Upsolve, Inc. et al v. James

Filing 58

MEMORANDUM OF LAW in Opposition re: 5 MOTION for Preliminary Injunction . . Document filed by Letitia James..(Lawson, Matthew)

Case 1:22-cv-00627-PAC Document 58 Filed 04/15/22 Page 1 of 26

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

22-CV-00627 (PAC) (SLC)

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

DEFENDANT LETITIA JAMES’ MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

LETITIA JAMES
Attorney General
State of New York
28 Liberty Street
New York, NY 10005
Tel: [phone]

MATTHEW J. LAWSON
Assistant Attorney General
Of Counsel

Case 1:22-cv-00627-PAC Document 58 Filed 04/15/22 Page 2 of 26

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........................................................................................................................ iii
PRELIMINARY STATEMENT .................................................................................................................... 1
STATEMENT OF FACTS ........................................................................................................................... 2
ARGUMENT..................................................................................................................................................... 3
I.

PLAINTIFFS CANNOT SHOW THEY ARE
LIKELY TO SUCCEED ON THE MERITS................................................................................. 4
A.

Plaintiffs Lack Standing to Sue ...................................................................................................... 4

B.

There Is No First Amendment Right to Give Unlicensed Legal Advice ................................ 5

C.

The Cases Plaintiffs Rely Upon Do Not Address Whether
Unlicensed Laypersons Have a First Amendment Right to Practice Law .............................. 8

D.

The Unauthorized Practice Statutes
Easily Pass Muster Under the Rational Basis Standard ...........................................................11

E.
II.

1.

If the Court Concludes that a Tiers of Scrutiny
Analysis Is Required, It Should Apply the
Rational Basis Standard—and Not Strict Scrutiny .........................................................11

2.

The Challenged Statutes are Rationally Related to
the State’s Legitimate Interest in Protecting the Public .................................................14

In the Alternative, the Unauthorized Practice Statutes
Would Also Withstand Intermediate Scrutiny ..........................................................................14

PLAINTIFFS CANNOT SHOW THAT THE
REQUESTED INJUNCTION IS IN THE PUBLIC INTEREST ........................................15
A.

Allowing Unidentified, Unlicensed, and Unvetted Persons
to Give Legal Advice Would Harm the Interests of New Yorkers .......................................15

B.

The Relief Requested Here Would Usurp
the Legislature’s Role, Create Confusion in Law,
And Result in Inconsistent Rulings ............................................................................................17

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C.

Plaintiffs’ Arguments About the Alleged
Public Need for an Injunction Are Unpersuasive ....................................................................18

CONCLUSION ...............................................................................................................................................20

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TABLE OF AUTHORITIES
Federal Cases

Page(s)

Adam v. Barr,
792 F. App’x 20 (2d Cir. 2019) ............................................................................................................ 4, 5
Adams v. Am. Bar Ass’n,
400 F. Supp. 219 (E.D. Pa. 1975) ................................................................................................. 7, 9, 14
Brotherhood of R.R. Trainmen v. Virginia ex rel. Va. State Bar,
377 U.S. 1 (1964) ...................................................................................................................................... 10
Campbell v. Greisberger,
865 F. Supp. 115 (W.D.N.Y. 1994) ....................................................................................................... 16
Capital Associated Industries, Inc. v. Stein,
922 F.3d 198 (4th Cir. 2019) ...............................................................................................10, 11, 14, 15
Capital Associated Industries, Inc. v. Stein,
283 F. Supp. 3d 374 (M.D.N.C. 2017) .................................................................................................. 11
Cayuga Nation v. Tanner,
824 F.3d 321 (2d Cir. 2016) ...................................................................................................................... 5
Chicago, B. & Q.R. Co. v. McGuire,
219 U.S. 549 (1911) .................................................................................................................................. 17
Colindres v. Battle,
No. 1:15-CV-2843, 2016 WL 4258930 (N.D. Ga. June 6, 2016) ...................................................... 12
In re Douglas,
304 B.R. 223 (Bankr. D. Md. 2003) ......................................................................................................... 7
Elansari v. State of Montana,
No. CV 21-57-H, 2021 WL 5534930 (D. Mont. Oct. 6, 2021) ........................................................... 6
Goldfarb v. Virginia State Bar,
421 U.S. 773 (1975) ........................................................................................................................... 14, 15
Jacoby & Meyers, LLP v. Presiding Justices of First, Second, Third, and Fourth Dep’t,
852 F.3d 178 (2d Cir. 2017) ............................................................................................................. 10, 13
Knife Rts., Inc. v. Vance,
802 F.3d 377 (2d Cir. 2015) ................................................................................................................... 5
L&M Bus Corp. v. Bd. of Educ. of City Sch. Dist. of City of N.Y.,
No. 18-CV-1902, 2018 WL 2390125 (E.D.N.Y. May 25, 2018) ......................................................... 3
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Lawline v. Am. Bar Ass’n,
956 F.2d 1378 (7th Cir. 1992) ................................................................................................................ 11
Lowe v. S.E.C.,
472 U.S. 181(1985) ..................................................................................................................................... 6
McDermott v. Langevin,
587 B.R. 173 (Bankr. N.D. Ga. 2018) ..................................................................................................... 7
Monroe v. Horwitch,
820 F. Supp. 682 (D. Conn. 1993) ................................................................................................ 6, 3, 14
NAACP v. Button,
371 U.S. 415 (1963) ..............................................................................................................................9, 10
Nat’l Inst. of Fam. & Life Advocs. v. Becerra,
138 S. Ct. 2361 (2018) ...................................................................................................................... 12, 13
In re New Hampshire Disabilities Rights Center, Inc.,
130 N.H. 328, 541 A.2d 208 (1988) ...................................................................................................... 11
Nken v. Holder,
556 U.S. 418 (2009) .................................................................................................................................... 3
Ohralik v. Ohio State Bar Ass’n,
436 U.S. 447(1978) ................................................................................................................................. 5, 6
In re Primus,
436 U.S. 412 (1978) .................................................................................................................................... 9
Sperry v. State of Fla. ex rel. Fla. Bar,
373 U.S. 379 (1963) .................................................................................................................................. 14
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) ................................................................................................................................ 4, 5
Tang v. App. Div. of New York Supreme Ct., First Dep’t,
373 F. Supp. 800 (S.D.N.Y. 1972) ......................................................................................................... 16
Turner v. Am. Bar Ass’n,
407 F. Supp. 451 (N.D. Tex. 1975) .............................................................................................. 6, 9, 10
United Mine Workers, Dist. 12 v. Illinois State Bar Ass’n,
389 U.S. 217 (1967) .................................................................................................................................. 10
United Transp. Union v. State Bar of Mich.,
401 U.S. 576 (1971) .................................................................................................................................. 10

