Upsolve, Inc. et al v. James

Filing 34

MOTION to File Amicus Brief . Document filed by Law Professors. (Attachments: # 1 Exhibit Exhibit A - Brief of Amici Curiae, # 2 Text of Proposed Order).(St. John, Richard)

EXHIBIT A

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

Case No. 1:22-cv-00627-PAC

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

BRIEF OF AMICI CURIAE LAW PROFESSORS WHO STUDY
ACCESS TO JUSTICE AND REGULATION OF THE LEGAL PROFESSION
IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Richard C. St. John
Munger, Tolles & Olson LLP
350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071
Telephone: [phone]
Fax: [phone]
David H. Fry (pro hac vice pending)
Andrew T. Nguyen (pro hac vice pending)
Munger, Tolles & Olson LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105
Telephone: [phone]
Fax: [phone]
Attorneys for Amici Curiae
Law Professors
March 2, 2022

TABLE OF CONTENTS
Page
I. 

INTEREST OF AMICI CURIAE .........................................................................................1 

II. 

INTRODUCTION AND SUMMARY OF THE ARGUMENT .........................................1 

III. 

ARGUMENT .......................................................................................................................2 

IV. 

A. 

New York law prohibits nonlawyers from providing individualized legal
advice, even when the advice is simple and free. ....................................................2 

B. 

Plaintiffs’ program would constitute the unauthorized practice of law and
could expose Plaintiffs to criminal prosecution. ......................................................4 

C. 

Exposure to criminal prosecution prevents Plaintiffs from offering legal
advice and serves as a systemic barrier to accessing justice, even absent
formal enforcement. .................................................................................................5 

CONCLUSION ....................................................................................................................8 

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TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
In re Nat’l Legal Prof’l Assocs. (NLPA),
No. 1:08-MC-101, 2010 WL 624045 (N.D.N.Y. Feb. 18, 2010) ..............................................2
STATE CASES
Carter v. Flaherty,
37 Misc. 3d 46 (N.Y. App. Term 2012).....................................................................................2
El Gemayel v. Seaman,
533 N.E.2d 245 (N.Y. 1988) ......................................................................................................2
Fla. Bar v. TIKD Servs. LLC,
326 So. 3d 1073 (Fla. 2021).......................................................................................................6
Matter of N.Y. Cnty. Lawyers Ass’n v. Dacey,
28 A.D.2d 161 (N.Y. App. Div.) ...............................................................................................3
People v. Alfani,
125 N.E. 671 (N.Y. 1919) ..........................................................................................................2
Matter of Rowe,
604 N.E.2d 728 (N.Y. 1992) ......................................................................................................3
Spiegel v. Ahearn,
No. 101251/2016, 2018 WL 4743366 (N.Y. Sup. Ct. Oct. 2, 2018) .........................................3
Spivak v. Sachs,
211 N.E.2d 329 (N.Y. 1965) ......................................................................................................2
State v Winder,
42 A.D.2d 1039 (N.Y. App. Div. 1973) ....................................................................................3
Sussman v Grado,
746 N.Y.S.2d 548 (N.Y. Dist. Ct. 2002) ....................................................................................3
STATUTES - OTHER
N.Y. Jud. Law §§ 476-a, 478, 484, 485, 485-a, 750, 753 ................................................................2
N.Y. Jud. Law § 485 ........................................................................................................................5
N.Y. Jud. Law § 485-a .....................................................................................................................5

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TABLE OF AUTHORITIES
(Continued)
Page(s)
N.Y. Penal Law § 20.00 ...............................................................................................................2, 5
CONSTITUTIONAL PROVISIONS
First Amendment .....................................................................................................................1, 7, 8
OTHER AUTHORITIES
Benjamin H. Barton, The Lawyers’ Monopoly—What Goes and What Stays, 82
Fordham L. Rev. 3067, 3089 (2014)..........................................................................................7
Brief of LegalZoom.com, Inc. et al. as Amici Curiae in Support of Respondent,
N.C. State Bd. of Dental Exam’rs v. F.T.C.,
No. 13-534, 2014 WL 3895926, at *20 (U.S. Aug. 6, 2014).....................................................7
Deborah L. Rhode & Lucy Buford Ricca, Protecting the Profession or the
Public? Rethinking Unauthorized-Practice Enforcement, 82 Fordham L. Rev.
2587, 2604 (2014) ......................................................................................................................6
Elizabeth Chambliss, Evidence-Based Lawyer Regulation, 97 Wash. U. L. Rev.
297, 321 (2019) ..........................................................................................................................6
Gillian K. Hadfield & Deborah L. Rhode, How to Regulate Legal Services to
Promote Access, Innovation, and the Quality of Lawyering, 67 Hastings L.J.
1191, 1217 n. 88 (2016) .............................................................................................................7
Leslie C. Levin, The Monopoly Myth and Other Tales About the Superiority of
Lawyers, 82 Fordham L. Rev. 2611, 2615 (2014) .....................................................................6
National Center for Access to Justice, “Unauthorized Practice of Law”
Enforcement in California: Protection or Protectionism? 3-4 (2022) ......................................6
National Center for Access to Justice, “Working with Your Hands Tied Behind
Your Back”: Non-Lawyer Perspectives on Legal Empowerment 12–14 (2021) .......................7
Renee Newman Knake, Democratizing the Delivery of Legal Services, 73 Ohio
St. L.J. 1, 8, 10–11 (2012) .........................................................................................................7

