Upsolve, Inc. et al v. James

Filing 6

MEMORANDUM OF LAW in Support re: 5 MOTION for Preliminary Injunction . . Document filed by Rev. John Udo-Okon, Upsolve, Inc...(Silbert, Gregory)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UPSOLVE, INC. and REV. JOHN UDOOKON,
Plaintiffs,
Case No. ____________
-vLETITIA JAMES, in her official capacity as
Attorney General of the State of New York,
Defendant.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
MOTION FOR A PRELIMINARY INJUNCTION

WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiffs

January 25, 2022

TABLE OF CONTENTS
Page
Contents
Preliminary Statement ..................................................................................................................... 1
Background ..................................................................................................................................... 3
I.

A limited supply of affordable legal assistance prevents low-income New Yorkers
from understanding their legal rights and causes widespread harm ................................... 3

II.

Plaintiffs are prepared to provide free, narrowly circumscribed legal advice on
whether and how to respond to debt collection lawsuits .................................................... 5

III.

New York’s vigorously enforced UPL rules are the only barrier to Plaintiffs
providing this advice ........................................................................................................... 7

Jurisdiction ...................................................................................................................................... 9
Argument ........................................................................................................................................ 9
I.

Plaintiffs are likely to succeed on the merits ...................................................................... 9
A.

B.
II.

The First Amendment’s protections of speech and association demand that
the UPL rules, as applied to Plaintiffs’ activity, must satisfy strict scrutiny ........ 10
1.

The First Amendment protects Plaintiffs’ truthful and nonmisleading speech ..................................................................................... 10

2.

The First Amendment protects Plaintiffs’ right to associate to
provide free, carefully circumscribed legal advice for the purpose
of increasing access to the courts .............................................................. 12

The application of the UPL rules to Plaintiffs cannot survive heightened
scrutiny.................................................................................................................. 16

The remaining preliminary injunction factors support an injunction ............................... 19

Conclusion .................................................................................................................................... 20

i

TABLE OF AUTHORITIES
Page(s)
Cases
ACLU v. Ashcroft,
322 F.3d 240 (3d Cir. 2003).....................................................................................................20
Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,
141 S. Ct. 2485 (2021) (per curiam) ........................................................................................20
Barr v. Am. Ass’n of Pol. Consultants, Inc.,
140 S. Ct. 2335 (2020) .............................................................................................................10
Bd. of Trs. of State Univ. of N.Y. v. Fox,
492 U.S. 469 (1989) .................................................................................................................11
Boddie v. Connecticut,
401 U.S. 371 (1971) .................................................................................................................15
Brotherhood of R.R. Trainmen v. Virginia. ex rel. Va. State Bar,
377 U.S. 1 (1964) .....................................................................................................................13
Cap. Associated Indus., Inc. v. Stein,
922 F.3d 198 (4th Cir. 2019) .............................................................................................14, 15
El Gemayel v. Seaman,
72 N.Y.2d 701 (1988) ..........................................................................................................8, 18
Elrod v. Burns,
427 U.S. 347 (1976) .................................................................................................................19
Faretta v. California,
422 U.S. 806 (1975) .................................................................................................................18
Jacoby & Meyers, LLP v. Presiding Justices of First, Second, Third, and Fourth
Dep’t, Appellate Div. of Supreme Court of N.Y.,
852 F.3d 178 (2d Cir. 2017).............................................................................12, 13, 14, 15, 16
Kraham v. Lippman,
478 F.3d 502 (2d Cir. 2007).....................................................................................................16
Legal Servs. Corp. v. Velazquez,
531 U.S. 533 (2001) .................................................................................................................11
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803)...................................................................................................20

ii

In re N.H. Disabilities Rights Ctr., Inc.,
130 N.H. 328 (1988) ..........................................................................................................14, 15
Matter of N.Y. Cnty. Lawyers Ass’n v. Dacey,
28 A.D.2d 161 (N.Y. App. Div. First Dep’t 1967) ....................................................................8
NAACP v. Button,
371 U.S. 415 (1963) .....................................................................................................12, 13, 19
Nat’l Inst. of Fam. & Life Advocs. v. Becerra,
138 S. Ct. 2361 (2018) .............................................................................................................16
Nat’l Org. for Marriage, Inc. v. Walsh,
714 F.3d 682 (2d Cir. 2013).......................................................................................................9
N.Y. Progress & Prot. PAC v. Walsh,
733 F.3d 483 (2d Cir. 2013).....................................................................................9, 10, 19, 20
Ohio State Bar Ass’n v. Watkins Glob. Network, L.L.C.,
159 Ohio St. 3d 241 (2020)......................................................................................................18
Ohralik v. Ohio State Bar Ass’n,
436 U.S. 447 (1978) ...........................................................................................................11, 13
People v. Alfani,
227 N.Y. 334 (1919) ..................................................................................................................8
Police Dep’t of Chicago v. Mosley,
408 U.S. 92 (1972) ...................................................................................................................10
In re Primus,
436 U.S. 412 (1978) .....................................................................................................12, 13, 15
Reed v. Town of Gilbert,
576 U.S. 155 (2015) .................................................................................................................10
Roberts v. United States Jaycees,
468 U.S. 609 (1984) .................................................................................................................12
Roman Cath. Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) (per curiam) ............................................................................................19
Matter of Rowe,
80 N.Y.2d 336 (1992) ............................................................................................................8, 9
Sure-Tan, Inc. v. NLRB,
467 U.S. 883 (1984) .................................................................................................................15