iv

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Winter v. Natural Res. Defense Council, Inc.,
555 U.S. 7 (2008) ...................................................................................................................................3, 15
State Cases
Cincinnati Bar Assn. v. Bailey,
852 N.E.2d 1180 (Ohio 2006) ............................................................................................................8, 14
Drew v. Unauthorized Prac. of L. Comm.,
970 S.W.2d 152 (Tex. Ct. App. 1998) ..................................................................................................... 8
El Gemayel v. Seaman,
72 N.Y.2d 701 (1988) ....................................................................................................................... 14, 15
Florida Bar v. Furman,
376 So. 2d 378 (Fla. 1979) ........................................................................................................................ 8
Howard v. Superior Ct.,
52 Cal. App. 3d 722, 125 Cal. Rptr. 255 (Cal. Ct. App. 1975) ............................................................. 8
Montana Supreme Ct. Comm’n on Unauthorized Prac. of L. v. O’Neil,
147 P.3d 200 (Mont. 2006) ................................................................................................................... 7, 8
Nat’l City Bank v. Kessler,
No. 03AP-312, 2003 WL 22976609 (Ohio Ct. App. 2003) ................................................................. 8
People v. Shell,
148 P.3d 162 (Colo. 2006) ........................................................................................................... 7, 12, 13
State v. Niska,
380 N.W.2d 646 (N.D. 1986) ........................................................................................................ 8, 9, 10
State Statutes
N.Y. Jud. Law § 90(1)(a) ................................................................................................................................ 16
N.Y. Jud. Law § 476-a ....................................................................................................................................... 2
N.Y. Jud. Law § 478 ....................................................................................................................................2, 19
N.Y. Jud. Law § 484 .......................................................................................................................................... 2
N.Y. Jud. Law § 485 .......................................................................................................................................... 2
N.Y. Jud. Law § 750 .......................................................................................................................................... 2
N.Y. Jud. Law § 753 .......................................................................................................................................... 2

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Letitia James, Attorney General of the State of New York, respectfully submits this
memorandum of law in opposition to Plaintiffs’ motion for a preliminary injunction. 1
PRELIMINARY STATEMENT
Plaintiffs’ motion, which seeks an injunction that would allow unlicensed laypersons to give
legal advice to New Yorkers, should be denied. In order to obtain the “extraordinary” remedy of a
preliminary injunction, a plaintiff must show, among other things, that it is likely to succeed on the
merits and that the requested relief would serve the public interest. The Plaintiffs here have done
neither. Far from showing that they are likely to succeed on their claims, Plaintiffs do not even have
standing to sue. To demonstrate standing, Plaintiffs must show that there is a credible threat that
they will be prosecuted for offering the legal advice they intend to provide. They have failed to
make such a showing here.
Plaintiffs’ claims also fail because the First Amendment “right” alleged here does not exist.
The question of whether laypersons have a First Amendment right to practice law without a license
is not a new one. There are numerous federal and state court decisions that address this precise
question, and these cases establish that there is no such right. Plaintiffs do not even acknowledge,
let alone attempt to distinguish, these authorities, and they instead attempt to manufacture the
“right” alleged here based on cases that have nothing to with the practice of law by unlicensed
laypersons. Such efforts are entirely unavailing—and they certainly do not establish that Plaintiffs’
First Amendment claims are likely to succeed.
Plaintiffs’ motion should also be denied because the injunction requested here would be
contrary to the public interest. Plaintiffs largely do not identify the individuals who would give legal
advice to New Yorkers if their motion were to be granted, and the relief requested here would
As used herein, “Complaint” and “Compl.” refer to Plaintiffs’ complaint in this action, dated
January 25, 2022 (ECF 1), and “Pl. Br.” refers to the Memorandum of Law in Support of Plaintiffs’
Motion for a Preliminary Injunction, also dated January 25, 2022 (ECF 6).

