On May 24, 2022, a New York federal district court issued a preliminary injunction banning the Attorney General from enforcing the unauthorized practice of law rules against non-lawyers who seek to provide legal advice. See Upsolve Inc. v. Letitia James, No. 22-cv-627 (PAC) (S.D.N.Y. May 24, 2022). The injunction is in place for the pendency of the Upsolve litigation. Id. at 32.
Like most states, New York makes it civilly and criminally punishable for someone who is not admitted to a State Bar Association to engage in the “unlawful practice of law.” See N.Y. Jud. Law §§ 476-a, 478, 484, 485. The non-profit Upsolve, however, created a program which seeks to train non-lawyers volunteers to give legal advice to low-income New Yorkers who face debt collection actions. The Upsolve volunteers would confine the legal advice to whether and how to respond to a debt collection lawsuit. In doing so, the non-lawyer volunteers would be “practicing law” in New York in violation of the UPL rule. Upsol, however, persisted. For this reason, Upsolve asked the court to intervene and rule that the enforcement of the UPL laws as to Upsolve’s activities violated their First Amendment rights.
The court found:
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.
As a result, the court enjoined the AG from enforcing the UPL rules against Upsolve to the extent that the volunteers offer legal advice without a license to do so. Id. at 32.
Both lawyers and non-lawyers are likely to have strong opinions about the Upsolve ruling. On the one hand, any form of non-lawyer advice could undermine the legal profession. You would not want an unlicensed doctor operating on a loved one. Likewise, the risks and damage caused by an unlicensed lawyer trying to practice law could be devastating. On the other hand, the Upsolve decision is a huge win for the access to justice initiative. Non-lawyer volunteers in New York will be able to guide and coordinate resources to broaden access to civil justice for all litigants. Most would say that providing access to the court system for people who do not always have the financial resources to afford that access is a good initiative. Either way, one thing is clear: at least in New York, lawyers need to make some room for the non-lawyer advisors.
