Upsolve, Inc. et al v. James

Filing 29

MEMORANDUM OF LAW in Support re: 27 MOTION to File Amicus Brief . . Document filed by National Center for Access to Justice..(Udell, David)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UPSOLVE, INC. and REV. JOHN UDO-OKON,
Plaintiffs,
-v-

Case No. 22-cv-00627 (PAC)

LETITIA JAMES, in her official capacity
as Attorney General of the State of New York,
Defendant.

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MEMORANDUM OF LAW IN SUPPORT OF MOTION OF THE NATIONAL CENTER
FOR ACCESS TO JUSTICE FOR LEAVE TO FILE AMICUS CURIAE BRIEF
IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
The National Center for Access to Justice at Fordham University School of Law
(“NCAJ”), a non-profit, non-partisan institution dedicated to increasing access to justice in
America, has a special interest in this litigation and is able to offer its unique perspective to the
Court.
ARGUMENT
District courts have discretion whether to grant leave to file an amicus brief. Jin v.
Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008); see also Stuart v. Huff, 706 F.3d
345, 355 (4th Cir. 2013) (noting that non-parties have the option to file amicus briefs in district
court proceedings and that such amici “often make useful contributions to litigation”).

There is no Federal Rule of Civil Procedure that applies to motions for leave to appear as
amicus curiae in district court, so district courts exercising this discretion often look for
guidance to Federal Rule of Appellate Procedure 29, which applies to amicus briefs in federal
appellate cases. See, e.g., Am. Humanist Ass’n v. Md.- Nat’l Capital Park & Planning Comm’n,
147 F. Supp. 3d 373, 389 (D. Md. 2015). Rule 29 provides that prospective amici must file along
with the proposed brief, a motion that states “the movant’s interest” and “the reason why an
amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.”
Fed. R. App. Proc. 29(a)(3).
I.

INTEREST OF THE NCAJ
NCAJ is a non-profit organization that brings rigorous research and analysis to the task of

expanding access to justice in America. We work to secure access to justice: the basic freedom
of people to learn about their rights, assert their legal claims and defenses, obtain a fair resolution
under the rule of law, and enforce the result. We have studied and long supported the importance
of making counsel available to those who cannot afford it when fundamental rights are at stake.
We have also studied and support alternate means for providing some measure of access when,
as is all too often the case, counsel is unavailable.
Our flagship project, the Justice Index, https://ncaj.org/state-rankings/2021/justice-index,
analyzes and ranks states on their adoption of select best policies for assuring access to justice.
We use the Justice Index to advocate that governments throughout the country establish these
policies in order to make access to justice a reality for people with low incomes. For example,
the Justice Index reports each state’s count of civil legal aid lawyers, and identifies a set of best
policies for “civil right to counsel laws” and for providing pro bono legal services. Recognizing
that more civil legal aid lawyers are needed and that the aspiration for a broad civil right to

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counsel is not yet a reality, NCAJ also supports the freedom of people to obtain basic civil legal
advice from individuals other than lawyers: in reports and testimony NCAJ has encouraged a
substantial rethinking of the scope and application of unauthorized practice of law (UPL) laws to
ensure that these laws do not prevent individuals from obtaining the basic legal advice they need
to protect their legal rights. See https://ncaj.org/tools-for-justice/legal-empowerment.
To promote access to justice, NCAJ advocates for policies such as instructing judges and
clerks to educate civil litigants about their rights, requiring use of plain language in courts,
assuring quality interpreting and translating services, providing notice of the right to
accommodations for disabilities, and deploying innovative technologies like e-filing. To that end,
NCAJ collects, analyzes and publishes data, researches and writes reports, convenes experts
across the field, and engages with reformers and regulators, including through formal comment
on proposed regulatory and legislative reform.
II.

THE MATTERS ASSERTED IN THE AMICUS BRIEF ARE USEFUL AND
RELEVANT TO THE COURT’S REVIEW
NCAJ submits its proposed brief as amicus curiae to offer its perspective as an

organization dedicated to promoting access to justice for low-income communities. In that
capacity, NCAJ recognizes that Plaintiff Upsolve’s approach – which would train nonlawyer
professionals to provide legal advice to community members being pursued by debt collectors –
addresses the urgent needs of communities whose concerns are at the heart of NCAJ’s mission.
NCAJ’s research shows that librarians, social workers, and other social services professionals are
commonly approached by community members with limited legal questions but must turn those
individuals and their questions away because of the UPL laws. New York’s UPL laws currently
forbid – and would criminalize – Rev. Udo-Okon’s potential conversations with community

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members about their debt collection proceedings and would do so despite the training and
instruction from AJM to assure competent advice.
NCAJ’s proposed amicus brief explains that the UPL laws thereby infringe the First
Amendment rights not only of Plaintiffs Upsolve and Rev. Udo-Okon, but also of their
community members and thousands of other New Yorkers who find themselves similarly
pursued in consumer litigation. These debt collection defendants, whose financial survival is
often at stake, have a pressing need for the basic legal advice Plaintiffs would provide to help
respond to their debt collection claims, many of which are invalid or inflated. New York’s UPL
laws interfere with the provision and the receipt of this advice and are not narrowly tailored to
promote a compelling state objective. By leaving these defendants entirely uncounseled, the UPL
laws harm the very consumer interests those laws are supposed to protect. (The full substance of
NCAJ’s observations and arguments are set forth in the proposed Amicus brief attached as
Exhibit 3 to the Declaration of David Udell filed herewith.)
CONCLUSION
For the foregoing reasons, the NCAJ respectfully asks that this Court grant the Motion
for Leave to File Amicus Curiae Brief.
Dated: March 1, 2022
Respectfully submitted,
/s/David S. Udell
David Udell (4762)
National Center for Access to Justice
150 West 62nd Street
New York, NY 10023
[e-mail]

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/s/Bruce A. Green
Bruce A. Green
Louis Stein Center for Law and Ethics
150 West 62nd Street
New York, NY 10023
[e-mail]

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