Upsolve, Inc. et al v. James

Filing 62

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

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 1 of 16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UPSOLVE, INC. and REV. JOHN UDOOKON,
Plaintiffs,
Case No. 22-CV-00627 (PAC)
(SLC)

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

REPLY 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

May 2, 2022

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 2 of 16

TABLE OF CONTENTS
Page
Contents
Preliminary Statement ..................................................................................................................... 1
Argument ........................................................................................................................................ 2
I.

Plaintiffs have standing. ...................................................................................................... 2

II.

Plaintiffs seek only to engage in protected speech and association, not a blanket
right to practice law. ........................................................................................................... 4

III.

A.

As applied to Plaintiffs, the UPL rules are content-based regulations of
speech. ..................................................................................................................... 4

B.

New York’s UPL rules also burden Plaintiffs’ Freedom of Association................ 7

C.

The UPL rules, as applied here, cannot withstand any level of heightened
scrutiny. ................................................................................................................... 8

Plaintiffs’ narrow activity is in the public interest. ............................................................. 8

Conclusion .................................................................................................................................... 10

i

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 3 of 16

TABLE OF AUTHORITIES
Page(s)
Cases
Adam v. Barr,
792 F. App’x 20 (2d Cir. 2019) .................................................................................................3
Adams v. Am. Bar Ass’n,
400 F. Supp. 219 (E.D. Pa. 1975) ..............................................................................................7
Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289 (1979) ...................................................................................................................4
Brokamp v. District of Columbia,
No. 20-3574, 2022 WL 681205 (D.D.C. Mar. 7, 2022) ............................................................5
Cayuga Nation v. Tanner,
824 F.3d 321 (2d Cir. 2016).......................................................................................................3
Cincinnati Bar Ass’n v. Bailey,
852 N.E.2d 1180 (Ohio 2006)....................................................................................................7
City of Austin v. Reagan Nat’l. Advert. of Austin, LLC,
596 U.S. __, 2022 WL 1177494 (Apr. 21, 2022) ......................................................................4
In re Douglas,
304 B.R. 223 (Bankr. D. Md. 2003) ..........................................................................................7
Drew v. Unauthorized Prac. of L. Comm.,
970 S.W.2d 152 (Tex. App. 1998) .............................................................................................7
Elansari v. Montana,
No. 21-57-H-BMM-KLD, 2021 WL 5534930 (D. Mont. Oct. 6, 2021) ...................................6
Expressions Hair Design v. Schneiderman,
137 S. Ct. 1144 (2017) ...............................................................................................................6
Fla. Bar v. Furman,
376 So. 2d 378 (Fla. 1979).........................................................................................................7
Hedges v. Obama,
724 F.3d 170 (2d Cir. 2013).......................................................................................................3
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ...............................................................................................................4, 5, 6

ii

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 4 of 16

Howard v. Superior Ct.,
52 Cal. App. 3d 722 (1975) .......................................................................................................6
Lawline v. Am. Bar Ass’n,
956 F.2d 1378 (7th Cir. 1992) ...............................................................................................6, 7
McDermott v. Langevin,
587 B.R. 173 (Bankr. N.D. Ga. 2018) .......................................................................................6
Monroe v. Horwitch,
820 F. Supp. 682 (D. Conn. 1993) .............................................................................................6
Mont. Sup. Ct. Comm’n on Unauthorized Prac. of L. v. O’Neil,
147 P.3d 200 (Mont. 2006) ........................................................................................................7
N.Y. Progress & Prot. PAC v. Walsh,
733 F.3d 483 (2d Cir. 2013).......................................................................................................2
Nat’l City Bank v. Kessler,
No. 03AP-312, 2003 WL 22976609 (Ohio Ct. App. 2003) .......................................................7
Nat’l Inst. of Fam. & Life Advocs. v. Becerra,
138 S. Ct. 2361 (2018) ...............................................................................................................6
Ohralik v. Ohio State Bar Ass’n,
436 U.S. 447 (1978) ...............................................................................................................5, 6
People v. Shell,
148 P.3d 162 (Colo. 2006) .....................................................................................................6, 7
In re Primus,
436 U.S. 412 (1978) ...................................................................................................................8
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) ...............................................................................................................8
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ...................................................................................................................4
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) ...................................................................................................................6
State v. Niska,
380 N.W.2d 646 (N.D. 1986) ....................................................................................................7
Tandon v. Newsom,
141 S. Ct. 1294 (2021) ...............................................................................................................8