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I.

INTEREST OF AMICI CURIAE
Amici curiae are law professors who research and write about access to justice and the

regulation of the legal profession. They share a common interest in improving access to legal
assistance for low- and moderate-income people facing debt collection actions. Amici are
especially interested in this case because it presents an important question about whether laws
prohibiting the “unauthorized practice of law” infringe upon nonlawyers’ political expression
and collective activity to obtain meaningful access to the courts. A full list of amici is attached as
Appendix A.
II.

INTRODUCTION AND SUMMARY OF THE ARGUMENT
This lawsuit squarely presents justiciable First Amendment questions because Plaintiffs’

intended conduct could expose them to criminal prosecution under New York’s rules governing
the unauthorized practice of law. New York law prohibits nonlawyers from engaging in the
practice of law even when it is plain that they are not members of the bar. The definition of the
“practice of law” is broad, including not only courtroom advocacy and the drafting of legal
documents but also the provision of “legal advice,” which means advice about how to respond to
a specific legal problem based on a particular set of facts. Plaintiffs’ intended conduct would
violate these rules because Plaintiffs seek to train nonlawyers to provide individualized advice
about whether and how to respond to a debt collection lawsuit or to serve as a nonlawyer adviser
to provide such advice. Under the New York framework, such advice constitutes “legal advice”
even when it is free and simple. Indeed, under this standard, nonlawyers likely give casual “legal
advice” to friends and neighbors on a regular basis without even knowing it.
In the view of amici, this statutory scheme raises justiciable First Amendment questions.
The threat of enforcement against individuals and organizations like Plaintiffs, coupled with the
breadth of prohibited activity, creates a chilling effect that paralyzes civil rights organizations

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seeking to assist low- and moderate- income people facing debt collection actions, thereby
serving as a systemic barrier to their ability to obtain meaningful access to the courts.
III.

ARGUMENT
A.

New York law prohibits nonlawyers from providing individualized legal
advice, even when the advice is simple and free.

New York law prohibits nonlawyers from engaging in the unauthorized “practice of law.”
See N.Y. Jud. Law §§ 476-a, 478, 484, 485, 485-a, 750, 753 (proscribing the unauthorized
practice of law and providing for the enforcement of this prohibition); see also N.Y. Penal Law
§ 20.00 (imposing criminal liability for “solicit[ing], request[ing] . . . or intentionally aid[ing]” in
unlawful conduct).
“It has long been the law in New York that the practice of law includes giving legal
advice.” In re Nat’l Legal Prof’l Assocs. (NLPA), No. 1:08-MC-101 (NAM/DRH), 2010 WL
624045, at *15 (N.D.N.Y. Feb. 18, 2010); see also Carter v. Flaherty, 37 Misc. 3d 46, 48 (N.Y.
App. Term 2012) (“A person is practicing law when he or she gives legal advice”); El Gemayel
v. Seaman, 533 N.E.2d 245, 248 (N.Y. 1988) (“The ‘practice’ of law reserved to duly licensed
New York attorneys includes the rendering of legal advice . . . .”); Spivak v. Sachs, 211 N.E.2d
329, 330 (N.Y. 1965) (noting that “the practice of law” in New York “includes legal advice and
counsel”); People v. Alfani, 125 N.E. 671, 673 (N.Y. 1919) (observing that the practice of law
includes “all advice to clients and all action taken for them in matters connected with the law”).
“Legal advice” means the provision of individualized advice based on the facts of a client’s case.
See El Gemayel, 72 N.Y.2d at 706.
Courts have distinguished such advice from providing legal information or education to a
general audience. For instance, New York courts have held that publishing a book about how to
avoid probate, or an article about the legal rights of psychiatric patients, are not “the practice of