iii

Turner v. Rogers,
564 U.S. 431 (2011) .................................................................................................................15
United Mine Workers, Dist. 12 v. Illinois State Bar Ass’n,
389 U.S. 217 (1967) .................................................................................................................13
United Transp. Union v. State Bar of Mich.,
401 U.S. 576 (1971) ...........................................................................................................12, 13
Vt. Right to Life Comm., Inc. v. Sorrell,
221 F.3d 376 (2d Cir. 2000).......................................................................................................9
Williams-Yulee v. Florida Bar,
575 U.S. 433 (2015) .................................................................................................................19
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) .......................................................................................................................9
Statutes
28 U.S.C. § 1331 ..............................................................................................................................9
28 U.S.C. §1343 ...............................................................................................................................9
28 U.S.C. § 2201(a) .........................................................................................................................9
N.Y. Jud. Law § 476-a ....................................................................................................................8
N.Y. Jud. Law § 478 ........................................................................................................................8
N.Y. Jud. Law § 484 ........................................................................................................................8
N.Y. Jud. Law § 485 .......................................................................................................................8
N.Y. Jud. Law § 750 .......................................................................................................................8
N.Y. Jud. Law § 753 ........................................................................................................................8
N.Y. Penal Law § 20.00 ...................................................................................................................8
Other Authorities
6A N.Y. Jur. 2d, Attorneys at Law § 54 ..........................................................................................8
Br. Of Appellees, Jacoby & Meyers, No. 15-2608, 2016 WL 692945 (2d Cir. Feb.
18, 2016) ..................................................................................................................................14
Neil Gorsuch, A Republic, If You Can Keep It 257 (2019) ..............................................................4

iv

Letitia James, Attorney General James Urges Consumers to Be Aware of Rights
When Faced with Attempts to Collect on Consumer Debt (Dec. 1, 2021).........................16, 17
1 F. Pollock & F. Maitland, The History of English Law (2d ed. 1909) .......................................18
Lauren Sudeall, The Overreach of Limits on “Legal Advice”, 131 Yale L.J.F. 637
(2022) .......................................................................................................................................17

v

PRELIMINARY STATEMENT
Plaintiffs are seeking to fight a serious problem: many low-income New Yorkers are unable
to understand and access their civil legal rights when they face a debt collection lawsuit and as a
result many suffer wrongful deprivation of property and serious downstream consequences. New
York State itself has recognized that responding to such a lawsuit is both straightforward and
important, as New York State provides a one-page fill-in-the-blank form for doing so. But many
defendants still cannot and do not answer without legal assistance. The vast majority of debt
collection defendants are low-income individuals who cannot afford a lawyer, and pro bono advice
is in too short supply. As a result, the large majority of debt collection defendants are left to fend
for themselves and fail to respond, thus leading to entry of a default judgment, even when they
might have asserted an affirmative defense that could have prevented the wrongful deprivation of
their property. This access to justice gap is well-documented, disproportionately harms lowincome individuals and people of color, and is exacerbated by the COVID-19 pandemic.
Plaintiff Upsolve is a non-profit organization that has designed a program called the
American Justice Movement to help close this access to justice gap by associating with individuals
who are not lawyers—like Plaintiff Rev. John Udo-Okon—to provide narrowly-circumscribed and
valuable advice about how to respond to a debt collection action. The aim of this expressive
association is to fight the cycle of poverty and make the guarantee of equal justice under law a
reality for individuals who risk losing their property because they lack the resources to understand
and access their legal rights.
Third-party experts on consumer protection and debt collection have reviewed the program
and determined that clients will receive substantial benefits at no cost and will benefit from many
important protections in the program. Among these protections are that: (1) all advice will be
strictly limited to advising low-income New Yorkers on whether and how to fill out and file the

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state-provided debt collection lawsuit answer form; (2) all advice will be provided for free with no
expectation of private commercial gain; (3) all advice-givers, called “Justice Advocates,” will be
carefully vetted, trained, and supervised by Upsolve; (4) Justice Advocates will provide advice
only pursuant to the terms of a strict, expert-approved “Training Guide;” (5) Justice Advocates
will provide robust disclosures to clients about the nature of their service and will abide by conflictof-interest and confidentiality restrictions; and (6) Upsolve will monitor the Justice Advocates’
performance and remove Justice Advocates who do not follow the program’s strict rules or live up
to its consumer-protective values.
Plaintiffs are chilled from engaging in this important advocacy and association, however,
because New York’s rules governing the unauthorized practice of law (“UPL”) prohibit
individuals who are not lawyers from providing individualized advice about whether or how to
respond to a lawsuit, even when that advice is straightforward and simply involves assisting a
person in filling out and filing a state-provided form to answer a complaint. The effect of applying
these rules to Plaintiffs is to deny low-income New Yorkers the ability to understand and access
their legal rights and deny Plaintiffs their constitutional rights to advocate and associate. Moreover,
without such advice, more debt collection defendants will default, depriving courts of the chance
to subject such claims to testing and undermining public perception of the justice system.
At bottom, barring Plaintiffs from implementing AJM will frustrate the very interests the
UPL rules are meant to advance. Plaintiffs have carefully designed their program to ensure that
clients will receive substantial benefits at no cost and will be better off with the benefit of the free,
limited assistance that Plaintiffs would provide than they would be were they forced to represent
themselves. Allowing Plaintiffs to provide this narrow, non-commercial, non-misleading, and free
legal advice would empower low-income New Yorkers to assert their rights and enable courts to

2

properly exercise their judicial power, thereby advancing consumer protection and strengthening
the integrity of New York State’s legal system and the public’s perception of it. This Court should
enter a preliminary injunction to enable Plaintiffs to put this program into operation.
BACKGROUND
I.