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bypass crucial safeguards that ensure the competence and moral fitness of legal practitioners.
Moreover, the State legislature is the body best equipped to debate the competing public policy
concerns implicated by the statutes challenged here—and to consider any proposed exceptions.
Plaintiffs’ proposal to remove the legislature from this policy decision would disserve the public and
violate basic principles of federalism. The new First Amendment “right” Plaintiffs ask this Court to
recognize also lacks clear boundaries, which would lead to uncertainty in the law and create the risk
of inconsistent rulings in future cases.
Plaintiffs’ arguments about the supposed public need for the extraordinary remedy requested
here also miss the mark. The requested injunction would not address the primary concerns
identified by the citizens Plaintiffs consulted, such as harassing debt collection calls and the defaults
that arise when defendants never receive notice that they have been sued. Moreover, the “advice”
contemplated here is already being delivered by nonprofit organizations and law school clinics, and
Plaintiffs have not demonstrated that these existing resources are inadequate.
STATEMENT OF FACTS
New York, like every other state in the country, prohibits persons not admitted to the bar
from engaging in the practice of law. See N.Y. Jud. Law §§ 476-a, 478, 484, 485, 750, 753
(proscribing the unauthorized practice of law and providing for the enforcement of this prohibition).
Plaintiffs Upsolve, Inc. and the Reverend John Udo-Okon object to these statutes, which
they contend have thwarted their plans to launch the “American Justice Movement” (“AJM”)—a
proposed initiative for providing lay legal advice to individuals sued in debt collection lawsuits.
Compl. ¶ 57. As part of this initiative, Plaintiffs seek to recruit an unspecified number of nonlawyer
“Justice Advocates,” including the Reverend Udo-Okon himself, to advise debtor defendants on
how to answer or otherwise respond to the lawsuit against them. Id. ¶¶ 57, 82. Plaintiffs assert that
any such advice will be “strictly limited” to “advising low-income New Yorkers on whether and how
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to fill out and file” New York’s one-page, fill-in-the-blank form Answer for debt collection actions.
Pl. Br. at 1-2; see also Compl. ¶¶ 34-35 & Ex. A.
Plaintiffs contend that New York’s unauthorized practice of law statutes are the “only thing”
preventing them from launching the AJM initiative, Compl. ¶ 88, and they therefore filed the instant
lawsuit, which asserts an as-applied constitutional challenge to the statutes themselves. In particular,
Plaintiffs allege that the unauthorized practice of law statutes violate their rights of free speech and
association under the First Amendment, and they seek both declaratory and injunctive relief (among
other things). Compl. ¶¶ 103-12 & p. 29. Plaintiffs also filed the instant motion, which seeks to
preliminarily enjoin the Attorney General from enforcing New York’s unauthorized practice statutes
against Plaintiffs. For the reasons set forth below, Plaintiffs’ motion should be denied.
ARGUMENT
A “preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.
Natural Res. Defense Council, Inc., 555 U.S. 7, 24 (2008). Plaintiffs bear the burden of establishing (1) that
they are likely to succeed on the merits, (2) that they are likely to suffer irreparable harm in the absence
of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that an injunction is in
the public interest. Winter, 555 U.S. at 20. The final two factors—the balance of the equities and the
public interest—“merge” when the Government is the opposing party.” L&M Bus Corp. v. Bd. of Educ.
of City Sch. Dist. of City of N.Y., No. 18-CV-1902, 2018 WL 2390125, at *13 (E.D.N.Y. May 25, 2018)
(quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).
Plaintiffs cannot satisfy this rigorous standard. Among other issues, Plaintiffs cannot show
they are likely to succeed on the merits, and the equities and public interest factors weigh against
granting injunctive relief.

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I.

PLAINTIFFS CANNOT SHOW THEY ARE LIKELY
TO SUCCEED ON THE MERITS
A. Plaintiffs Lack Standing to Sue
As an initial matter, Plaintiffs cannot succeed on the merits of their legal challenge

because they lack standing to sue. To establish Article III standing, a plaintiff must show (1) an
injury in fact, (2) a sufficient causal connection between the injury and the conduct complained
of, and (3) a likelihood that the injury will be redressed by a favorable decision. Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014). An injury sufficient to satisfy Article III
must be “concrete and particularized” and “actual or imminent,” not “conjectural or hypothetical.”
Id. at 158.
To satisfy the imminence requirement in the pre-enforcement context, a plaintiff must
show that (1) he has “an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute,” and (2) “there exists a credible threat of
prosecution thereunder.” Id. at 159. Plaintiffs fail to meet this standard because the facts pleaded
here do not demonstrate a credible threat of prosecution. Indeed, the only purported facts Plaintiffs
offer are the allegations that (1) they intend to provide legal advice without a law license, see, e.g.,
Compl. ¶ 56; (2) pursuing this course of action would violate existing law, id. ¶ 71; and (3) the
Attorney General’s duties include the enforcement of regulations governing the unauthorized
practice of law. Id. ¶ 14. 2
These allegations are insufficient and do not establish a credible threat of prosecution by the
Attorney General. As the Second Circuit recently held, “the mere existence of a law prohibiting
intended conduct does not automatically confer Article III standing.” Adam v. Barr, 792 F. App’x

Plaintiffs also allege that New York’s unauthorized practice rules are “vigorously enforced,”
Compl. ¶ 91, but they provide no examples and do not identify the enforcement authority (or the
defendant) for any such occasion.
2