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law” because they do not involve individualized advice to a particular client. See Matter of N.Y.
Cnty. Lawyers Ass’n v. Dacey, 28 A.D.2d 161, 174 (N.Y. App. Div.) (Stevens, J., dissenting)
(book was not the practice of law because there was “no personal contact or relationship with a
particular individual”), rev’d on dissenting opinion, 234 N.E.2d 459 (N.Y. 1967); Matter of
Rowe, 604 N.E.2d 728, 731 (N.Y. 1992) (similar for article).
In contrast, courts have taken the broad view that providing any individualized advice of
a legal nature, even if the advice is informal, amounts to the practice of law. In Sussman v
Grado, 746 N.Y.S.2d 548, 552–53 (N.Y. Dist. Ct. 2002), for example, the court held that a
paralegal who used independent judgment to help a client fill out a form, without the supervision
of an attorney, had engaged in the unauthorized practice of law. By giving advice on a specific
problem, the paralegal “crossed the line between filling out forms and engaging in the practice of
law.” Id. at 552. Similarly, in State v Winder, 42 A.D.2d 1039, 1040 (N.Y. App. Div. 1973), the
court held that even though the sale of a do-it-yourself divorce kit with forms and instructions
was not itself the practice of law, providing advice particular to the purchaser’s case was. And, in
Spiegel v. Ahearn, No. 101251/2016, 2018 WL 4743366, at *4 (N.Y. Sup. Ct. Oct. 2, 2018), the
court held that a nonlawyer had engaged in the unauthorized practice of law “by discussing
Defendants’ legal problems with them and advising them what they needed to do to resolve those
problems.”
In short, providing individualized advice about how to address a specific legal problem
constitutes “legal advice” under New York’s unauthorized practice of law rules, without regard
to how narrow or straightforward the advice is, or whether it is free.

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B.

Plaintiffs’ program would constitute the unauthorized practice of law and
could expose Plaintiffs to criminal prosecution.

Based on amici’s understanding of Plaintiffs’ “Justice Advocates” program, Plaintiffs’
intended conduct constitutes the provision of legal advice under New York law. As the
Complaint explains, Plaintiffs seek to train nonlawyer Justice Advocates, or to serve as a
nonlawyer Justice Advocate, to provide individualized advice to clients about whether and how
to respond to a debt collection lawsuit based on the specific facts of the client’s case. See
Complaint, ECF No. 1, ¶¶ 55–87; see also AJM Justice Advocate Training Guide (“Training
Guide”), Complaint, Ex. B., ECF No. 1-2. Specifically, Plaintiffs would train Justice Advocates
to meet with individual clients to:
(1) determine whether the client could benefit from their advice; (2) confirm the
limited scope of representation with the client; (3) advise the client whether it is in
their best interest to answer the lawsuit against them; (4) advise the client on how
to fill out the answer based on the client’s answers to a series of straightforward
questions; and (5) advise the client on how and where to file and serve the answer.
Complaint, ECF No. 1, ¶ 62.
Plaintiffs’ Training Guide includes specific guidance for Justice Advocates about how to
fill out each section of New York’s answer form for debt collection defendants (see Complaint,
Ex. A, ECF No. 1-1), including guidance about the required elements of possible legal defenses.
See Training Guide, Complaint, Ex. B., ECF No. 1-2, at 6–11. If it is unclear whether an
individual client is entitled to assert a particular defense, the Training Guide instructs Justice
Advocates to apply their “best judgment” based on the information that the client provides, to
“err on the side of telling the client to check the box to make sure they don’t lose the opportunity
to raise that defense,” and to “advise the client to determine whether they have any documents or
other information they can use to back up their claim.” Training Guide, Complaint, Ex. B, at 6.

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By providing such individualized advice about whether and how to respond to a debt
collection action, Plaintiffs would violate New York’s prohibition on the unauthorized practice
of law, exposing Plaintiffs to criminal prosecution. See N.Y. Jud. Law § 485 (making the
unauthorized practice of law a misdemeanor); N.Y. Jud. Law § 485-a (making some types of
violations a class E felony); see also N.Y. Penal Law § 20.00 (imposing criminal liability for
“solicit[ing], request[ing] . . . or intentionally aid[ing]” in unlawful conduct). The experts who
reviewed and endorsed the Training Guide also could be prosecuted for assisting in the
unauthorized practice of law if they were viewed as endorsing the unauthorized practice of law
by Plaintiffs. Unsurprisingly, those experts have expressly distanced themselves from statements
in the Training Guide suggesting that Justice Advocates in Plaintiffs’ program may or will
provide legal advice. See Declaration of Tashi Lhewa, ECF No. 7-5, ¶ 10 (“To the extent that the
Training Guide and attached exhibits include statements that the Justice Advocate may provide
or is or will be providing ‘legal advice,’ I do not endorse such statements.”); Declaration of
Pamela Foohey, ECF No. 7-6, ¶ 11 (“In part because I want to avoid any possibility of liability
under rules governing the unauthorized practice of law, my review of and endorsement of the
Training Guide is limited to the accuracy of the substantive information about asserting
affirmative defenses in responding to debt collection lawsuits. To be clear: I do not endorse any
statements in the Training Guide and attached exhibits that the Justice Advocate may provide or
is or will be providing legal advice.”).
C.