iii

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 5 of 16

Turner v. Am. Bar Ass’n,
407 F. Supp. 451 (N.D. Tex. 1975) ...........................................................................................7
Vt. Right to Life Comm., Inc. v. Sorrell,
221 F.3d 376 (2d Cir. 2000).......................................................................................................3
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .......................................................................................................................9
Other Authorities
Legal Services Corp., The Justice Gap (Apr. 2022) ......................................................................10
N.Y. Attorney General, Press Release, A.G. James and State Police
Superintendent Bruen Announce Arrest of Phony Attorney (Mar. 9, 2022) ..............................3
Permanent Comm’n on Access to Justice, Report to the Chief Judge of the State of
New York: Appendices (Nov. 2021).........................................................................................10
Permanent Comm’n on Access to Justice, Report to the Chief Judge of the State of
New York: Appendices (Nov. 2019).........................................................................................10

iv

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 6 of 16

PRELIMINARY STATEMENT
The State’s Opposition (ECF 58) responds to a case Plaintiffs did not bring. Plaintiffs have
carefully designed a program for responding to a narrow but well-documented gap in access to
justice by training professionals who are not lawyers to provide free advice to low-income
individuals about what to say on a state-provided answer form for responding to a debt-collection
action. The advice is free and for the purpose of facilitating access to justice, not for profit or
commercial gain. It consists solely of speech and association to help people help themselves; the
advisers would not appear in court or submit legal filings. The scope of the advice is narrow, as
New York’s form illustrates: The advisers are recommending which boxes to check under the
circumstances of an individual’s case. The need is real, as the alternative is that many people would
receive no advice at all and instead would default. And Plaintiffs have an infrastructure for training
and regulating advisers to ensure expertise and supplement existing consumer protections.
Plaintiffs’ sole submission is that a prosecution under New York’s rules governing the
unauthorized practice of law (“UPL”) would violate the First Amendment as applied to this
specific program. As Plaintiffs and their amici have explained, this program involves protected
speech and association, as the advice consists solely of speech and the association promotes access
to justice. And although the UPL rules are broadly justified, they cannot be constitutionally applied
here because the State lacks an adequate justification to prohibit speech and association under this
narrow and carefully designed program. This Court should enter a preliminary injunction so
Plaintiffs can put this program into operation.
The State’s Opposition resists the narrow scope of Plaintiffs’ case and instead offers a
strawman. The State mainly argues that there is no unqualified “First Amendment right to practice
law without a license.” Opp. at 5–11. But Plaintiffs nowhere ask this Court to announce such a
right. And neither the State nor the cases it relies on addresses the vastly narrower argument that

1

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 7 of 16

Plaintiffs actually assert. The State instead relies on cases involving conduct like appearing in court
or filing legal papers (rather than pure speech and association to advise a client how to represent
themselves); for-profit legal services provided for commercial gain (rather than free advice
provided to remedy an access-to-justice gap); legal services provided for any and all purposes
(rather than advice on one narrow topic); or one-off actors with no training or well-defined rules
(rather than the use of an expert-vetted program). The features of Plaintiffs’ program make this
case fundamentally different and narrower, and precedent shows why Plaintiffs should prevail.
The State (joined by its amici) also claims an injunction would disserve the public interest.
But “securing First Amendment rights is in the public interest” and “[t]he Government does not
have an interest in the enforcement of an unconstitutional law.” N.Y. Progress & Prot. PAC v.
Walsh, 733 F.3d 483, 488 (2d Cir. 2013) (citation omitted). The limits of Plaintiffs’ program also
ensure that an injunction would benefit the public: Plaintiffs seek a narrow ruling that preserves
the existing status quo in every way except to allow Plaintiffs to speak and associate in this limited
fashion. And it is in the public interest to allow Plaintiffs—for free and pursuant to strict, expertvetted rules—to advise low-income New Yorkers about how to complete a state-provided form,
thus reducing the number of individuals who otherwise would go at it alone and likely default.
Plaintiffs’ advice supports rather than harms the State’s own interest in ensuring that all New
Yorkers can respond to lawsuits against them. Granting a narrow injunction is in the public interest.
ARGUMENT
I.