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20, 22 (2d Cir. 2019). Rather, courts also evaluate the extent of past enforcement against the
plaintiff. Id. at 23. Thus, in Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016), the Second
Circuit found that the plaintiffs had alleged a credible threat of prosecution not only because their
behavior was clearly prohibited by an ordinance, but also because the town “announced its intention
to enforce the Ordinance” against the plaintiffs and warned them that failure to comply might
constitute an offense punishable by fine, imprisonment, or both. Similarly, in Knife Rights v. Vance
802 F.3d 377, 385-87 (2d Cir. 2015), the court found that a credible threat of prosecution existed
where the defendant district attorney “recently identified [one of the plaintiffs] as a [state criminal
law] violator and pursued enforcement action against it.” See also Susan B. Anthony List, 573 U.S. at
164 (discussing history of past enforcement of a statute against the petitioners, for the same
conduct, as being good evidence that “the threat of enforcement is not ‘chimerical’”).
By contrast, the Plaintiffs here do not allege any past enforcement against them that would
bear on the facts alleged, and they do not identify any warnings or public statements by the Attorney
General that would suggest that they face imminent future prosecution. The facts alleged are thus
insufficient to demonstrate a credible threat of prosecution, and Plaintiffs lack standing to sue. See
Adam, 792 F. App’x at 22-23 (finding that plaintiff lacked standing where, inter alia, he did not claim
that the challenged statute had been “enforced against him in the past,” nor that “he has ever been
threatened with prosecution”).
B. There Is No First Amendment Right to Give Unlicensed Legal Advice
Even if Plaintiffs could show they face a credible threat of prosecution, they still could not
prevail on the merits because the First Amendment “right” alleged here does not exist. States,
including New York, have a strong interest in maintaining the standards of those who wish to be
legal advocates, Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460 (1978), and “it has never been
deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely
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because the conduct was in part initiated, evidenced, or carried out by means of language, either
spoken, written, or printed.” Id. at 456. Thus, as Justice White reasoned in his concurring opinion in
Lowe v. S.E.C., 472 U.S. 181, 232 (1985), “[i]f the government enacts generally applicable licensing
provisions limiting the class of persons who may practice the profession, it cannot be said to have
enacted a limitation on freedom of speech or the press subject to First Amendment scrutiny.”
Consistent with these principles, federal courts have repeatedly rejected the argument that
laypersons have a First Amendment right to give legal advice, or otherwise practice law, without a
license. For example, in Monroe v. Horwitch, 820 F. Supp. 682, 683-86 (D. Conn. 1993), aff’d, 19 F.3d
9 (2d Cir. 1994)—the sole reported federal case from within this Circuit to squarely address the
issue—the court dismissed a First Amendment challenge brought by a paralegal who wished to
prepare divorce papers for others. The court held that the “prohibition against unauthorized
practice of law does not violate plaintiff’s First Amendment right to freedom of speech.” Id. at 686.
As the court reasoned, the practice of law is not a “matter of grace or favor,” but a privilege
reserved for those who have met the required qualifications (which the paralegal had not met.). Id.
Similarly, in Turner v. Am. Bar Ass’n, 407 F. Supp. 451, 478 (N.D. Tex. 1975), the court
rejected the arguments of various plaintiffs, including a pastor, who claimed that rules prohibiting
nonlawyers from representing litigants in court violated those litigants’ First Amendment right to
freely associate (among other things). The Court held that:
[T]he Constitution of the United States, in particular the First and Sixth
Amendments, does not grant to the Plaintiffs the right to have an
unlicensed layman represent them in Court proceedings. The corollary
of this holding is that unlicensed laymen cannot under the Constitution
demand the right to represent other litigants.
Id. (emphasis added); see also Elansari v. State of Montana, No. CV 21-57-H, 2021 WL 5534930, at *5
(D. Mont. Oct. 6, 2021), report and recommendation adopted, 2021 WL 5036046 (D. Mont. Oct. 29, 2021)
(dismissing constitutional challenge brought by nonlawyer who had sought to draft pleadings and
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file documents for others and holding that plaintiff had no First Amendment right to practice law
without a license); Adams v. Am. Bar Ass’n, 400 F. Supp. 219, 225 (E.D. Pa. 1975) (rejecting
plaintiffs’ claim that “their First Amendment rights have been violated in that they, as non-lawyers,
have not been permitted to represent one another in various civil and criminal cases” and dismissing
constitutional challenge); McDermott v. Langevin, 587 B.R. 173, 185 (Bankr. N.D. Ga. 2018) (rejecting
free speech arguments raised by nonlawyer preparer of bankruptcy petitions and holding that
Georgia’s unauthorized practice statute was “not subject to First Amendment scrutiny” because it
focused on “regulation of professional conduct with only an incidental impact on speech”); In re
Douglas, 304 B.R. 223, 239 (Bankr. D. Md. 2003) (bankruptcy petition preparers had “no
constitutional right under the First Amendment or otherwise to render legal advice without a
license”).
The Supreme Courts of Colorado, Montana, Ohio, North Dakota, and Florida have also
rejected nonlawyers’ arguments that the First Amendment gave them the right to offer legal advice
or otherwise practice law. For example, in People v. Shell, 148 P.3d 162, 170-72 (Colo. 2006), the
court found that a nonlawyer “advocate” had engaged in the unauthorized practice of law where she
had offered legal advice, drafted legal pleadings, and attempted to represent another person in court.
In so holding, the court expressly rejected the nonlawyer’s argument that her actions “were
permissible exercises of her First Amendment freedom of speech and freedom to petition the
government.” Id. at 173. The court reasoned that, “in general, Colorado’s ban on the unauthorized
practice of law does not implicate the First Amendment because it is directed at conduct, not speech”—
and that any impact on speech was “merely the incidental effect of observing an otherwise legitimate
regulation.” Id. at 173-74 (italics in original).
Similarly, in Montana Supreme Ct. Comm’n on Unauthorized Prac. of L. v. O’Neil, 147 P.3d 200,
214 (Mont. 2006), the Montana Supreme court rejected a lay advocate’s argument that the
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“application of the unauthorized practice statutes to his conduct” violated his First Amendment
rights of speech and association and affirmed that advocate had “no First Amendment right to
practice law without a license.” See also Cincinnati Bar Assn. v. Bailey, 852 N.E.2d 1180, 1182-87 (Ohio
2006) (finding that nonlawyer had engaged in the unauthorized practice of law by giving advice on
preparing and filing documents with the Ohio Bureau of Motor Vehicles and rejecting First
Amendment defense because the “restrictions . . . prohibiting practicing law without a license do not
implicate his right to free speech.”); State v. Niska, 380 N.W.2d 646, 648-50 (N.D. 1986) (concluding
that North Dakota’s unauthorized practice of law statute, as applied to nonlawyer advocate, did “not
violate his right of free speech guaranteed by the North Dakota Constitution and the First and
Fourteenth Amendments to the United States Constitution”); Florida Bar v. Furman, 376 So. 2d 378,
379-382 (Fla. 1979) (finding that a nonlawyer who sold “do-it yourself divorce kits” was “guilty of
the unauthorized practice of law” and rejecting, at least implicitly, the nonlawyer’s argument that the
First Amendment protected “her right to disseminate and the right of her customers to receive
information which would allow indigent litigants access to the state’s domestic relations courts”). 3
C. The Cases Plaintiffs Rely Upon Do Not Address Whether
Unlicensed Laypersons Have a First Amendment Right to Practice Law
As the above decisions make clear, there is no shortage of cases that address whether
nonlawyers have a First Amendment right to practice law without a license. Plaintiffs inexplicably

