Upsolve, Inc. et al v. James

Filing 66

TRANSCRIPT of Proceedings re: Oral Argument held on 5/12/2022 before Judge Paul A. Crotty. Court Reporter/Transcriber: Raquel Robles, [phone]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/14/2022. Redacted Transcript Deadline set for 6/24/2022. Release of Transcript Restriction set for 8/22/2022..(Moya, Goretti)

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

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Plaintiffs,
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v.

22 Civ. 627 (PAC)

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

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Oral Argument
Defendant.

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New York, N.Y.
May 12, 2022
11:30 a.m.

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Before:
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HON. PAUL A. CROTTY,
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District Judge
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APPEARANCES
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WEIL GOTSHAL & MANGES LLP
Attorneys for Plaintiffs
BY: ROBERT NILES-WEED
ELENA DE SANTIS
GREGORY STEWART SILBERT

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OFFICE OF THE ATTORNEY GENERAL
Attorneys for Defendant
BY: MATTHEW JOSEPH LAWSON

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(Case called)

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MR. NILES-WEED:

This is Robert Niles-Weed from Weil

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Gotshal, for the plaintiffs.

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Greg Silbert and Elena De Santis.

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THE COURT:

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MR. NILES-WEED:

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THE COURT:

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MR. LAWSON:

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I'm joined at counsel table by

Who's going to be arguing?
I will, your Honor.

All right.

OK.

And for the defendant, Letitia James,

Matthew Lawson from the New York City Attorney General's
Office.

Good morning, your Honor.

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THE COURT:

Good morning, Mr. Lawson.

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Before we start, I want to make some oral

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observations.

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great legal and social significance.

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present their arguments, let me start with several aspects of

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the case I do not understand to be in dispute.

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you can correct me.

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First of all, this is a question that deals with
Before the parties

If I am wrong,

Everyone agrees that the default rate for New Yorkers

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in these debt collection cases are astronomically high,

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everyone also agrees that more quality legal advice in this

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area would be good a thing, and everyone also agrees that the

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advice that plaintiffs seek to give would constitute an

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unauthorized practice of law under New York law.

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understand it, the question is, therefore, whether the

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plaintiffs have a First Amendment right to give that advice
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

As I

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anyway.

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We also note the unusual relief the plaintiffs seek.

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They seek a preliminary injunction, but an injunction normally

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maintains the status quo.

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would alter the status quo and create a new carve-out to a

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time-honored statute.

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plaintiffs to make their case.

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Instead, the plaintiffs' injunction

The burden is therefore on the

I've allocated 15 or 20 minutes to each side, but
that's not a hard-and-fast time rule.

I can be flexible.

have plenty of time.

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So we'll hear first from the plaintiff.

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MR. NILES-WEED:

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We

Thank you, your Honor.

I'm, as I

mentioned, Robert Niles-Weed, and I represent plaintiffs.

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I first want to acknowledge the points the Court just

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made.

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is astronomically high, a bit more advice would be good, and

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that providing advice would be the unauthorized practice of

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law.

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It's not disputed that the default rate in these actions

But I want to start by specifying exactly what the

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question is in this case.

This is a narrow, as applied,

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challenge, and plaintiffs seek to provide advice under very

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precise terms.

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advice on a single discrete topic that is truthful,

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non-misleading, and provided with fully informed consent.

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is subject to strict training, regulation, and supervision, and

Specifically, plaintiffs want to provide free

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

It

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it is reliably in the client's best interest= are doing this to

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remedy the access to justice gap the Court recognized and are

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doing so without displacing any of the state's ordinary

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regulatory authority outside the narrow scope of that program.

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Let me explain in a bit more detail why each of those

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limitations of plaintiffs' programs are relevant here.
First, the program is free.

None of the advice

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plaintiffs will provide is provided for pecuniary gain.

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There's no cost to clients, and also no risk of conflicts of

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interest that come into play when law is practiced for

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pecuniary gain.