A LIMITED SUPPLY OF AFFORDABLE LEGAL ASSISTANCE PREVENTS
LOW-INCOME NEW YORKERS FROM UNDERSTANDING THEIR LEGAL
RIGHTS AND CAUSES WIDESPREAD HARM.
Debt collection actions are among the most common kinds of lawsuits in New York’s

courts. When low-income New Yorkers face a debt collection action, however, they often cannot
afford to hire a lawyer and free lawyers are often unavailable. See Compl. ¶¶ 26, 43–48. As a
result, such low-income New Yorkers often have no choice but to go it alone. In practice, without
legal advice, ordinary individuals simply fail to respond, even when they have potentially
meritorious defenses to liability. See id. ¶ 2. Indeed, self-represented debt collection defendants
face default judgments at overwhelming rates. See id. ¶¶ 2, 19.
Research has shown that many such suits lack merit or seek the wrong amount of money,
meaning that many defendants are wrongfully deprived of property without ever having their day
in court. See id. ¶¶ 21, 32. And the consequences of this wrongful deprivation of property extend
further than the initial debt, as a default judgment can cause lasting harm to an individual’s credit
score and result in bank account seizure, wage garnishment, automobile repossession, or
eviction—thereby undermining low-income New Yorkers’ ability to participate fully in the state’s
economy. See id. ¶ 24. As declarations from New Yorkers who have suffered default judgments
illustrate, the consequences of such a default can be severe and long-lasting. See Exs. 5–7
(declarations of William Evertsen, Liz Jurado, and Christopher Lepre)1; Compl. ¶ 25.

1

Exhibits cited herein are attached to the Silbert Declaration in Support of the Motion for a Preliminary Injunction.

3

Leading institutions have proposed a variety of solutions to the inadequate supply of
individualized legal assistance. Recently, the American Academy of Arts and Sciences released a
report advocating for increased opportunities for professionals who are not lawyers—“Justice
Advocates”—to provide carefully circumscribed legal assistance. See Compl. ¶ 73. In doing so,
the Academy recognized that a variety of states and federal agencies had successfully
experimented with non-lawyer advocacy. See id. ¶¶ 73–74. As Justice Neil Gorsuch put it,
“nonlawyers already perform—and have long performed—many kinds of work traditionally and
simultaneously performed by lawyers,” making it “entirely unclear why exceptions should exist to
help [] niche (and, some might say, financially capable) populations but not be expanded in ways
more consciously aimed at serving larger numbers of lower- and middle-class clients.” Neil
Gorsuch, A Republic, If You Can Keep It 257 (2019); see id. (finding it “well past time to reconsider
our sweeping unauthorized practice of law prohibitions”).
New York State itself recognizes the problem of default judgments in debt collection
actions, as it provides a simple one-page form for responding to such cases. See Compl. ¶¶ 2, 34–
36. The form includes a number of labeled checkboxes allowing defendants to select affirmative
defenses, such as, “I had no business dealings with Plaintiff (Plaintiff lacks standing)” or
“Unconscionability (the contract is unfair).” See Compl. Ex. A. But the form is insufficient. Even
with it, low-income New Yorkers face language and educational barriers and may be unfamiliar
with or intimidated by the legal system and the legal concepts mentioned in the form. See Compl.
¶¶ 37–42. Without legal assistance, they fail to respond or respond inaccurately. Id. ¶ 38. The rate
of default remains sky high.
Whereas debt collection defendants are typically unrepresented and fail to appear, debt
collection plaintiffs are often repeat players who can benefit from economies of scale to bring

4

many such suits at low cost, making it economical to pursue even small-dollar claims. Id. ¶¶ 49–
52. The high rate of default also reduces the incentive for plaintiffs to carefully develop cases, as
the large majority of such claims are never subjected to adversarial testing. See id. ¶ 51. The access
to justice gap is thus severe and pervasive.
II.

PLAINTIFFS ARE PREPARED TO PROVIDE FREE, NARROWLY
CIRCUMSCRIBED LEGAL ADVICE ON WHETHER AND HOW TO RESPOND
TO DEBT COLLECTION LAWSUITS.
Plaintiffs have developed a program to help close this gap by empowering non-profit

professionals already embedded in low-income communities to provide free, narrowly
circumscribed, and straightforward legal advice about whether and how to respond to a debt
collection lawsuit. Plaintiffs have carefully limited the program’s scope and imposed strict
requirements to minimize the risk of bad advice. Plaintiffs are associating in this common cause
with a common goal: to express their belief in free and fair access to the courts and fight the cycle
of poverty by ensuring that all Americans can understand and access their civil legal rights. Id. ¶ 3.
Plaintiff Upsolve is a non-profit organization with a mission and successful track record of
helping Americans access their legal rights for free and engaging in widespread education and
advocacy aimed at expanding access to justice. Upsolve has advocated for systemic changes to the
American legal and financial systems that directly improve people’s lives by developing policy
proposals; communicating Upsolve’s policy agenda with elected officials, judges, bar associations,
and legal scholars; publishing op-eds; giving speeches, panel presentations, and appearing at
conferences; developing a robust technology platform for self-represented individuals filing for
personal bankruptcy; and expanding public awareness through community education and outreach,
social media engagement, and earned media appearances. See id. ¶ 80.
Upsolve designed and is prepared to launch the American Justice Movement (“AJM”), a
project designed to recruit and train non-profit professionals who are not lawyers—Justice
5