Exposure to criminal prosecution prevents Plaintiffs from offering legal
advice and serves as a systemic barrier to accessing justice, even absent
formal enforcement.

One might speculate that Plaintiffs are not likely to be criminally prosecuted for the
unauthorized practice of law under these specific circumstances. The justifications for
prosecution are strongest where providers misrepresent their credentials or there is risk of serious

5

harm to consumers—neither of which is an issue in the carefully tailored program that Plaintiffs
have designed.
But courts have not limited the unauthorized practice of law doctrine to cases involving
misrepresentation or the risk of consumer harm. A 2014 national survey of unauthorized practice
of law enforcement found that, in 75 percent of cases involving nonlawyer providers, courts did
not even consider the issue of consumer harm. See Deborah L. Rhode & Lucy Buford Ricca,
Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement, 82
Fordham L. Rev. 2587, 2604 (2014); see also Elizabeth Chambliss, Evidence-Based Lawyer
Regulation, 97 Wash. U. L. Rev. 297, 321 (2019) (arguing that “existing research does not
support the breadth of lawyers’ monopoly” over basic legal assistance); Leslie C. Levin, The
Monopoly Myth and Other Tales About the Superiority of Lawyers, 82 Fordham L. Rev. 2611,
2615 (2014) (“[T]here is little evidence that lawyers are more effective at providing certain legal
services or more ethical than qualified nonlawyers[.]”). In the for-profit context, courts have
endorsed vigorous enforcement against (even defunct) nonlawyer providers, explicitly
repudiating the need to produce evidence of actual consumer harm. See, e.g., Fla. Bar v. TIKD
Servs. LLC, 326 So. 3d 1073, 1082 (Fla. 2021) (“There is . . . no requirement in cases involving
the unlicensed or unauthorized practice of law that the Bar produce evidence of actual harm to
the public . . . .”).
Regulators also use the threat of enforcement to shut down legal assistance by
nonlawyers. For example, regulators have opened investigations and issued cease-and-desist
letters that are not accessible to the public. See National Center for Access to Justice,
“Unauthorized Practice of Law” Enforcement in California: Protection or Protectionism? 3-4
(2022) (discussing the use of cease-and-desist letters against nonlawyer providers in California);

6

Gillian K. Hadfield & Deborah L. Rhode, How to Regulate Legal Services to Promote Access,
Innovation, and the Quality of Lawyering, 67 Hastings L.J. 1191, 1217 n.88 (2016) (“[M]ost
regulatory oversight and intervention is carried out by bar committees composed entirely of
practicing attorneys who open investigations and send out warnings or cease and desist letters
without state court oversight . . . .”). These methods of regulation, which avoid judicial scrutiny,
can be strategic in that they allow regulators to evade political and legal accountability for
regulation. See, e.g., Brief of LegalZoom.com, Inc. et al. as Amici Curiae in Support of
Respondent, N.C. State Bd. of Dental Exam’rs v. F.T.C., No. 13-534, 2014 WL 3895926, at *20
(U.S. Aug. 6, 2014) (describing the North Carolina bar’s informal efforts to regulate LegalZoom
and noting that the “bar took no direct enforcement action for five years, avoiding judicial review
of its action”); see also Benjamin H. Barton, The Lawyers’ Monopoly—What Goes and What
Stays, 82 Fordham L. Rev. 3067, 3089 (2014) (noting that “truly aggressive [enforcement] would
be likely to draw federal antitrust and congressional attention”); Renee Newman Knake,
Democratizing the Delivery of Legal Services, 73 Ohio St. L.J. 1, 8, 10–11 (2012) (arguing that
current restrictions on nonlawyer assistance are vulnerable to First Amendment challenges).
The mere threat of enforcement can be enough to deter many nonlawyers from engaging
in conduct that might be construed as the unauthorized practice of law. See, e.g., National Center
for Access to Justice, “Working with Your Hands Tied Behind Your Back”: Non-Lawyer
Perspectives on Legal Empowerment 12–14 (2021) (discussing nonlawyers’ frustration and “fear
of being ‘shut down’ or otherwise sanctioned for providing unauthorized legal advice”). Thus,
while regulators in practice may avoid politically and legally provocative formal action—such as
the prosecution of trained, nonprofit providers in an area of desperate, widespread legal need—
the threat of enforcement, coupled with the breadth of prohibited activity, effectively paralyzes