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New Yorkers understand and access their legal rights.

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The advice is provided solely to help

Second, plaintiffs seek to provide advice only on the

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single discrete topic of how to use the state-provided answer

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form to respond to a debt collection action.

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not asking to represent anybody in court.

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asking to file those papers on behalf of the clients they

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assist, and they're certainly not --

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THE COURT:

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MR. NILES-WEED:

Plaintiffs are

They're not even

What exactly are they doing?
So what plaintiffs will be doing is

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providing limited person-to-person advice pursuant to the

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strict terms of the training guide, which is attached as

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Exhibit B to the complaint.

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advocate, like plaintiff Reverend John Udo-Okon, and he will

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direct them to describe their situation and will ask a number

So a client will come to a justice

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[phone]

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of questions about the facts of their particular case.

Based

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on the facts of their case, he will advise them the best way

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that they might reliably fill out the state's answer form and

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respond to the lawsuit against them.

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The client -- and this is made clear in the affidavit

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attached to the training and experience guide which the client

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must acknowledge -- the client must recognize that they are

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still fully self-represented, that they are in charge of all

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the decisions in their lawsuit, and what they're receiving from

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plaintiffs is just advice, and just advice delivered person to

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person through speech.

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And I'll discuss in a moment why that puts this case

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within the clean line of the Supreme Court's First Amendment

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cases.

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THE COURT:

I was under the impression that the advice

didn't go much beyond what was in the brochure, the booklet.

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MR. NILES-WEED:

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THE COURT:

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MR. NILES-WEED:

Excuse me, your Honor.

Go ahead.

Go ahead.
It doesn't go beyond that at all.

In

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fact, plaintiffs require everyone providing that advice to

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attest that they will only provide it subject to those strict

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terms.

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guide, and nothing more.

So the advice is that being provided in the training

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THE COURT:

All right.

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MR. NILES-WEED:

On the training guide, I want to

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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emphasize that the advice is being provided not just pursuant

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to this training guide itself but subject to other strict

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regulations and supervision.

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conflict of interest and confidentiality rules.

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committed to tracking every single encounter and ensuring that

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the advice being provided is within the strict, narrow terms of

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the training guide.

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The advisers must adhere to
Plaintiffs are

Fifth, and finally, the advice is reliably in the
client's best interest.

We have two expert affidavits from

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Professor Pamela Foohey, that's at ECF 7-16, and from Mr. Tashi

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Lhewa, at ECF 7-5, and they say that a low-income New Yorker

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receiving advice based on the training guide will be better off

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than they would be without it.

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Now, let me explain, now that I've laid out the

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features of our program and what exactly it is plaintiffs seek

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to do, why the First Amendment protects that limited activity.

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And I'll do it in two discrete ways, because plaintiffs'

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complaint raises two separate and independent First Amendment

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challenges, a free speech challenge under the First Amendment

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and a freedom of association challenge under the First

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Amendment.

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plaintiffs to prevail, and both of which must be rejected for

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plaintiffs not to be likely to succeed on the merits.

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Either of which is independently sufficient for

So before I do that, actually, let me offer just a
word on standing, which the government raised in their
SOUTHERN DISTRICT REPORTERS, P.C.
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opposition.

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is unusual relief, but in cases like this, in pre-enforcement

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challenges to statutes for violating the First Amendment, the

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bar is quite low to show standing, and the question is whether

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there is a First Amendment right.

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Your Honor said in his opening remarks that this

The case law -- and you could see this in the Cayuga

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Nation case, for example, we cite in our brief -- requires

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plaintiffs to show only that their fear of prosecution is not

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imaginary or wholly speculative.

And the reason for that is

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because First Amendment rights raise a particular danger of

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self-censorship and chill that the fear of prosecution will

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prevent plaintiffs and others like them from engaging in

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protected speech.