Advocates—to provide free advice to low-income Americans in their communities facing debt
collection lawsuits and in need of assistance. See id. ¶¶ 57–58, 78–79. Upsolve has committed its
own resources to developing AJM and has secured a financial grant to support the program, which
will allow it to fund a staff member to vet, train, and supervise Justice Advocates. See id. ¶ 82.
AJM has prepared a detailed Training Guide in consultation with experts in consumer
finance and debt collection law to dictate to Justice Advocates how to provide free, narrow, and
straightforward legal advice within a framework with robust guardrails to protect clients from risk
of harm. See id. ¶¶ 63–69. Both Professor Pamela Foohey—an expert in commercial law and
consumer law at Benjamin N. Cardozo School of Law—and Mr. Tashi Lhewa—Supervising
Attorney of the Legal Aid Society’s Consumer Law Project—reviewed the Training Guide and
confirmed that advice provided pursuant to the guide will be in clients’ best interests. See. Ex. 4
(Foohey Declaration); Ex. 3 (Lhewa Declaration).
AJM’s Training Guide prescribes strict criteria to which Justice Advocates and their clients
must adhere. See Compl. Ex. B. Justice Advocates may advise only on the narrow question of
whether and how to respond to a debt collection action; where a client’s needs exceed this mandate,
Justice Advocates must direct them to alternative sources of assistance. AJM requires that all
advice be provided for free and in service of the mission to increase access to justice; that all advice
remain within the narrow scope of issues described in the Training Guide; that Justice Advocates
clearly disclose and secure acknowledgement from their clients of the limited nature of the advice
being provided; and that Justice Advocates adhere to the conflicts-of-interest and confidentiality
standards that apply to New York lawyers doing pro bono work. See Compl. ¶¶ 62, 67–69. AJM
will use a web-form to track every advice-giving encounter and routinely follow up with clients to
ensure that the advice they received was fully consistent with the program’s strict guidelines and

6

limited scope. AJM also encourages clients to contact AJM directly about any misbehavior or
deviation from these standards by Justice Advocates. AJM commits to investigating these
complaints and, if necessary, removing Justice Advocates from the program. See id. ¶¶ 68–70.
AJM warns Justice Advocates that providing legal advice outside the narrow scope and
strict terms of the program may expose them to prosecution for engaging in the unauthorized
practice of law or under other state and federal consumer-protection laws. See id. ¶ 71. Justice
Advocates providing false, misleading, or bad faith advice will thus not be operating under the
auspices of AJM and can be prosecuted for their misconduct.
Plaintiff Rev. John Udo-Okon is committed to serve as a Justice Advocate with AJM. He
is a pastor in the South Bronx who believes in preaching the gospel by providing social services
to his disproportionately Black and poor community. See id. ¶ 83. As described in his declaration,
Rev. Udo-Okon attests that he is ready and willing to act as an AJM Justice Advocate and provide
free legal advice on responding to debt collection actions to members of his community with the
goal of expanding access to the courts and ensuring that all members of his community can access
their legal rights. See Ex. 2 (declaration of Rev. Udo-Okon). Rev. Udo-Okon further asserts that
the need for such advice is urgent and exacerbated by the COVID-19 pandemic: after a recent town
hall meeting, more than one hundred community members signed a petition asserting that they
want to receive this kind of advice from Rev. Udo-Okon. See id.; Ex. 2A (attaching the petition).
He thus could provide valuable, important, and free legal advice to his community under the
American Justice Movement starting immediately.
III.

NEW YORK’S VIGOROUSLY ENFORCED UPL RULES ARE THE ONLY
BARRIER TO PLAINTIFFS PROVIDING THIS ADVICE.
Plaintiffs are chilled from providing advice through AJM, however, because of the threat

of prosecution under New York’s UPL rules. See Ex. 1, Pavuluri Decl. ¶¶ 32–33; Ex. 2, Udo-Okon

7

Decl. ¶ 21. New York makes it a misdemeanor and civilly sanctionable for an individual not
admitted to the bar to engage in the “unlawful practice of law” or to hold herself out as able to do
so, and for a person to seek or assist in the providing of such legal advice. 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); see also N.Y. Penal Law § 20.00 (imposing criminal liability
for “solicit[ing], request[ing] . . . or intentionally aid[ing]” in unlawful conduct). “A person is
practicing law when the person gives legal advice, drafts legal documents, or otherwise holds
himself or herself out as authorized to practice law in New York State.” 6A N.Y. Jur. 2d, Attorneys
at Law § 54 (footnotes omitted); see id. (collecting cases). In particular, “[t]he practice of law
involves the rendering of legal advice and opinions directed to particular clients.” Matter of Rowe,
80 N.Y.2d 336, 341–42 (1992); see generally Matter of N.Y. Cnty. Lawyers Ass’n v. Dacey, 28
A.D.2d 161, 174–76 (N.Y. App. Div. First Dep’t 1967) (Stevens, J., dissenting opinion, adopted
as the opinion of the New York Court of Appeals, 21 N.Y.2d 694).
The purposes of New York’s UPL rules are “to protect the public in this State from the
dangers of legal representation and advice given by persons not trained, examined and licensed for
such work” and thereby protect the integrity and public perception of the judicial system. El
Gemayel v. Seaman, 72 N.Y.2d 701, 705 (1988) (citation omitted); see also People v. Alfani, 227
N.Y. 334, 339 (1919) (UPL rules aim to “protect the public from ignorance, inexperience, and
unscrupulousness” in the conduct of legal affairs).
Plaintiffs’ intended conduct—namely, providing free, individualized legal advice on
whether and how to respond to a lawsuit—constitutes the practice of law under New York law.
Although the advice they would give is straightforward, truthful, and narrow, Plaintiffs seek to
render particularized advice to specific clients on whether and how to respond to debt collection

8

lawsuits. This type of direct and individualized advice about how to respond to a lawsuit constitutes
the practice of law under New York law, without regard to how straightforward, truthful, or careful
the advice is, or whether it is free. See, e.g., Matter of Rowe, 80 N.Y.2d at 341–42. New York’s
UPL rules also prevent Plaintiffs from speaking out to advertise the free legal advice they hope to
provide or soliciting, aiding, or abetting others who would provide such advice. See supra at 7–8.
As the declarations from Rohan Pavuluri, Upsolve’s Co-Founder and Chief Executive
Officer, and Rev. Udo-Okon attest, the fear of prosecution under New York’s UPL rules is the
only thing stopping Plaintiffs from implementing AJM. See Ex. 1, Pavuluri Decl. ¶¶ 32–33; Ex. 2,
Udo-Okon Decl. ¶ 21. The UPL rules chill Plaintiffs’ intended communication and association.
JURISDICTION
This Court has jurisdiction because Plaintiffs’ claims raise federal questions under 28
U.S.C. §§ 1331 and 1343. See also 28 U.S.C. § 2201(a) (authorizing declaratory relief). Plaintiffs’
claims are ripe for review, as they have “alleged an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution.” Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 689 (2d Cir.
2013) (quoting Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000)).
ARGUMENT
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” N.Y. Progress
& Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (quoting Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)). All four factors weigh in favor of an injunction here.
I.