PLAINTIFFS HAVE STANDING.
At the outset, the State argues that Plaintiffs lack standing because their allegations “do not

establish a credible threat of prosecution.” Opp. at 4. But the test for a credible threat in the First
Amendment context is “quite forgiving” and asks only whether a plaintiff’s “fear of criminal
prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative.”

2

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 8 of 16

Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016) (citation omitted). Courts thus
“presume that the government will enforce the law as long as the relevant statute is recent and not
moribund.” Hedges v. Obama, 724 F.3d 170, 197 (2d Cir. 2013) (internal quotes omitted). A
history of enforcement or plan to prosecute the plaintiff is not required; a credible threat exists
even if the government disavows an intent to prosecute, since “nothing [would] prevent[] the State
from changing its mind.” Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 383 (2d Cir. 2000).
Here, Plaintiffs’ fear of prosecution is far from imaginary or speculative. Plaintiffs and
experts in the field have detailed how they are chilled from advising debt-collection defendants
and engaging in other activities due to a well-founded fear of prosecution under the UPL rules.
See Pavuluri Decl. (ECF 7-1) ¶¶ 32–33; Udo-Okon Decl. (ECF 7-2) ¶¶ 18, 21; Foohey Decl. (ECF
7-6) ¶ 11; NAACP Amicus Br. (ECF 25-1) at 11–12; Nat’l Ctr. for Access to Justice Amicus Br.
(ECF 28-1) at 12–13. For its part, the State insists that Plaintiffs’ activity is unlawful, actively
enforces the UPL rules (including in recent high-profile prosecutions1), and does not disavow that
it would prosecute Plaintiffs. Even worse, the State emphasizes that, in its view, Plaintiffs’ activity
would harm the public, underscoring that the risk of prosecution is real.
Plaintiffs are also prepared to implement their program immediately, see PI Br. (ECF 6) at
7–9, unlike in the only case the State cites finding no credible threat of prosecution, see Opp. at 5.
In Adam v. Barr, 792 F. App’x 20, 22 (2d Cir. 2019), a plaintiff had no credible fear of prosecution
under the drug laws where he had no actual plan to possess marijuana or distribute it to his religious
congregation (indeed, he did not even have a congregation). Here, Plaintiffs’ plans are concrete
and imminent. And the whole point of a pre-enforcement challenge is to avoid a situation where a

1

See, e.g., N.Y. Attorney General, Press Release, A.G. James and State Police Superintendent Bruen Announce Arrest
of Phony Attorney (Mar. 9, 2022) (prosecuting an individual under the UPL rules and encouraging victims of “this
type of crime” to contact the Attorney General).

3

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 9 of 16

person must refrain from protected activity or else risk prosecution. See Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979).
II.

PLAINTIFFS SEEK ONLY TO ENGAGE IN PROTECTED SPEECH AND
ASSOCIATION, NOT A BLANKET RIGHT TO PRACTICE LAW.
A. As applied to Plaintiffs, the UPL rules are content-based regulations of speech.
This is not a case about an unqualified “First Amendment right to practice law without a

license.” Opp. at 1, 5–11. Rather, the much narrower question here is whether New York’s UPL
rules, as applied to Plaintiffs’ free and reliable person-to-person legal advice about how to fill out
a state-provided form, are a content based regulation of speech. See PI Br. at 10–12 (explaining
why the UPL rules are content based); Inst. for Justice Amicus Br. (ECF 45) at 3–11 (same).
A law is content based “if it ‘target[s] speech based on its communicative content’—that
is, if it ‘applies to particular speech because of the topic discussed or the idea or message
expressed.’” City of Austin v. Reagan Nat’l. Advert. of Austin, LLC, 596 U.S. __, 2022 WL
1177494, at *4 (Apr. 21, 2022) (slip op. at 6) (quoting Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015)). In an as-applied challenge like this one, the law is not considered on its face or defined at
a high level of abstraction, rather, the question is whether “as applied to plaintiffs the conduct
triggering coverage under the state consists of communicating a message.” Holder v.
Humanitarian Law Project, 561 U.S. 1, 28 (2010) (emphasis added). Thus, in Holder, the Supreme
Court held that a statute “prohibit[ing] the provision of ‘material support or resources’” to terrorist
organizations was a content-based regulation of speech to the extent it barred plaintiffs’ speech
“communicat[ing] advice derived from ‘specialized knowledge’ [such as] training on the use of
international law” while permitting speech that “impart[ed] only general or unspecialized
knowledge.” Id. at 7, 27. Here, as in Holder, Plaintiffs want to “speak to [populations in need of
advice], and whether they may do so … depends on what they say”—the UPL rules are thus content