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statements by the parties, by the amicus parties here, and even

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statements by the state itself why this fear of prosecution is

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not wholly imaginary.

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And we've shown in a number of places from

Plaintiffs, Mr. Rohan Pavuluri and Reverend John

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Udo-Okon, both talk at declarations in ECF 7-1, paragraph 32,

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that's Mr. Pavuluri, ECF 7-2, paragraph 18, that's plaintiff

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Reverend Udo-Okon, talk about how they are currently today

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being chilled from engaging in this activity because of the

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fear of prosecution.

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And it's not just plaintiffs.

I'll note also that

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there's an amicus brief from 25 law professors who study

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professional regulation and access to justice.

That's at

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ECF 34-1.

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how the existing regime paralyzes potential providers, and they

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talk also about how not merely the threat of prosecution but

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even the threat of investigation is enough to chill protected

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speech in this area.

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And at pages 5 to 8 of that brief, they talk about

The state, for its part, does not disavow that it will

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prosecute plaintiffs.

The state had ample opportunity in its

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opposition to say that it would not prosecute plaintiffs, and

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it didn't.

Now, I'll note that even if the state had done so,

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or does so today, that's still not enough, as cases like the

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Vermont Right to Life made clear, but the state didn't do that.

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Instead, what the state, joined by its amicus parties, did was

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to say that plaintiffs' activity would be against the public

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interest.

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our reply brief, the state has recently prosecuted people for

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criminal penalties for violating these exact rules.

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think standing is at issue here.

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The state has -- as we note in the first footnote of

THE COURT:

That case was substantially different,

though, wasn't it?

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MR. NILES-WEED:

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THE COURT:

So the facts of that --

There was a nonlawyer practicing law and

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holding himself out as a lawyer.

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MR. NILES-WEED:

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So I don't

That's right, your Honor.

are not -THE COURT:

This is different.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

The facts

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MR. NILES-WEED:

Absolutely.

But the cases talk about

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how the question in this area is whether or not the statutes

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that are being used to prosecute are not moribund, and I think

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showing that the state does use these statutes and

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encourages -- even in the press release the statement made

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related to that case encourages people to make complaints to

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the Attorney General when they're concerned about activity that

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might be violating the statute.

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plaintiffs' fear of prosecution is imaginary or speculative.

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I'll move to say a few words on the merits.

I think it's hard to say that

And

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again, in the First Amendment context, when looking at an

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injunction, while your Honor is right that a preliminary

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injunction is unusual relief, the Second Circuit has made clear

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that in the First Amendment context, the merits, the likelihood

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of success on the merits, are the dominant, if not the

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dispositive, question in deciding whether or not to grant an

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injunction.

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public interest balancing, but I really want to focus on the

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First Amendment free speech and free association claims.

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I'll start with the free speech claim.

I'll speak briefly at the end of my remarks on the

So

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The rules governing the unauthorized practice of law,

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as they are applied to plaintiffs in this context, function as

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a content-based regulation of speech.

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has made clear time and again in a number of recent cases that

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content-based restrictions on speech must satisfy strict

And the Supreme Court

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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scrutiny.
Plaintiffs want to advise low-income New Yorkers

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dealing with debt collection actions how to respond to those

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actions, and the only reason their speech is unlawful is

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because its content --

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THE COURT:

If you have this right under the First

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Amendment, why do you limit your speech, then, to the facts

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contained in the materials contained in the brochure?

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MR. NILES-WEED:

So we're doing that for a number of

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reasons, your Honor.

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extent the program were much broader, the government would have

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a much better case that the regulations, as applied to a

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broader program, could satisfy strict scrutiny.

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reason why we're keeping this very limited.

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I think the first reason is that to the

So that is one

The other is plaintiffs -- and this sort of connects

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to the freedom of association claim -- plaintiffs want to

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ensure that the advice they're providing is in the best

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interest of low-income New Yorkers and will advance the goal of

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increasing access to the courts.