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
“[I]n the First Amendment context[,] the likelihood of success on the merits is the
9

dominant, if not the dispositive, factor.” Id. at 488. Here, Plaintiffs are likely to prevail in proving
that their First Amendment speech and association rights bar the application of New York’s UPL
rules.
To be clear, Plaintiffs do not seek facial invalidation of New York’s UPL rules, nor do
Plaintiffs seek to prevent application of such rules where they serve their intended purposes of
helping to protect the public. Rather, Plaintiffs seek only a ruling that New York’s UPL rules
violate the Constitution as applied to Plaintiffs’ plan to provide free, truthful, non-misleading, and
carefully circumscribed legal advice through AJM for the purpose of resolving an urgent problem
the state has recognized using tools the state itself provides. Indeed, application of the UPL rules
to Plaintiffs’ planned speech and association would affirmatively impede the interests in consumer
protection and integrity of the courts that the UPL rules were adopted to advance.
A. The First Amendment’s protections of speech and association demand that the UPL
rules, as applied to Plaintiffs’ activity, must satisfy strict scrutiny.
1. The First Amendment protects Plaintiffs’ truthful and non-misleading speech.
“Above ‘all else, the First Amendment means that government’ generally ‘has no power to
restrict expression because of its message, its ideas, its subject matter, or its content.’” Barr v. Am.
Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2346 (2020) (quoting Police Dep’t of Chicago v.
Mosley, 408 U.S. 92, 95 (1972)). To that end, “[c]ontent-based laws are subject to strict scrutiny.”
Id. (citing Reed v. Town of Gilbert, 576 U.S. 155, 163–64 (2015)). “[A] law is content-based if ‘a
regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.’” Id.
(quoting Reed, 576 U.S. at 163).
Under New York’s UPL rules, the legality of Plaintiffs’ speech turns on its content and, in
particular, whether it contains legal advice. Plaintiffs seek to provide person-to-person advice—
AJM is distributing written materials for Justice Advocates to read and rely on to provide verbal

10

legal guidance to clients—and what matters is what that advice is about: Because it is advice about
whether and how to respond to a lawsuit, it is barred by the UPL rules. See Compl. ¶ 90. For
example, Rev. Udo-Okon may provide individualized emotional counsel to a member of his church
being sued by a debt buyer for a debt she does not owe and may pray with her for relief. But Rev.
Udo-Okon would violate the UPL rules if he changed the content of his speech by also giving
straightforward advice about how to answer the lawsuit in court. The parishioner could face
liability as well if she had solicited such advice. See id. ¶¶ 92–93.
The harm to protected First Amendment interests is particularly severe given that Plaintiffs
are not pursuing commercial interests. Plaintiffs are engaging in a project of political advocacy—
and, in the case of Rev. Udo-Okon, also religious belief and ministry—to ensure that all New
Yorkers can access their legal rights with the goal of fighting the cycle of poverty and drawing
attention to the shortcomings of the justice system for low-income New Yorkers. Cf. Bd. of Trs. of
State Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989) (describing “‘commercial speech[’s] . . .
subordinate position in the scale of First Amendment values’” (quoting Ohralik v. Ohio State Bar
Ass’n, 436 U.S. 447, 456 (1978))).
The harm is more acute because denying Plaintiffs their right to provide legal advice harms
the court system’s ability to fairly adjudicate debt collection actions. When debt collection
defendants default, courts are left with no opportunity to evaluate the merits of the claims. The
result is that applying the UPL rules to Plaintiffs serves only to “prohibit[] speech and expression
upon which courts must depend for the proper exercise of judicial power.” Legal Servs. Corp. v.
Velazquez, 531 U.S. 533, 545 (2001). The current state of affairs causes “the courts and the public
to question the adequacy and fairness” of the system, and banning Plaintiffs’ political speech only
further “threatens [to] impair[] the judicial function.” Id. at 546. By contrast, allowing Plaintiffs to

11

help provide courts with accurate and good-faith answers will allow the courts to better exercise
their power and help bolster public faith in the judicial system. See, e.g., Compl. ¶ 101.
Because the UPL rules depend on the content of Plaintiffs’ communications, the
application of those rules in this context must withstand strict scrutiny.
2. The First Amendment protects Plaintiffs’ right to associate to provide free, carefully
circumscribed legal advice for the purpose of increasing access to the courts.
Strict scrutiny is additionally warranted because the application of the UPL rules abridges
Plaintiffs’ protected associational rights. The First Amendment protects the “right to associate for
the purpose of engaging in those activities protected by the First Amendment—speech, assembly,
petition.” Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). Thus, “collective activity
undertaken to obtain meaningful access to the courts is a fundamental right within the protection
of the First Amendment.” In re Primus, 436 U.S. 412, 426 (1978) (quoting United Transp. Union
v. State Bar of Mich., 401 U.S. 576, 585 (1971)).
The Supreme Court and Second Circuit have accordingly recognized that state restrictions
on the practice of law trigger strict scrutiny where they prevent non-profit associations from
advising the public of their legal rights and how to access those rights. See Jacoby & Meyers, LLP
v. Presiding Justices of First, Second, Third, and Fourth Dep’t, Appellate Div. of Supreme Court
of N.Y., 852 F.3d 178, 191 (2d Cir. 2017) (explaining that strict scrutiny applies “when a challenged
regulation imposes severe burdens on associational rights” (citation omitted)).
In NAACP v. Button, 371 U.S. 415 (1963), the Supreme Court held that a Virginia law
barring organizations from retaining attorneys to represent third parties infringed on the rights of
the NAACP and its members “to associate for the purpose of assisting persons who seek legal
redress for infringements of their . . . rights.” 371 U.S. at 428. The Court emphasized that while
the state may be interested in “insur[ing] high professional standards,” it “may not, under the guise

