit came in. Upsolve narrowly challenged New York’s UPL law, as applied to their program, on First Amendment grounds. And last week, in a first‐of‐its‐kind decision, a federal judge agreed and blocked New York from enforcing its UPL laws against Upsolve’s volunteers. The opinion is not just an enormous win for expanding access to justice. It is also a precedent that could serve as a model for challenges to other overbroad regulations of so‐called “speaking professions.”
In the opinion ruling for Upsolve, Judge Paul Crotty of the Southern District of New York recognized that Upsolve volunteers want to provide “pure verbal speech.” As Judge Crotty explained, Upsolve volunteers did not want to “file pleadings, represent clients in court, or handle client funds,” all activities that can more plausibly be described as a mixture of speech and conduct. Instead, Upsolve volunteers will only give advice outside a courtroom setting. And in Holder v. Humanitarian Law Project (2010) the Supreme Court “unanimously concluded [that] the giving of expert advice was speech, not conduct.”
Judge Crotty further found that such speech is no less protected by the First Amendment for being “professional” speech. The Supreme Court held in Holder that “the mere fact that speech ‘derives from specialized knowledge’ does not remove it from the First Amendment’s ambit” (cleaned up). And more recently, the Supreme Court noted in NIFLA v. Becerra (2018) that states do not have “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” Based on these precedents, as well as American legal history, Judge Crotty concluded that “courts today cannot treat pure legal advice as a sui generis category of speech that is immune to constitutional scrutiny.”
Because New York’s UPL law regulated Upsolve’s pure speech solely on the basis of what its volunteers wanted to say, Judge Crotty applied the highest level of First Amendment scrutiny. And in evaluating whether New York’s justifications for the UPL restrictions met that high bar, Judge Crotty correctly examined the law not “in the abstract” but rather “in the context of [Upsolve’s] specific, narrow mission.” And in that context, Judge Crotty recognized that Upsolve had presciently “anticipated many of the State’s consumer protection concerns and erected preventative limits” on what its volunteers may do. By designing its own limitations on its volunteers, Upsolve successfully created a set of regulations more narrowly tailored to the goals of its own program than the state’s blanket ban.
In examining each potential concern raised by New York, Judge Crotty found that Upsolve’s own training and guidelines sufficiently addressed these considerations. Thus finding that a total ban on Upsolve’s program cannot be justified under strict First Amendment scrutiny, Judge Crotty put in place a preliminary injunction protecting Upsolve’s volunteers from fear of prosecution under New York’s UPL law. That means that Upsolve can now finally begin the vitally important work of providing its desperately needed aid.
This decision is the first of its kind in First Amendment law, and much of the credit for that success goes to Upsolve’s careful and thoughtful planning of its program. What this decision demonstrates is that the way to challenge overbroad professional regulations is to show the courts that one’s own self‐regulations draw a better line than the state’s. There is of course a role to play for states in protecting consumers, but all too often those rules do not account for new and innovative nonprofits or business models. Legal aid organizations in other states can look to Upsolve as a model not only for the services it now provides, but also for its successful legal strategy to make those services a reality.