4

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 10 of 16

based as applied to Plaintiffs and must satisfy strict scrutiny. Id. at 27. Indeed, the only activity
Plaintiffs seek to engage in is speech—Plaintiffs will not be filing documents or appearing in court,
they will simply provide advice to individuals on the narrow topic of whether and how to fill out
the state-provided answer form, see Compl. Ex. B. (ECF 1-2) (detailing Plaintiffs’ program)—and
the UPL rules make that speech unlawful because its content is legal advice.
The crux of the State’s argument is that the UPL rules are “directed at conduct, not speech,
and do not purport to draw content-based distinctions.” Opp. at 12–13. But Holder forecloses that
argument. The Supreme Court recognized that the law in Holder “may be described as directed at
conduct” or may “generally function[] as a regulation of conduct.” Holder, 561 U.S. at 27–28.
But, the Court held, where that “generally applicable law was directed at [a party] because of what
his speech communicated,” it is a content-based regulation of speech (not conduct) and must
satisfy strict scrutiny. Id. The UPL rules, as applied here, do exactly that: they make—and are
designed to make—Plaintiffs’ speech unlawful because of the legal advice it communicates.2
The State cites a number of cases rejecting an unqualified First Amendment right to
practice law. See Opp. at 5–8. But Plaintiffs are not asserting such a right, and none of the State’s
cases involve an as-applied challenge to a program with the features at issue here, where Plaintiffs
are providing free, carefully circumscribed, and expert-vetted legal advice for the purpose of
increasing access to justice. See PI Br. at 10. For example, the State relies on Ohralik v. Ohio State
Bar Ass’n, 436 U.S. 447 (1978). But that case involved for-profit solicitation, holding that a state
“may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances
likely to pose dangers that the State has a right to prevent.” Id. at 449. The statement that “it has

2

In a very recent case, another district court rejected the exact argument the State makes here: “Defendant’s
characterization of the licensing requirement as a professional regulation cannot lower [the] bar,” because the law
“regulates counseling, which is speech, not conduct” and “only applies to Plaintiff’s speech if she speaks about certain
topics.” Brokamp v. District of Columbia, No. 20-3574, 2022 WL 681205, at *1 (D.D.C. Mar. 7, 2022) (cleaned up).

5

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 11 of 16

never been deemed an abridgment of freedom of speech … to make a course of conduct illegal
merely because the conduct was in part initiated, evidenced, or carried out by means of language,”
id. at 456, is likewise beside the point. That statement was part of the Court’s explanation that “the
State does not lose its power to regulate commercial activity deemed harmful to the public
whenever speech is a component of that activity.” Id. This case, by contrast, involves only speech
provided for free and for expressive purposes (to increase access to justice).
More recent cases confirm that application of the UPL rules to Plaintiffs triggers First
Amendment scrutiny because it would “impose[] more than an incidental burden on protected
expression” and “impose[] a burden based on the content of speech and the identity of the speaker.”
Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011); see, e.g., Holder, supra at 4–5; see also, e.g.,
Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2368–70, 2373–74 (2018) (a
regulation requiring free clinics to disseminate a government-drafted notice was not a “regulation[]
of professional conduct that incidentally burden[s] speech” but instead “regulates speech as
speech”); Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1151 (2017) (requiring
heightened scrutiny for a law “regulat[ing] how sellers may communicate their prices”).
This Court thus has no occasion to address whether the UPL rules are unconstitutional in
all applications—the question in many of the State’s cases3—or to consider applications of the
UPL rules to appearing in court or filing legal documents, especially when undertaken for profit—
the question in the State’s other cases.4 And none of the State’s cases involve providing free advice