12

of prohibiting professional misconduct, ignore constitutional rights.” Id. at 439. Similarly, in In re
Primus, the Court held that South Carolina could not, under the guise of regulating the practice of
law in the state, discipline an ACLU attorney for advising a potential plaintiff of her rights and
informing her of the ACLU’s willingness to provide free legal representation. 436 U.S. at 432–39.
Although the Court recognized—in a case decided the same day as Primus—that “States may
vindicate legitimate regulatory interests through proscription” of “in-person solicitation for
pecuniary gain,” the Court expressly distinguished “offer[s] of free assistance” that are
“undertaken to express personal political beliefs and to advance the civil-liberties objectives of [a
non-profit association],” which may not be so restricted. Id. at 422 (citing Ohralik, 436 U.S. 447).2
The Second Circuit recently clarified Button’s reach, confirming that the UPL rules must
satisfy heightened scrutiny if they are to be applied to Plaintiffs here. Although the Second Circuit
rejected a for-profit law firm’s First Amendment challenge to New York’s prohibition on nonattorney investment in law firms, the court recognized that Button and its progeny protect
associations’ “expressive rights in the causes they pursue—when those causes implicate expressive
values,” and that laws restricting such rights must satisfy strict scrutiny. Jacoby & Meyers, 852
F.3d at 185–86. The Second Circuit distinguished the for-profit activity at issue in that case from
non-for-profit advocacy activity like Plaintiffs’ here: “Neither [of the plaintiffs] is a not-for-profit
political advocacy organization engaging in its own expression,” rather, the plaintiffs in that case
were “engaged in the practice of law as a business” for the purpose of commercial gain, meaning

2

The Supreme Court has further interpreted Button to protect the rights of unions and their members to
associate to ensure “meaningful access to the courts” by “obtain[ing] affordable and effective legal representation.”
United Transp. Union, 401 U.S. at 585–86. To that end, the Supreme Court has held that states cannot prevent unions
from: (1) recommending lawyers to members for workers’ compensation suits, Brotherhood of R.R. Trainmen v.
Virginia. ex rel. Va. State Bar, 377 U.S. 1, 8 (1964); (2) employing attorneys to represent members, United Mine
Workers, Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217, 221–22 (1967); or (3) recommending attorneys who had
agreed to a maximum fee to members, United Transp. Union, 407 U.S. at 585–86.

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that “[they] can be regulated as businesses” without “automatically trigger[ing] strict scrutiny.” Id.
at 188 (emphasis added). By contrast, the Attorney General’s brief in that case explained the import
of the Button line of cases for parties like Plaintiffs here: “[I]n every case the real party in interest
was the expressive organization or its members, and the critical part of the Court’s holding was to
recognize the rights of these organizations or their members to access the courts, and to strike
down measures that effectively impeded that right of access.” Br. for Appellees, Jacoby & Meyers,
No. 15-2608, 2016 WL 692945, at *33 (2d Cir. Feb. 18, 2016).
Precedent from both the Fourth Circuit and the New Hampshire Supreme Court is in accord
that the UPL rules, as applied to Plaintiffs, must satisfy strict scrutiny. In a recent “admittedly
close” case, the Fourth Circuit identified three key considerations in holding that restrictions on
the practice of law as applied to a trade association seeking to provide legal services to its members
need not satisfy strict scrutiny: “First, what [the trade association] seeks to accomplish would be
for commercial ends[,] . . . [s]econd, it would not facilitate access to the courts[,] [a]nd third, it
would pose ethical concerns not present in the Button cases.” Cap. Associated Indus., Inc. v. Stein,
922 F.3d 198, 206 (4th Cir. 2019). By contrast, Plaintiffs here fall on the other side of the Fourth
Circuit’s line on each factor: Plaintiffs seek to “associate for political or otherwise public goals”
not to “practice law for commercial ends,” Plaintiffs aim to “facilitate access to justice,” and, by
providing advice for free, Plaintiffs’ “proposed practice . . . does [not] raise ethical concerns” or
risk “compromis[ing] the independence and professional judgment of [those] involved.” Id.
The New Hampshire Supreme Court, in an opinion by Justice David Souter, similarly
recognized that a nonprofit’s “members and employees have an associational right under the [F]irst
[A]mendment to engage in advocacy on behalf of the disabled,” which precluded the application
of state statutes barring corporations from providing certain legal services. In re N.H. Disabilities