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carefully --

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THE COURT:

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MR. NILES-WEED:

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So plaintiffs have very

How does it increase access to the courts?
So as your Honor mentioned

initially -THE COURT:

The client gets something from the debt

collector, and then he goes to see the reverend, one of the
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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reverend's workers, and they have a consultation about the 18

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steps that you can take under the state law, and then the

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client, being so advised, goes off and does his own thing pro

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se.

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Is that how the program works?
MR. NILES-WEED:

That is how the program works, your

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Honor, and the reason why it matters is because in these cases

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you have 95 percent of people who receive no representation at

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all, 88 percent who default; that is, they don't answer at all.

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So what plaintiffs are trying to do is to meet these people

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where they are.
Plaintiff, Reverend John Udo-Okon, is a good example.

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He's already embedded in a low-income community in the Bronx, a

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disproportionately black community, which are especially harmed

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by the lack of legal services.

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them to understand what they should do when they're sued by a

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debt collector and don't know how to respond.

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And he's making it easier for

So what plaintiffs are doing is taking the form that

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the state provides, which the state plainly provided to make it

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easier for people to respond to these suits, to show up, and

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what plaintiffs want to do is they just want to make it a

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little easier by providing advice that will help people

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understand the state's form and use the state's form.

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they're doing it because they believe that providing this

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information will help these people understand their rights and

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narrow -SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

And

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THE COURT:

Isn't the major one the one of sewer

service, and this really doesn't address sewer service?
MR. NILES-WEED:

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service, your Honor.

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address sewer service.

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a series of --

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THE COURT:

I'll make two points about sewer

The first is that our training guide does
In Exhibit B to the complaint, there's

Your client doesn't know that he's been

sued because he hasn't gotten notice.
MR. NILES-WEED:

So let me just clarify a few things

for your Honor.
So the plaintiffs here are not the people receiving

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the advice.

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our complaint we provided a few examples of people whose

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stories illustrate the devastating and long-lasting harms that

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can result from defaulting, but those people are not the

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plaintiffs here.

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Reverend John Udo-Okon who want to provide this advice.

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the advice they provide will address sewer service.

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They are the people who would be providing it.

In

The plaintiffs are Upsolve, a nonprofit, and
And

In fact, what it recommends and in fact requires

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advisers to do is if someone comes to them seeking advice and

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the problem is that they weren't served, it tells them:

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a list of organizations, which is attached as Exhibit B to the

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training guide.

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talk to a lawyer because that problem, the problem of dealing

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with inadequate service, is outside the scope of what I can

Here's

Here's a list of organizations where you can

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handle.
So it acknowledges the problem of sewer service.

It

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directs people facing that problem to the resources they need

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to assist them.

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triage, because when these suits come, they come fast and they

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come hard.

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the court system, face great intimidation and fear, are often

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in strained financial circumstances to begin with, and they go

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to their pastor.

And what it's really doing is sort of a

You have people who have limited experience with

And the declaration from plaintiff Reverend

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Udo-Okon talks about this.

They come to him asking for advice.

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So this will be a sort of triage, a first line of defense where

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he can provide them the advice they need to get started on the

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process of responding to their lawsuit.

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The other point I want to make about sewer service is

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that there is nowhere in the brief of the amicus parties or in

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the state that suggests that sewer service is the only problem

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affecting these folks, and it's certainly not.

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number of people who fail to answer even after receiving the

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service, even after receiving adequate service, and the state

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has made a number of steps to strengthen the requirements for

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showing service that ensure that sewer service is becoming less

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of a problem, but there are all of these other problems that

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plaintiffs are trying to help.

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There are a

So let m return back to the First Amendment free
speech question and show why, under the governing Supreme Court
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case law, what the state is doing here is a content-based

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restriction on speech.