3

Other state court decisions contain similar holdings or reasoning. See, e.g., Drew v. Unauthorized
Prac. Of L. Comm., 970 S.W.2d 152, 154-55 (Tex. App. 1998) (rejecting constitutional arguments raised
by nonlawyer advocate and holding that Texas’ unauthorized practice statute “does not impermissibly
infringe on his First Amendment rights”); Howard v. Superior Ct., 52 Cal. App. 3d 722, 726, 125 Cal.
Rptr. 255, 257 (Cal. Ct. App. 1975) (“The constitutional protection for free speech does not extend
to the delivery of legal or medical or financial advice by persons not licensed to give such advice.”);
see also Nat’l City Bank v. Kessler, No. 03AP-312, 2003 WL 22976609, *6 (Ohio Ct. App. 2003) (the
“First Amendment to the Constitution of the United States does not contain a right to represent
others before a court without having a license to do so, and the state has a compelling interest in the
practice of law”).
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ignore all of these cases, however, and instead attempt to manufacture a new First Amendment
“right” based on decisions that have nothing do with the practice of law by unlicensed laypersons.
Foremost among these readily distinguishable cases are NAACP v. Button, 371 U.S. 415
(1963), and In re Primus, 436 U.S. 412 (1978), which Plaintiffs cite extensively. In contrast to the
facts here, the plaintiffs in Button and Primus did not claim that the First Amendment gave them, or
anyone else, the right to practice law without a license, and the Supreme Court never addressed any
such argument. Instead, in both cases, the Court found that the First Amendment protects certain
other activities, such as lawyer recommendations, that help litigants secure legal representation in
civil rights matters. See Button, 371 U.S. at 433-37 (holding that a state antisolicitation statute was
unconstitutional as applied to the NAACP’s activities where that statute effectively proscribed any
arrangement by which prospective litigants were advised to seek the assistance of a “particular
attorney or group of attorneys”); Primus, 436 U.S. 412 at 416-439 (holding that the First Amendment
protected an attorney’s decision to send a letter to a prospective litigant recommending free legal
representation by the ACLU).
Stated differently, the plaintiffs in Button and Primus sought to facilitate representation by
duly licensed counsel. They did not seek to usurp counsel’s role by empowering unlicensed
laypersons to practice law, as Plaintiffs seek to do here. See also Adams, 400 F. Supp. at 225 (noting
the “enormous” factual distinctions between Button and related cases, on one hand, and the case
before the court, where nonlawyers claimed they had a First Amendment right to practice law
without a license, on the other); Niska, 380 N.W.2d at 650 (nonlawyer’s efforts to practice law
without a license were “not . . . the type of collective activity protected by Button and its progeny”);
Turner, 407 F. Supp. at 478 (rejecting the applicability of Button and other Supreme Court cases

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because those cases “did not involve the question of securing redress of grievances in Court by
unlicensed counsel”). 4
Plaintiffs’ reliance on the Second Circuit’s decision in Jacoby & Meyers, LLP v. Presiding Justices
of First, Second, Third, and Fourth Dep’t, 852 F.3d 178 (2d Cir. 2017), is even more puzzling. The
plaintiffs in that case never argued they had a right to practice law without a license, and the Second
Circuit squarely rejected the First Amendment arguments the plaintiffs did make, applying rational
basis review—and not strict scrutiny. Jacoby, 852 F.3d at 182-92. Cf. Pl. Br. at 13 (incorrectly
claiming that Jacoby “confirm[s]” the applicability of strict scrutiny here). The plaintiffs in Jacoby
contended that statewide rules prohibiting non-attorneys from investing in law firms violated their
First Amendment rights. 852 F.3d at 182-83. The Second Circuit disagreed, and it held that (1) the
First Amendment was not even implicated, let alone violated, by the facts alleged; and (2) the case
was properly dismissed for failure to state a claim. Id. at 184-92. Both of these conclusions apply
equally here.
And far from establishing the applicability of Button to the facts alleged here, as Plaintiffs
contend, see Pl. Br. 15, Jacoby actually supports the Attorney General’s narrow reading of that case.
As the Second Circuit noted, “the Supreme Court . . . held [in Button and other cases] that the First
Amendment bears on some situations in which clients and attorneys seek each other out to pursue
litigation.” 852 F.3d at 185. This is not such a situation.
Similarly, to the extent the Fourth Circuit’s decision in Capital Associated Industries, Inc. v. Stein,
922 F.3d 198 (4th Cir. 2019), is relevant here, it supports the Attorney General’s position—and not

Brotherhood of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1 (1964), United Mine
Workers, Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217 (1967), and United Transp. Union v. State Bar of
Mich., 401 U.S. 576 (1971), which Plaintiffs address in a footnote, see Pl. Br. at 13 n.2, are
distinguishable for largely the same reasons as Button and Primus. See Turner, 407 F. Supp. at 478
(distinguishing these three cases); Niska, 380 N.W.2d at 650 (same); Adams, 400 F. Supp. at 225
(distinguishing Brotherhood of R.R. Trainmen and United Mine Workers).
4

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Plaintiffs’. Like the other cases Plaintiffs cite, Capital Associated Industries does not address whether
unlicensed laypersons have a First Amendment right to practice law. Instead, the question presented
was whether a corporation, acting through licensed attorneys, had such a right. 5 In any event, the
Fourth Circuit answered this question in the negative and affirmed dismissal of the case—a result
that supports denial of the injunction requested here. 922 F.3d at 204-212; see also Lawline v. Am. Bar
Ass’n, 956 F.2d 1378, 1386-87 (7th Cir. 1992) (rejecting the plaintiffs’ argument that a disciplinary
rule forbidding lawyers from assisting laypersons in the unauthorized practice of law was facially
invalid under the First Amendment and affirming dismissal of the case). 6
D. The Unauthorized Practice Statutes
Easily Pass Muster Under the Rational Basis Standard
Even if Plaintiffs had plausibly alleged an impairment of their constitutional rights—and
they have not—their claims would still fail for the independent reason that the unauthorized practice
prohibitions easily pass muster under the rational basis standard.
1. If the Court Concludes that a Tiers of Scrutiny Analysis Is Required, It
Should Apply the Rational Basis Standard—and Not Strict Scrutiny
Plaintiffs’ contention that this Court must apply strict scrutiny review is mistaken. Indeed,
the Attorney General is not aware of a single case where a court applied strict scrutiny when