14

Rights Ctr., Inc., 130 N.H. 328, 339 (1988). “When such advocacy may reasonably include the
provision of legal advice,” the court explained, “the organization may itself provide legal
representation to its members or beneficiaries despite State regulations restricting legal practice
. . . provided that the organization and its lawyers do not engage in the specific evils that the general
State regulations are intended to prevent.” Id. So too here.
Plaintiffs’ activity thus fits within Button as interpreted by the Second Circuit and other
courts and is protected by the First Amendment. First, AJM is a “not-for-profit political advocacy
organization engaging in its own expression,” Jacoby & Meyers, 852 F.3d at 188, to ensure that
all low-income New Yorkers can understand and vindicate their rights to have a “meaningful
opportunity to be heard,” Boddie v. Connecticut, 401 U.S. 371, 379 (1971), and “access [the] courts
for redress of wrongs,” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896–97 (1984) (citation omitted).
See generally Turner v. Rogers, 564 U.S. 431, 449 (2011) (finding a violation of due process where
a party receives “neither counsel nor the benefit of [adequate] alternative procedures”). Second,
Plaintiffs’ activity is not “for commercial ends.” Stein, 922 F.3d at 206. Rather, all advice is
provided for free and Justice Advocates are prohibited from receiving any compensation. And
third, Plaintiffs’ activity does not “raise ethical concerns,” id., or involve “the specific evils that
the general State regulations are intended to prevent,” N.H. Disabilities Rights Ctr., 130 N.H. at
339. To the contrary, Plaintiffs designed AJM to avoid the risk of consumer harm and advance the
interests underlying New York’s UPL rules—and multiple third-party experts have confirmed that
Plaintiffs have done so successfully. See supra at 6–7 (describing the numerous consumerprotective safeguards Plaintiffs will implement). Because Plaintiffs are engaging in “collective
activity undertaken to obtain meaningful access to the courts,” the UPL rules that would abridge
this fundamental right must satisfy strict scrutiny. Primus, 436 U.S. at 426.

15

B. The application of the UPL rules to Plaintiffs cannot survive heightened scrutiny.
Because the UPL rules, as applied to Plaintiffs, burden protected First Amendment
interests, the regulations may “survive[] only if [they are] narrowly drawn to advance a compelling
state interest.” Jacoby & Meyers, 852 F.3d at 191 (quoting Kraham v. Lippman, 478 F.3d 502, 506
(2d Cir. 2007)). The UPL rules cannot satisfy this high standard of strict scrutiny. Indeed, the UPL
rules cannot even satisfy any lesser, intermediate level of scrutiny that may apply, as their
application to Plaintiffs fails to directly advance any substantial state interest. See, e.g., Nat’l Inst.
of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2375–76 (2018) (acknowledging the
“possibility that some [] reason exists” for applying intermediate scrutiny and alternatively
concluding that the challenged law “cannot [] survive intermediate scrutiny”).
The state has no significant interest in banning Plaintiffs’ advocacy and association.
Ordinarily, UPL rules serve important interests “in regulating attorney conduct and in maintaining
ethical behavior and independence” to ensure consumer protection and preserve the integrity of
the legal system. Jacoby & Meyers, 852 F.3d at 191; see supra at 8 (describing the state’s interests).
But those interests cannot justify application of the UPL rules here, because doing so would
affirmatively impede those interests.
First, by advising low-income New Yorkers whether and how to fill in a state-provided
answer form, Plaintiffs would be working to resolve an urgent problem the state itself has
recognized by facilitating accurate, timely, and clear responses to debt collection actions and
ensuring that New Yorkers exercise their rights rather than being forced to pay debts they may not
owe or which a creditor has no right to collect. See Letitia James, Attorney General James Urges
Consumers to Be Aware of Rights When Faced with Attempts to Collect on Consumer Debt (Dec.
1, 2021) (“No consumer should be sued over a debt they do not legally owe or which a creditor
has no right to collect, but as we recover financially from COVID-19, we are seeing more and
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more debt collectors come out of the woodwork with outrageous claims.”), https://ag.ny.gov/pressrelease/2021/consumer-alert-attorney-general-james-urges-consumers-be-aware-rights-whenfaced; see generally Lauren Sudeall, The Overreach of Limits on “Legal Advice”, 131 Yale L.J.
F. 637, 650 (2022) (“[I]t is hard to see what interest the government would have in preventing
users of the judicial process from knowing about and potentially exercising the very rights and
defenses it has created.”). By helping to provide accurate and good-faith answers and facilitating
full and fair adjudication of debt collection actions on the merits, Plaintiffs seek to provide courts
with information they need to reach decisions that will increase public faith and trust in the courts.
Second, Plaintiffs have taken substantial precautions to protect the state’s interest in
avoiding false, unethical, or inaccurate advice. Plaintiffs’ advice would be provided for free,
without commercial motivation. It would be provided only on a narrow, straightforward issue—
whether and how to file New York’s own standard answer form for a debt collection lawsuit. See
supra at 1–2, 5–6. AJM would train Justice Advocates on how to advise people about the use of
the form and whether they should respond, thus providing Justice Advocates with the relevant (yet
narrow) body of knowledge. AJM would require Justice Advocates to attest that they are providing
only truthful and non-misleading advice on the strict terms AJM’s Training Guide requires, which
include robust disclosures to the clients and impose confidentiality and conflict-of-interest
restrictions. See Compl. ¶¶ 62, 66–69. AJM would also monitor Justice Advocates, who could be
expelled from the program and face additional consequences if they provide inaccurate or
unfounded advice. Third-party experts have reviewed AJM’s Training Guide and determined that
it would provide the requisite protections to ensure that individuals will receive substantial benefits
from advice under the program. Plaintiffs thus have designed their program to avoid the “dangers
of legal representation and advice given by persons not trained, examined and licensed for such