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So that advice that I was just describing, the state

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makes clear that plaintiffs could do it if they were just

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providing general information, but as soon as the content of

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what plaintiffs are saying in person, what Reverend John is

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telling his congregant, as soon as the content of that becomes

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specialized legal advice, it's illegal, and plaintiffs could be

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arrested or civilly punished.

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That's a very plain restriction

of the speech on the basis of its content.
I direct the Court to the Supreme Court's decision in

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Holder v. Humanitarian Law Project where it addressed a very

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similar question.

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statute that prevented providing material support to

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terrorists, but as applied to the plaintiffs in Holder, what

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that statute did is that statute said if you're giving general

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advice, it's OK, you're allowed to do it, it's kosher, but as

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soon as you provided specialized advice based on specialized

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knowledge, then that falls within the ambit of the statute and

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is unlawful.

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The issue in that case was there was a

And the Supreme Court said, well, it's a statute that

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says "material support of terrorists."

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conduct and not speech.

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covered by the statute is conduct.

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that's not enough.

That sounds a lot like

And, in fact, a lot of the activity
But the Supreme Court said

That, when it's applied to plaintiffs,

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regulates their speech on the basis of its content, and that's

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the relevant question.

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UPL rules in this application, have to satisfy strict scrutiny.

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So the statute in Holder, just like the

The state for its part argues against somewhat of a

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straw man on our First Amendment claims, claiming that we seek

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some unfettered right to practice law without a license or that

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what we want to do isn't speech at all but is instead conduct.

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But as I explained, plaintiffs don't want to practice law in

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any form without a license.

All they want to do is engage in

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limited person-to-person communication on this single discrete

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topic pursuant to the terms of the strict training guide.

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you read the cases the state cites, not only are none of them

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binding on this Court, but also none of them address facts that

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are anything like what the Court is being presented here.

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If

I'll say a few words now on our separate and
independent free association claim.
In our brief, we explain how cases like

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NAACP v. Button and In Re Primus, as they've been interpreted

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by the Courts of Appeal, by the Second Circuit in Jacoby &

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Meyers, by the Fourth Circuit in Stein, they recognize that the

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First Amendment freedom of association protects not for profit

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collective activity when it is undertaken to ensure access to

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the courts.

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determine when this right comes into play and when it doesn't

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come into play.

And they identify a number of considerations that

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And those considerations are (1) whether or not the

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activity is undertaken for commercial purposes.

And the

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commercial distinction is an important one.

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and this is what Jacoby & Meyers was saying, when you're

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engaged in collective activity to increase access to the courts

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but you're doing it to make a profit, your associational right

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under the First Amendment doesn't come into play there.

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in fact, these cases require as a second element that you're

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doing it for the purpose of helping people exercise their

Those cases say,

And,

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rights to access the courts.

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acknowledge that where the right comes into play is where there

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aren't ethical concerns that are activated.

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And third, these cases

Again, the commercial/noncommercial distinction is

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relevant here.

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incentives are misaligned, and the concerns that you might take

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advantage of that person or provide them advice that is better

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for you than for them comes into play.

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issue here.

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requirements of Button, of Primus, of Jacoby & Meyers, of Stein

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from the Fourth Circuit.

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If you're taking someone's money, your

None of that is at

The facts of this case satisfy all of the

So we separately, in addition to our free speech

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claim, have an independent likelihood of success on the merits

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of our freedom of association claim.

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opposition doesn't have much to say about our association

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claim, except that the cases I just discussed have different

The government in its

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facts from ours.

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about is the law and the rules set down by those cases, which

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those cases made clear apply in situations like this one.

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We acknowledge that, but what we're talking

So because the rules in this application, and, again,

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only in this precise application, because they trigger

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heightened scrutiny under the First Amendment's freedom of

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speech and freedom of association, the government must show

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that those regulations are narrowly tailored to advance a

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compelling government interest.

They must satisfy strict

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scrutiny, and the state does not meet that burden.