3

The State’s only in-Circuit case, Monroe v. Horwitch, 820 F. Supp. 682, 683–86 (D. Conn. 1993), aff’d, 19 F.3d 9
(2d Cir. 1994) (Table), addressed the question on its face without reference to the application of UPL rules in that
particular case. See also, e.g., Lawline v. Am. Bar Ass’n, 956 F.2d 1378, 1386 (7th Cir. 1992) (addressing a “facial
constitutional attack”); McDermott v. Langevin, 587 B.R. 173, 184–85 (Bankr. N.D. Ga. 2018) (facial challenge to
bankruptcy petition preparer regulations); Howard v. Superior Ct., 52 Cal. App. 3d 722, 724 (1975) (involving an
injunction “against all enforcement of … a statute”).
4

See Elansari v. Montana, No. 21-57-H-BMM-KLD, 2021 WL 5534930, at *2 (D. Mont. Oct. 6, 2021) (“draft[ing]
pleadings and fil[ing] legal documents”); People v. Shell, 148 P.3d 162, 170 (Colo. 2006) (“draft[ing] legal pleadings

6

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 12 of 16

about how to fill in a state-provided form, or involve a program with expert-approved training and
rules to ensure uniform, high-quality advice that leaves recipients better off.
A number of the State’s cases instead support Plaintiffs. For example, the Seventh Circuit
in Lawline rejected a “facial constitutional attack” to UPL regulations, but declined to “speculate
as to whether th[at] regulation would be constitutional as applied to particular cases,” and expressly
acknowledged that “[t]here may well be many activities which lawyers routinely engage in which
are protected by the First Amendment and which could not be constitutionally prohibited to
laypersons.” Lawline, 956 F.2d at 1386; see Shell, 148 P.3d at 173 (“[S]ome activities constituting
the practice of law are difficult to disentangle from the exercise of free speech.”).
B. New York’s UPL rules also burden Plaintiffs’ Freedom of Association.
Plaintiffs assert a second independent claim that the UPL rules—again, solely as applied
to Plaintiffs’ activity—violate Plaintiffs’ Freedom of Association. See PI Br. at 12–15; NAACP
Amicus Br. at 7–15. To the extent the State addresses this claim, it is to woodenly state that the
cases Plaintiffs cite “do[] not address whether unlicensed laypersons have a First Amendment right
to practice law.” Opp. at 11.
Here, too, the State misses the point. In the cited cases, the Supreme Court and Courts of
Appeals recognized that “collective activity undertaken to obtain meaningful access to the courts

and attempt[ing] to represent another person in a judicial proceeding”); Mont. Sup. Ct. Comm’n on Unauthorized
Prac. of L. v. O’Neil, 147 P.3d 200, 204 (Mont. 2006) (circulating misleading advertisements, claiming to be a member
of the bar, and “represent[ing] [an individual] in a dissolution proceeding”); Cincinnati Bar Ass’n v. Bailey, 852
N.E.2d 1180, 1183 (Ohio 2006) (“prepar[ing] requests for appeals, accident reports, affidavits[,] … and petitions” and
“communicat[ing] … with court employees”); State v. Niska, 380 N.W.2d 646, 648 (N.D. 1986) (“draft[ing] pleadings
for [a client] and advised [the client] in three civil cases and one criminal action in which [the client] was involved”);
Nat’l City Bank v. Kessler, No. 03AP-312, 2003 WL 22976609, at *6 (Ohio Ct. App. 2003) (“represent[ing] others in
court”); Drew v. Unauthorized Prac. of L. Comm., 970 S.W.2d 152, 153 (Tex. App. 1998) (“fil[ing] applications for
writs of habeas corpus”); Adams v. Am. Bar Ass’n, 400 F. Supp. 219, 225 (E.D. Pa. 1975) (“represent[ing] one another
in various civil and criminal cases”); In re Douglas, 304 B.R. 223, 239 (Bankr. D. Md. 2003) (addressing “not … the
preparation of petitions and schedules, but rather … their distribution”); Fla. Bar v. Furman, 376 So. 2d 378, 379 (Fla.
1979) (“preparing pleadings”); Turner v. Am. Bar Ass’n, 407 F. Supp. 451, 477 (N.D. Tex. 1975) (“perform[ing]
functions in Court”). None of these cases involved pure, non-commercial speech like Plaintiffs’.