See Cap. Associated Indus, 922 F.3d at 203 (noting that the corporate plaintiff brought suit after
being advised that it would violate North Carolina’s unauthorized practice statutes “if it employed
lawyers to give its members legal advice.” (emphasis added). The underlying district court decision
further confirms that the corporate plaintiff sought to offer “legal advice . . . through licensed North
Carolina attorneys”—and not laypersons. Cap. Associated Indus., Inc. v. Stein, 283 F. Supp. 3d 374, 378
(M.D.N.C. 2017).
5

In re New Hampshire Disabilities Rights Center, Inc., 541 A.2d 208 (1988) also did not involve any
argument that laypersons had a constitutional right to practice law without a license. Rather, the First
Amendment question presented in that case was whether a statute that effectively confined a nonprofit
corporation’s staff lawyers to “advising and representing only the poor” was constitutional. Id. at 212216. New Hampshire Disabilities Rights Center is thus irrelevant to the facts presented here.
6

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adjudicating a layperson’s claim that he had the right to practice law without a license—and
Plaintiffs cite no such cases.
Instead, Plaintiffs argue that the Court must apply strict scrutiny because New York’s
unauthorized practice statues are supposedly “content-based.” Pl. Br. at 10. Plaintiffs are wrong.
As Plaintiffs point out, a law is content-based if it is “a regulation of speech” that “on its face draws
distinctions based on the message a speaker conveys.” Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S.
Ct. 2335, 2346 (2020) (citation omitted). The statutes challenged here are not such a regulation
because they are directed at conduct, not speech, and do not purport to draw content-based
distinctions between different kinds of messages. See Shell, 148 P.3d 162, at 173-74 (noting that
Colorado’s ban on the unauthorized practice of law was “directed at conduct, not speech”) (italics in
original); Cap. Associated Indus., 922 F.3d at 208 (challenged unauthorized practice of law statues did
not “target the communicative aspects of practicing law. . . . Instead, they focus more broadly on the
question of who may conduct themselves as a lawyer”); Colindres v. Battle, No. 1:15-CV-2843, 2016
WL 4258930, at *9 (N.D. Ga. June 6, 2016) (finding that the Georgia Dental Practice Act regulated
“activities” and not “speech” where it did “not make any reference to the content of speech but
rather addresses the unauthorized practice of dentistry.”)
Plaintiffs’ proposal to apply strict scrutiny is also contrary to binding Supreme Court
precedent, including the Court’s recent recognition that laws “regulat[ing] professional conduct” are
an area where it has traditionally afforded “less protection for professional speech.” Nat’l Inst. of
Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2372 (2018) (“NIFLA”) (emphasis added); see also Cap.
Associated Indus., 922 F.3d at 208 (noting that the Supreme Court’s decision in NIFLA “provides

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ample support for the view that strict scrutiny shouldn’t apply to the [unauthorized practice of law]
statutes.”) (emphasis added). 7
To be sure, the Supreme Court’s decision in NIFLA does not specify which alternative
standard might apply to a lawsuit challenging professional conduct rules. Still, authority from within
this Circuit supports the application of the lowest tier of scrutiny—i.e., rational basis review. For
example, in Jacoby—which Plaintiffs cite as authoritative on this question, Pl. Br. at 13—the Second
Circuit applied the rational basis standard when analyzing the plaintiffs’ claim that the challenged
rules prohibiting non-attorneys from investing in law firms violated the First Amendment. 852 F.3d
at 191-92. The court reasoned that rational basis review was appropriate based on its finding that
“no First Amendment right of the [plaintiffs] is even implicated by the challenged regulations, much
less substantially burdened by them.” Id. at 191.
Courts have made similar findings with respect to rules prohibiting laypersons from
practicing law. See, e.g., Shell, 148 P.3d at 173 (“In general, Colorado’s ban on the unauthorized
practice of law does not implicate the First Amendment”) (emphasis added); Cincinnati Bar Assn., 852
N.E.2d at 1182 (“restrictions . . . prohibiting practicing law without a license do not implicate [the]
right to free speech.”); McDermott, 587 B.R. at 185 (holding that Georgia’s unauthorized practice
statute was “not subject to First Amendment scrutiny”); see also Lowe, 472 U.S. at 232 (White, J.,
concurring) (generally applicable licensing provisions limiting the class of persons who may practice
a profession are not a “limitation on freedom of speech or the press subject to First Amendment
scrutiny”).
Similarly, while the District of Connecticut’s decision in Monroe—which the Second Circuit
affirmed—does not identify a particular level of scrutiny, its reasoning is broadly consistent with
The Institute for Justice mistakenly argues in its amicus curiae brief that NIFLA supports the
application of the strict scrutiny standard to lawsuits that, like this one, challenge state unauthorized
practice rules. ECF 45 at 7-8. In fact, as noted above, NIFLA supports the opposite proposition.
7