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the protections built into our program ensure that what we're

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doing will advance the state's own interests in ensuring that

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people are receiving sufficient competent advice to help them

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access their legal rights.

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In fact,

I'll conclude, and apologies if I've gone over my

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time, just with a few words about the public interest and the

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balance of the harms.

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First Amendment context, it's really the merits that control.

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They're the dominant, if not the dispositive, consideration,

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and that's because denial of First Amendment rights is always

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irreparable harm.

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plaintiffs can advocate and associate pursuant to the terms of

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the Constitution is always in the public interest.

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Though I want to emphasize that in the

And enforcing those rights, ensuring that

Beyond that, we've shown -- and I would point the
Court specifically to Reverend Udo-Okon's declaration.
SOUTHERN DISTRICT REPORTERS, P.C.
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This is

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ECF 7-2 at paragraph 17.

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critical and immediate need for legal advice on how to respond

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to debt collection lawsuits within his community."

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He says, and I quote, "There is a

So there is a need for the help that we'll provide.

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And I'll return to the undisputed points your Honor raised

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earlier that the default rate in this area is astronomically

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high; the rate of legal assistance is astronomically low, if

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something can be astronomically low; and CLARO, a leading

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provider that provides limited service assistance, can serve

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fewer than 2 percent of the people facing these actions.

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There's plainly need for help that plaintiffs would provide,

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and New York's decision to implement the answer form that we

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would be using shows as much.

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For its part, the state's opposition addresses much

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broader arguments in the public interest balancing, but none of

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them are directly responsive.

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arguments, and I'll address each of them in turn and then I'll

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conclude.

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So the state makes three

The first argument the state makes is that the state

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faults plaintiffs for bypassing the ordinary safeguards that

21

lawyers must satisfy, the hoops lawyers have to jump through in

22

order to practice commercially the full scope of the practice

23

of law, including the bar exam and character and fitness

24

regulations.

25

on a single discrete topic with fully informed consent, subject

But here, all we're talking about is free advice

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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to strict training and regulation that is reliably in clients'

2

best interests.

3
4

THE COURT:

Do you anticipate any character and

fitness requirements?

5

MR. NILES-WEED:

So, your Honor, Upsolve, plaintiff

6

Upsolve, has committed to vetting the justice advocates and

7

making them promise that the reason they are providing this

8

advice is in the best interest of the communities they're

9

serving.

But the rules, the strict definition of the program,

10

ensure that as long as the advice is being provided on those

11

terms, and that's all we're asking for, as long as the advice

12

is provided under those terms, it won't hurt anyone.

13

there's really no risk of --

14

THE COURT:

15

MR. NILES-WEED:

So

So there's no standards, then?
As I mentioned, Upsolve, plaintiff

16

Upsolve, has committed to vetting these people and requires

17

them -- and this is --

18
19

THE COURT:
though?

Vetting the people against what standard,

Do you have a standard?

20

MR. NILES-WEED:

21

THE COURT:

22
23

So I would direct your Honor to --

Have to be a high school graduate or

college graduate?
MR. NILES-WEED:

They have to be capable of providing

24

the advice on the terms laid out in the training guide.

25

the training guide at Exhibit, I believe it's -SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

And in

20
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1

THE COURT:

That's kind of circular, don't you think?

2

MR. NILES-WEED:

I don't think so, your Honor, because

3

what's going on is plaintiffs are requiring these people to

4

attest that they will only do the things laid out in the

5

training guide.

6

of the training guide, if they go beyond it, then they will be

7

subject to the state's ordinary regulatory authority because

8

we're only seeking protection for the metes and bounds of the

9

training guide.

10
11
12

If they do something that is outside the scope

THE COURT:

How would they know that they gave

inappropriate advice?
MR. NILES-WEED:

So in the complaint we describe how

13

the people receiving the advice are -- every encounter is being

14

tracked by Upsolve, and the people are being followed up with

15

to ensure that the advice was provided pursuant to the terms of

16

the guide.