7

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 13 of 16

is a fundamental right within the protection of the First Amendment.” PI Br. at 12 (quoting In re
Primus, 436 U.S. 412, 426 (1978)). Plaintiffs have explained why the activity they seek to engage
in falls within this rule of law and is thus protected. See id. at 15. The State notes that the facts of
those cases are not identical to the facts here. See Opp. 8–11. But that is unsurprising, as Plaintiffs
are proposing a novel program for addressing a longstanding problem. The State, however, fails
to grapple with those decisions’ reasoning. And “[i]t is … a judicial decision’s reasoning—its
ratio decidendi—that allows it to have life and effect in the disposition of future cases.” Ramos v.
Louisiana, 140 S. Ct. 1390, 1404 (2020) (opinion of Gorsuch, J.). Under the reasoning of those
cases, heightened scrutiny applies to Plaintiffs’ collective activity undertaken to improve access to
justice. See NAACP Amicus Br. at 10 n.2 (“[T]he core lesson from these cases … depended on
the fact that the laws restricted an organization’s ability to associate freely for political purposes.”).
C. The UPL rules, as applied here, cannot withstand any level of heightened scrutiny.
The State mainly argues that the UPL rules, on their face, satisfy rational basis. Opp. at 11–
15. The State, however, nowhere attempts to meet “the government[’s] … burden” to justify
application of the UPL rules to Plaintiffs’ program specifically. Tandon v. Newsom, 141 S. Ct.
1294, 1296 (2021). In particular, the State cannot justify prosecuting Plaintiffs for engaging in (1)
pure speech; (2) provided for free and for expressive purposes, rather than for profit or any
commercial purpose; (3) to provide carefully-cabined advice to individuals in a defined area about
how to fill in a state-provided form; (4) pursuant to careful training and supervision, to ensure that
the advice is sound; and (5) when the need is immense, as illustrated by the extraordinarily high
default rates and the need in Plaintiff Udo-Okon’s community. They cannot do so, as application
of the UPL rules here cannot satisfy any level of heightened scrutiny. See PI Br. at 16–19.
III.

PLAINTIFFS’ NARROW ACTIVITY IS IN THE PUBLIC INTEREST.
Plaintiffs (and Plaintiffs’ amici) explained why allowing their narrow intervention is in the

8

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 14 of 16

public interest. See PI Br. at 20; see also, e.g., Nat’l Ctr. for Access to Justice Amicus Br. at 3–
16.5 All Plaintiffs seek to do is provide free advice to low-income New Yorkers on whether and
how to fill in a state-provided answer form, and will do so following a strict, expert-approved
Training Guide, which requires robust disclosure and informed consent. See Compl. Ex. B. Given
current high rates of default, see Compl. ¶¶ 17–24; the State’s own desire to facilitate answering
such lawsuits (as illustrated by the answer form); and Plaintiff Udo-Okon’s attestation that there
are people in his community who need this advice, see Udo-Okon Decl. ¶ 17, allowing Plaintiffs
to exercise their constitutional rights in this limited way is in the public interest.
The State does nothing to show that Plaintiffs’ actual activities as described in the
Complaint and attached Training Guide would harm the public interest—which is the only relevant
question. The State instead starts at the bottom of an imagined slippery slope and offers three
arguments against a sweeping challenge that Plaintiffs do not bring. First, the State faults Plaintiffs
for “bypass[ing] crucial safeguards,” like the bar exam, “that ensure the qualifications and moral
fitness of practitioners.” Opp. at 15–16. But while these safeguards may be important in other
contexts, the State makes no attempt to explain why this is a problem here, where Plaintiffs would
provide free, narrow advice pursuant to a strict, expert-approved Training Guide. Since the legal
advice being provided is strictly defined and regulated (and provided without financial incentive),
there is no need for the State’s ordinary processes for deciding who may engage in all aspects of
legal practice. Second, the State stirs up concerns far beyond this case by suggesting Plaintiffs will
“usurp the legislature’s role” and “create confusion in law.” Id. at 17–18. This case raises only a
narrow as-applied challenge that will not disrupt the state’s well-justified regulation of the legal
profession in other contexts. Any concern about a “wave of additional lawsuits” should be aired

5

The State’s Opposition does not dispute Plaintiffs’ claim “that they are likely to suffer irreparable harm in the absence
of preliminary relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see PI Br. at 19–20.