7

potential providers and the community and civil rights organizations seeking to assist them in
expanding public access to basic legal advice. This chilling effect serves as a systemic barrier to
civil access to justice and to collective activity that would allow low- and moderate- income
individuals to obtain meaningful access to the courts.
IV.

CONCLUSION
Plaintiffs’ proposed activity exposes Plaintiffs to criminal penalties under New York’s

unauthorized practice of law rules. Even this mere possibility of criminal prosecution precludes
any lawful effort to test the de facto boundaries of enforcement. Consequently, this lawsuit
squarely raises justiciable First Amendment questions, especially where the enforcement of laws
prohibiting the unauthorized practice of law would infringe upon nonlawyers’ political
expression and collective activity to help underserved groups obtain meaningful access to the
courts.

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DATED:

March 2, 2022

Respectfully submitted,

By: /s/ Richard C. St. John
Richard C. St. John
[e-mail]
Munger, Tolles & Olson LLP
350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071
Telephone [phone]
Fax
[phone]
David H. Fry (pro hac vice pending)
[e-mail]
Andrew T. Nguyen (pro hac vice pending)
[e-mail]
Munger, Tolles & Olson LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105
Telephone [phone]
Fax
[phone]
Attorneys for Amici Curiae
Law Professors (named in Appendix A)

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APPENDIX A1
Richard L. Abel, Connell Distinguished Professor of Law Emeritus and Distinguished Research
Professor, UCLA School of Law
Benjamin Barton, Helen and Charles Lockett Distinguished Professor of Law, University of
Tennessee College of Law
Raymond Brescia, Hon. Harold R. Tyler Chair in Law and Technology, Albany Law School
Anna Carpenter, Professor of Law, S.J. Quinney College of Law
Elizabeth Chambliss, Henry Harman Edens Professor of Law, University of South Carolina
School of Law
Benjamin P. Cooper, Frank Montague, Jr. Professor of Legal Studies and Professionalism,
University of Mississippi School of Law
Scott Cummings, Robert Henigson Professor of Legal Ethics, UCLA School of Law
Nora Freeman Engstrom, Ernest W. McFarland Professor of Law, Stanford Law School
D. James Greiner, The Honorable S. William Green Professor of Public Law, Harvard Law
School
Gillian Hadfield, Schwartz Reisman Chair in Technology and Society, University of Toronto
Faculty of Law
William D. Henderson, Professor and Stephen F. Burns Chair on the Legal Profession, Indiana
University Maurer School of Law
Sung Hui Kim, Professor of Law, UCLA School of Law
Renee Knake Jefferson, Professor of Law and the Joanne and Larry Doherty Chair in Legal
Ethics, University of Houston Law Center
David Luban, Professor of Law, Georgetown University Law Center
Peter S. Margulies, Professor of Law, Roger Williams University School of Law
Martha Minow, 300th Anniversary University Professor, Harvard University

1

Amici sign this brief on their own behalf, not on behalf of the institutions with which they are
affiliated. Institutional affiliations are provided for identification purposes only. Amici are listed
in alphabetical order by last name.

10

Russell G. Pearce, Professor of Law and Edward & Marilyn Bellet Chair in Legal Ethics,
Morality, and Religion, Fordham University School of Law
Victor D. Quintanilla, Professor of Law and Van Nolan Faculty Fellow, Indiana University
Maurer School of Law
Daniel B. Rodriguez, Harold Washington Professor, Northwestern University Pritzker School of
Law
Tanina Rostain, Professor of Law, Georgetown University Law Center
Colleen F. Shanahan, Clinical Professor of Law, Columbia Law School
Abbe Smith, Scott K. Ginsburg Professor of Law, Georgetown University Law Center
Lauren Sudeall, Associate Professor and Faculty Director, Center for Access to Justice, Georgia
State University College of Law
Eli Wald, Charles W. Delaney Jr. Professor of Law, University of Denver Sturm College of Law
W. Bradley Wendel, Edwin H. Woodruff Professor of Law, Cornell Law School

11