17

any context.

18

informally providing is pursuant to the terms governed -- of

19

the rules governing the unauthorized practice of law?

20

we're talking about is this incredibly narrow --

21

And that's a question one could ask the state in
How does it know that the advice people are

THE COURT:

So all

Does the booklet advise the client that

22

they can resort to the Attorney General's Office if they

23

believe something has gone amiss?

24

MR. NILES-WEED:

25

So in listing additional resource, I

believe we list some resources for the Attorney General's
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

21
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1

Office.

If that would be the dividing line, that is something

2

that could be included in the guide.

3

it now, but we have -- and we include in the complaint a link

4

to what is a complaint form through Upsolve, but that could

5

easily be updated to say you can also contact the Attorney

6

General.

7

THE COURT:

8

MR. NILES-WEED:

9

I'm not sure it includes

All right.
I'll just make a few more points, if

that's all right.

10

I also want to discuss --

11

THE COURT:

12

MR. NILES-WEED:

13

THE COURT:

14

like to hear from Mr. Lawson.

Two more.
Two more?

Yes.

15

MR. NILES-WEED:

16

THE COURT:

17

MR. NILES-WEED:

Take some time for rebuttal.

Perfect.

I'd

Two quick points.

Sure.
The state makes two more points about

18

the public interest, and I'll explain to you why they shouldn't

19

govern here.

20
21

The first is --

THE COURT:

It's amazing how many lawyers can't count

to two.

22

MR. NILES-WEED:

23

THE COURT:

24

MR. NILES-WEED:

25

We'll see how I do.

OK.
One, so the state says we're usurping

the legislature's role and introducing uncertainty.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

That's not

22
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1

about this case, your Honor.

2

legislature from doing anything they want to do except regulate

3

our activity to the extent their regulation violates the First

4

Amendment.

5

narrow program.

6

bring, if they bring them, are not about us.

7

different case.

8

We're not stopping the

They can do whatever they want outside of this
And whatever future cases people want to
That's a

Second point, and final point, the state makes the

9

point again that there's no need for this program and there are

10

lots of alternatives, but again I would direct the Court to the

11

statement from the affidavit of plaintiff Reverend Udo-Okon at

12

ECF 7-2, paragraph 17.

13

for legal advice on how to respond to debt collection lawsuits

14

in his community.

There's a critical and immediate need

15

THE COURT:

Thank you.

16

MR. NILES-WEED:

So to conclude, the public interest

17

balancing favors allowing plaintiffs' activity which would help

18

facilitate the state's own interests, and more importantly,

19

plaintiffs' rights are protected on the merits of their twin

20

First Amendment claims, the free speech claim and the freedom

21

of association claim.

22

on the merits, which is the dominant consideration.

We've also

23

shown that an injunction is in the public interest.

The Court

24

should grant plaintiffs' injunction.

25

THE COURT:

So we've shown we're likely to succeed

Thank you.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Mr. Lawson.

2

MR. LAWSON:

Thank you, your Honor.

And again, I'm

3

Matthew Lawson from the New York State Attorney General's

4

Office, for the defendant, Letitia James.

5

I'd like to begin by emphasizing that a preliminary

6

injunction is an extraordinary remedy, and it's a remedy on

7

which the plaintiff carries the burden.

8

requirements, these plaintiffs must show that they are likely

9

to succeed on the merits and that an injunction is in the

Among other

10

public interest.

11

have failed to meet their burden of proof.

12

And these are the primary areas where they

With the Court's indulgence, and unless the Court has

13

any specific questions as to standing, I'd like to stand on the

14

positions we've taken in our brief on that point and move

15

directly to the First Amendment question on the merits.

16

THE COURT:

Yes.

17

MR. LAWSON:

So plaintiffs cannot possibly prevail in

18

this case because the First Amendment right that they're

19

asserting simply does not exist.