9

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 15 of 16

in those cases (if they arise), not this one. Id. at 18.
Third, the State (joined by amici) argues that “existing resources are []adequate to supply
the limited legal advice contemplated here.” Id. at 18–20; see Advocates Amicus Br. (ECF 57) at
5–9, 13. As a threshold matter, the precise magnitude of the problem Plaintiffs are helping to
solve—or the fact that Plaintiffs might also solve other problems or that others might help solve
this one—is irrelevant here, as the question is whether the assistance Plaintiffs will provide to
people who seek it is in the public interest, and the State has not shown otherwise. 6 At any rate,
the State’s unsupported claim that there is no access-to-justice gap in this area is contradicted by
the State’s amici’s own statements to the Chief Judge of the State of New York that “The current
scope of the unmet need for civil legal services by low-income New Yorkers in the context of
debt collection is substantial” and that “limited-scope assistance”—like that which Plaintiffs seek
to provide—“can help stop the devastating harm of judgments on the lives of indigent and
working-poor New Yorkers by helping them ... assert legal defenses in the underlying lawsuits.”7
CONCLUSION
For the foregoing reasons, this Court should grant Plaintiffs’ motion.

6

The State’s amici’s focus on “sewer service” is beside the point since they offer no evidence that sewer service (and
not the failure to answer and raise other affirmative defenses) is the only issue affecting the low-income New Yorkers
Plaintiffs will advise. Moreover, Plaintiffs’ Training Guide expressly requires Justice Advocates to advise clients who
were not properly served to contact an outside legal aid organization. See Compl. Ex. B. at 7 (“Please advise the client
that if they want to challenge service, they will probably want to file a Motion to Dismiss. Tell them this is outside
the scope of what you’re able to advise them on, but may be a good option IN ADDITION to filing this answer.
Whether to file a Motion to Dismiss is something for which you should advise the client to consult the resources listed
in Exhibit D.”); see id. at Ex. D. (listing alternative sources of assistance, including several of the State’s amici).
7

Permanent Comm’n on Access to Justice, Report to the Chief Judge of the State of New York: Appendices,
at 126 (Nov. 2021), https://www.nycourts.gov/LegacyPDFS/accesstojusticecommission/Appendices-for-Posting.pdf
(signed by directors of State’s Amici New York Legal Assistance Group, Mobilization for Justice, Brooklyn Bar
Association Volunteer Lawyers Project, Queens County Bar Association) (emphasis added); see also, e.g., Legal
Services Corp., The Justice Gap, at 9 (Apr. 2022), https://lsc-live.app.box.com/s/ xl2v2uraiotbbzrhuwtjlgi0emp3myz1
(“LSC-funded organizations [like State’s amici Legal Assistance of Western New York, Legal Services of the Hudson
Valley, and Legal Services NYC] do not have enough resources to meet the current demand for civil legal aid in the
communities they serve.”); Permanent Comm’n on Access to Justice, Report to the Chief Judge of the State of New
York: Appendices, at 322–23 (Nov. 2019), https://www.nycourts.gov/LegacyPDFS/19_ATJ-Comission_ReportAppendices.pdf (additional State’s amici noting that “the ‘justice gap’ in the consumer defense area is significant”).

10

Case 1:22-cv-00627-PAC Document 62 Filed 05/02/22 Page 16 of 16

Dated: New York, New York
May 2, 2022

Respectfully submitted,
/s/ Gregory Silbert
Gregory Silbert
Robert B. Niles-Weed
Elena De Santis
Liz Grefrath
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]
Counsel for Plaintiffs

11