17

work.” El Gemayel, 72 N.Y.2d at 705 (citation omitted). And Plaintiffs seek relief to protect only
advice that is truthful, non-misleading, and made in good faith.
Application of the UPL rules here would not be narrowly tailored. The rules are overinclusive, as other jurisdictions allow trained professionals who are not lawyers to provide limited
legal services.3 That experience confirms that the consumer- and court-protective aims of the UPL
rules can be achieved without restricting Plaintiffs rights and restricting the supply of free legal
advice-givers to a degree that results in widespread denial of low-income Americans’ days in court
and the wrongful deprivation of their property. See Compl. ¶¶ 74–77; cf. Ohio State Bar Ass’n v.
Watkins Glob. Network, L.L.C., 159 Ohio St. 3d 241, 254 (2020) (DeWine, J., concurring in part
and dissenting in part) (“Lawyers don’t have a monopoly on something just because the law
touches it.”). The UPL rules are under-inclusive, too, as they allow lawyers without specialized
training to advise on any area of the law, meaning that a corporate real estate attorney could advise
on how to respond to a debt collection lawsuit even if they have less knowledge or expertise in
that area than would AJM’s Justice Advocates. And the state has ample alternative means to
adequately protect against the risk of consumer harm. As AJM’s Training Guide makes clear, to
the extent Justice Advocates provide fraudulent advice or advice outside the scope of the program,
they remain vulnerable to prosecution under the UPL rules and numerous other consumerprotection laws (as well as ordinary civil liability for, e.g., fraud). See Compl. ¶ 71.
Far from protecting the public, the application of the UPL rules to Plaintiffs’ truthful and
non-misleading advocacy would cause public harm by preventing low-income New Yorkers from

3

Plaintiffs’ activity finds support in historical precedent, too, as legal assistance provided by individuals who are
neither trained nor barred as lawyers is deeply rooted in the nation’s history and the history of the common law. See
Faretta v. California, 422 U.S. 806, 820 n.16 (1975) (requiring litigants to proceed with counsel “would sever the
concept of counsel from its historic roots,” because “[t]he first lawyers were personal friends” and “often lack[ed] any
professional training.” (citing 1 F. Pollock & F. Maitland, The History of English Law 211–13 (2d ed. 1909))).

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accessing free legal advice they need to understand and vindicate their rights and avoid wrongful
deprivation of property and the harmful consequences that result. While the UPL rules bar
Plaintiffs’ actions as the unauthorized “practice of law,” the Supreme Court in Button made clear
that “a State cannot foreclose the exercise of constitutional rights by mere labels” where—as
here—the Plaintiffs’ actions involve the exercise of protected constitutional rights and contribute
to the aims motivating the state’s regulation in the first place. 371 U.S. at 429.
To be sure, other applications of the UPL rules may serve the important purpose of
protecting consumers from the risk of bad advice and protecting the integrity of the court system
and may be sufficiently tailored to doing so that they satisfy heightened scrutiny. Cf. WilliamsYulee v. Florida Bar, 575 U.S. 433, 444 (2015) (upholding a restriction against strict scrutiny).
But where, as here, the UPL rules restrict Plaintiffs’ political, truthful, and non-misleading speech
on the basis of its content and prevent Plaintiffs from associating to advocate and educate lowincome New Yorkers about their legal rights and those rules serve no corresponding public
purpose, due to the protections the Plaintiffs have adopted and New York’s own recognition of the
problem, they infringe Plaintiffs’ First Amendment rights and cannot be validly applied.
II.

THE REMAINING PRELIMINARY INJUNCTION FACTORS SUPPORT AN
INJUNCTION.
While Plaintiffs’ likelihood of success on the merits of their claims is “the dominant, if not

the dispositive, factor” in determining the need for an injunction, the remaining injunction factors
further confirm the need for preliminary relief. N.Y. Progress & Prot. PAC, 733 F.3d at 488. First,
“[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67
(2020) (per curiam) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)).
Plaintiffs’ inability to provide free and reliable legal advice prevents them from engaging in this

19

essential form of political advocacy and would also harm the communities they serve, as the lack
of free legal advice results in the practical denial of access to the justice system, the wrongful
deprivation of property, and severe follow-on consequences. See Ala. Ass’n of Realtors v. Dep’t
of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam) (“risk of irreparable harm”
from “depriv[ation] of [money] with no guarantee of eventual recovery”).
Second, an injunction will cause the state no cognizable harm because “[t]he Government
does not have an interest in the enforcement of an unconstitutional law.” N.Y. Progress & Prot.
PAC, 733 F.3d at 488 (citing ACLU v. Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003)). That is
especially so here because, as explained above, applying the UPL rules to Plaintiffs would not
advance the government interests those rules are meant to protect. See supra at 16–19.
Finally, awarding an injunction is in the public interest for much the same reasons. As a
threshold matter, “securing First Amendment rights is in the public interest.” N.Y. Progress &
Prot. PAC, 733 F.3d at 488. More still, the application of the UPL rules to prevent Plaintiffs from
providing free, truthful, and quality-controlled advice causes grave harm to the public: Thousands
of New Yorkers are deprived of the opportunity to assert their rights in court when facing debt
collection lawsuits and may face significant and long-lasting harm as a result—and courts are
deprived of the opportunity to ever evaluate those claims. Meanwhile, the public would see no
corresponding benefit from applying the UPL rules here, which would not serve the rules’ intended
ends. As applied to Plaintiffs and their carefully cabined program, the UPL rules harm rather than
help New Yorkers and risk undermining public perceptions of the judiciary’s ability to “do equal
right to the poor and to the rich.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803).
CONCLUSION
For the foregoing reasons, this Court should grant a preliminary injunction enjoining the
application of New York’s UPL rules to Plaintiffs’ intended conduct.
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Dated: New York, New York
January 25, 2022

Respectfully submitted,
/s/ Gregory Silbert
Gregory Silbert
Robert B. Niles-Weed
Elena De Santis
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
[phone]
Zachary D. Tripp*
WEIL, GOTSHAL & MANGES LLP
2001 M Street, NW
Washington, DC 20036
[phone]
*Pro hac vice motion forthcoming
Counsel for Plaintiffs

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