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rational basis review. See Monroe, 820 F. Supp. at 686. The court cited with approval the general
policy supporting the prohibition of the unlicensed practice of law and otherwise rejected the
plaintiffs’ First Amendment claims outright without the need for further detailed analysis. Id. Other
decisions rejecting First Amendment claims like those here contain similarly abbreviated
reasoning—a fact that also supports the application of the lowest tier of scrutiny. See, e.g., Taylor, 407
F. Supp. at 478; Adams, 400 F. Supp. at 225, Cincinnati Bar Assn., 852 N.E.2d at 1182.
2. The Challenged Statutes are Rationally Related to
the State’s Legitimate Interest in Protecting the Public
Under the rational basis standard, the challenged government action need only be “rationally
related to a legitimate government interest.” Jacoby, 852 F.3d at 191. The prohibitions against the
unauthorized practice of law clearly pass muster under this standard. “States have a compelling
interest in the practice of professions within their boundaries, and that as part of their power to
protect the public health, safety, and other valid interests they have broad power to establish
standards for licensing practitioners and regulating the practice of professions.” Goldfarb v. Virginia
State Bar, 421 U.S. 773, 792 (1975); see also Sperry v. State of Fla. ex rel. Fla. Bar, 373 U.S. 379, 383
(1963) (recognizing that “Florida has a substantial interest in regulating the practice of law within the
State”). The statutes challenged here, which are designed to protect the public “from the dangers of
legal representation and advice given by persons not trained, examined and licensed for such work,”
El Gemayel v. Seaman, 72 N.Y.2d 701, 705 (1988), are rationally related to this legitimate interest.
E. In the Alternative, the Unauthorized Practice Statutes
Would Also Withstand Intermediate Scrutiny
The Attorney General is aware of only one federal decision where the court analyzed an
unauthorized practice of law prohibition under a standard more exacting than rational basis review.
In particular, in Capital Associated Industries, 922 F.3d at 209-10, the Fourth Circuit applied
intermediate scrutiny when assessing the constitutionality of the unauthorized practice rules as
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applied to the plaintiff corporation (in a case that, again, did not involve the state’s interest in
protecting the public from unlicensed practitioners. See Point I(c), supra).
To withstand intermediate scrutiny, a defendant must show a “substantial state interest” and
a solution that is “sufficiently drawn” to protect that interest. NIFLA, 138 S.Ct. at 2375; accord Cap.
Associated Indus., 922 F.3d at 209. For all the reasons set forth above, the unauthorized practice of
law statutes challenged here would easily withstand intermediate scrutiny review as well. See Cap.
Associated Indus., 922 F.3d at 209 (holding that challenged unauthorized practice restriction that
barred corporations from practicing law withstood intermediate scrutiny because it was “sufficiently
drawn” to protect North Carolina’s “substantial interest” in “regulating the legal profession to
protect clients”).
Indeed, since New York’s interest in regulating the practice of professions is a “compelling”
one, Goldfarb, 421 U.S. at 792, and the statutes challenged here are narrowly drawn to serve that
compelling interest, the statutes would easily withstand any standard—including the strict scrutiny
standard.
II.

PLAINTIFFS CANNOT SHOW THAT THE
REQUESTED INJUNCTION IS IN THE PUBLIC INTEREST
Plaintiffs’ application fails for a final independent reason. A litigant seeking injunctive relief

must show that the “injunction is in the public interest,” Winter, 555 U.S. at 20, and Plaintiffs have
failed to do so here. In fact, the public interest strongly weighs against the requested relief.
A. Allowing Unidentified, Unlicensed, and Unvetted Persons
to Give Legal Advice Would Harm the Interests of New Yorkers
As noted above, the purpose of New York’s prohibition against the unauthorized practice of
law is to protect the public “from the dangers of legal representation and advice given by persons
not trained, examined and licensed for such work.” El Gemayel, 72 N.Y.2d at 705. The relief that
Plaintiffs request would injure such interests.
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The first problem with Plaintiffs’ approach is that, with one exception (Rev. Udo-Okon),
they do not even identify the persons who would be giving lay legal advice if an injunction were to
be granted. Thus—and again excepting Reverend Udo-Okon—the State and this Court know
nothing about the character, experience, employment history, or level of education of the persons
that would be empowered to advise New Yorkers in ways that would directly affect their legal rights.
Plaintiffs’ approach also inappropriately bypasses crucial safeguards that ensure the
qualifications and moral fitness of practitioners. For example, an applicant for admission to practice
law in New York must generally provide certification of the State Board of Bar Examiners that the
applicant has passed the bar examination. See Campbell v. Greisberger, 865 F. Supp. 115, 120
(W.D.N.Y. 1994); N.Y. Jud. Law § 90(1)(a). Not only is there no such examination under Plaintiffs’
proposed approach, there is no independent vetting of candidates’ qualifications at all. Instead,
Upsolve intends to perform its own vetting, and it apparently plans to place nonlawyers in charge of
deciding whether a given candidate is qualified to give legal advice to New York’s citizens. See
Pavuluri Decl. (ECF 7-1) ¶¶ 21-23 (stating that the AJM, whose members are “not lawyers,” would
oversee the selection of Justice Advocates).
Plaintiffs also seek to bypass the essential role of court-appointed Character and Fitness
Committees, which must “carefully investigate the character and fitness” of each applicant to the
bar. Campbell, 865 F. Supp. at 120 (quoting CPLR 9404.); see also Tang v. App. Div. of New York
Supreme Ct., First Dep’t, 373 F. Supp. 800, 802 (S.D.N.Y. 1972), aff’d, 487 F.2d 138 (2d Cir. 1973)
(noting that “[i]nvestigations by ‘character committees’ and other licensing agencies are not intended
to be perfunctory”). Once again, Plaintiffs propose eliminating all independent vetting of their
candidates, and they demand that the Court and this State simply trust them to pick the right
individuals for the job. This approach would undermine the concerns New York’s unauthorized
practice rules are designed to guard against.
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B. The Relief Requested Here Would Usurp
the Legislature’s Role, Create Confusion in Law,
And Result in Inconsistent Rulings
An injunction would also harm the public interest for other reasons. For example, while
Plaintiffs often gloss over this fact, the “rules” they challenge are in fact statutes passed by the New
York State Legislature—the body most qualified to weigh the relevant public policy concerns and to
determine the specific circumstances that might warrant an exception. Plaintiffs’ efforts to bypass
the legislature, and to seek a court-crafted “exception” that New York’s elected representatives have
never approved, would disserve the public and violate basic principles of federalism. See, e.g., Chicago,
B. & Q.R. Co. v. McGuire, 219 U.S. 549, 569 (1911) (“the mere fact that a court may differ with
the legislature in its views of public policy . . . affords no ground for judicial interference, unless the
act in question is unmistakably and palpably in excess of legislative power”).
The new First Amendment “right” that Plaintiffs ask this court to recognize also lacks clear
boundaries, and a ruling in their favor would thus create uncertainty and confusion as to which
activities are protected—and which activities are not. In this regard, the Attorney General can
discern only three vague limiting factors. In particular, Plaintiffs suggest that the alleged
constitutional right to provide unlicensed legal advice would only exist where that advice: (1) is
rendered free of charge; (2) promotes access to the courts; and (3) serves expressive and/or political
goals. Pl. Br. at 10-15. 8 The latter two limitations are so vague as to be largely meaningless. For
example, all legal advice about defending a lawsuit could potentially be characterized as promoting
access to the courts (and/or “faciltat[ing] access to justice,” Pl. Br. at 14). Further, if a private
litigant’s desire to defend a debt collection case is deemed “expressive,” then virtually any financial
interest would qualify.
Plaintiffs also suggest that the provision of advice must not raise the type of ethical concerns
identified in Capital Associated Industries, Pl. Br. at 14, but they appear to contend that this requirement
would be met so long as the advice is rendered free of charge. Id.

8

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The inevitable result of this uncertainty would be a wave of additional lawsuits in which
other nonlawyers demand their own fact-specific “exception” to the prohibition against the
unauthorized practice of law. This in turn would lead to a risk of inconsistent rulings that would
further undermine the certainty and predictability of the law.
C. Plaintiffs’ Arguments About the Alleged
Public Need for an Injunction Are Unpersuasive
Plaintiffs’ arguments about the alleged public need for an injunction also miss the mark. As
an initial matter, the relief requested here would not even address, let alone remedy, the primary
concerns identified by the citizens Plaintiffs consulted. For example, the requested injunction would
not address “harassing calls from debt collectors,” a particular focus of the community members
that spoke with the Reverend Udo-Okon. Udo-Okon Decl. (ECF 7-2) ¶¶ 8, 13. Similarly, the
requested injunction would not address the principal problem faced by William Evertsen and Liz
Jurado, who report that they never received any notice that they were being sued in the first
instance. Evertsen Decl. (ECF 7-7) ¶ 13; Jurado Decl. (ECF 7-8) ¶ 6. To assist litigants in this
position, an advocate would need to know how to seek vacatur of a default judgment—a complex
legal exercise that Plaintiffs do not propose undertaking here. See Brief of Amici Curiae Consumer
Law Experts, Civil Legal Services Organizations, and Civil Rights Organizations (the “Advocate
Amici”), ECF 57, at 13.
Plaintiffs also fail to demonstrate that existing resources are inadequate to supply the limited
legal advice contemplated here. There are—as Plaintiffs concede—qualified legal aid organizations
that already provide free legal advice on debt collection matters in New York. See Compl. ¶ 44. For
example, as the Advocate Amici state in their amicus curiae brief, organizations such as CAMBA Legal
Services, District Council 37 Municipal Employees Legal Services, Legal Services NYC, Mobilization
for Justice, New York Legal Assistance Group, and TakeRoot Justice provide such advice routinely.
ECF 57 at 5. Plaintiffs’ witness Tashi Lhewa, the Supervising Attorney of the Legal Aid Society,
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himself works for an organization that provides such advice, 9 and he identifies another organization,
the Civil Legal Advice and Resources Office (“CLARO”), that does as well. Lhewa Decl. (ECF 7-5)
at ¶4. And while Plaintiffs assert, in conclusory fashion, that existing resources are inadequate, they
do not identify a single occasion in which any of these organizations turned away a New Yorker who
simply wanted advice on filling out a pre-printed form Answer in a debt collection lawsuit—the sole
advice that Plaintiffs seek leave to provide here.
The “narrowly circumscribed” advice that Plaintiffs propose to deliver could also be easily
provided for free by law school clinics, which can operate under existing New York law. See, e.g.,
N.Y. Jud. Law § 478(2) (allowing law students who have completed at least two years of law school,
and who are “acting under the supervision of a legal aid organization” to practice under certain
specified circumstances). Indeed, it appears that at least one such clinic already provides free legal
advice on debt collection matters. The webpage for the “Consumer Justice for the Elderly” clinic at
St. John’s University School of Law reports that, “[w]hen clients have been sued on a consumer
debt, we defend them.” 10 Plaintiffs do not explain why such clinics are inadequate, or why they
could not redirect their own efforts to the establishment and funding of even more such clinics or to
informing individuals of the available, existing resources for obtaining free advice from lawyers
trained and licensed to provide such advice. See Brief of Advocate Amici, ECF 57, at 5-9 (discussing
the wide array of free legal services currently available to low-income New Yorkers sued in debt
collection actions).
Additionally, the substantial array of pro bono counsel that have been recruited to support the
Plaintiffs’ lawsuit (including amici curiae) suggests that the private bar has a strong interest in
See https://legalaidnyc.org/stories/ensuring-financial-physical-wellbeing-in-the-consumerlaw-unit-and-health-law-project/ (noting that Mr. Lhewa “helps his clients handle debt collections,
identity theft, auto and student loans, credit reporting, unfair lending practices, and more”).
9

10

https://www.stjohns.edu/law/about/places/consumer-justice-elderly-litigation-clinic
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protecting the rights of citizens sued in debt collection matters. Given this interest, it seems likely
that such law firms might themselves be interested in providing free, pro bono advice about how to
answer a debt collection lawsuit. Plaintiffs have apparently never tried—let alone exhausted—this
substantial resource.
In sum, the public interest considerations at issue here weigh strongly against the requested
relief, and this fact would be sufficient to require denial of Plaintiffs’ motion standing alone. See
Winter, 555 U.S. at 23-24 (declining to undertake a separate analysis of likelihood of success on the
merits because “proper consideration” of public interest and equitable factors “alone require[d]
denial of the requested injunctive relief”).
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction should be denied.

Dated: New York, New York.
April 15, 2022

LETITIA JAMES
Attorney General
State of New York
By:
/s/ Matthew J. Lawson
MATTHEW J. LAWSON
Assistant Attorney General
28 Liberty Street
New York, NY 10005
Tel: [phone]
[e-mail]

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