20

plaintiffs' characterization of the state's position in this

21

regard because at no time did the state simply limit its

22

argument to the alleged existence or nonexistence of an

23

unfettered right, as Mr. Niles-Weed said.

24

to a blanket or unqualified right, as these plaintiffs state in

25

their reply brief.

I'm a bit baffled by the

Nor did we limit it

Rather, there is no First Amendment right

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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to give legal advice or practice law in any respect.

2

Supreme Court precedent establishes that states have a

3

compelling interest in regulating the practice of professions

4

within their boundaries.

5
6
7

THE COURT:

And

How do you explain the Supreme Court's

decision in Holder against Humanitarian Law?
MR. LAWSON:

I'm glad you ask, your Honor, because I

8

did want to respond to that in detail.

That was a case that

9

these plaintiffs did not cite in their opening grief, although

10

one of the amici did.

11

Court's indulgence, I'd also like to hand up an additional

12

Eleventh Circuit published decision that was published --

13

decided just three months ago.

14

So I'd like to respond, and with the

The problem with Holder, the Holder case, is that

15

courts, including the Supreme Court, have always treated

16

professional conduct rules, including licensing provisions

17

governing who may practice a profession, as their own special

18

category for First Amendment purposes.

19

earlier that the state didn't cite any controlling authority on

20

the First Amendment point.

21

decisions the state cited was the Supreme Court's 2018 decision

22

in National Institute of Family and Life Advocates v. Becerra,

23

which was decided eight years after Holder.

24

the Supreme Court specifically held that states may regulate

25

professional conduct even though that conduct incidentally

And Mr. Niles-Weed said

That is incorrect.

Among the

And in that case,

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

25
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involves speech.

2

And if I may, the Eleventh Circuit decision in a case

3

called Del Castillo v. Secretary of the Florida Department of

4

Health, 26 F.4th 1214, is relevant to that point as well.

5

is the case I'd like to hand up, with the Court's indulgence,

6

if I may.

7
8

THE COURT:

Sure.

This

Do you have a copy for your

adversary?

9

MR. LAWSON:

And before I put on the mask so I may do

10

so, I want to point out I'll be handing up both the Eleventh

11

Circuit published decision and the underlying district court

12

opinion from the Northern District of Florida because, as is

13

often the case --

14
15

THE COURT:
plaintiff.

16
17

As long as you have copies for the

MR. LAWSON:

I do and one for your Honor's clerk as

well.

18

THE COURT:

19

MR. LAWSON:

20

THE COURT:

21

MR. LAWSON:

Great.

That will keep them busy.

So I will do that now.
Thank you.
In the Del Castillo case -- and I'd like

22

to direct the Court and the parties specifically to

23

page 1225 -- the holding from Del Castillo just three months

24

ago is that a statute that governs the practice of an

25

occupation is not unconstitutional as an abridgment of the
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

26
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right to free speech so long as any inhibition of that right is

2

merely the incidental effect of observing an otherwise

3

legitimate regulation.

4

I would assert that that is a natural and necessary

5

extension of the Supreme Court's recognition in 2018 that

6

professional conduct rules are their own unique category for

7

First Amendment purposes.

8

facts, the plaintiff in Castillo claimed that she had a First

9

Amendment right to give diet and nutrition advice, even though

And just so your Honor knows the

10

she was not a licensed dietitian in Florida.

11

court dismissed the First Amendment lawsuit, and the Eleventh

12

Circuit affirmed.

13

So the district

And one thing I want to point out as well is that the

14

Holder decision was explicitly raised before the district court

15

in Del Castillo.

16

to the district court decision, which is at 2019 WL 13141202,

17

at page 8, and that's the star pagination in Westlaw.

18

district court has this specific, direct quote.

19

court stated that "Holder is distinguishable because the

20

statute at issue in that case was not a generally applicable

21

licensing statute regulating entry into a profession."

22

that district court decision was affirmed a mere three months

23

ago by the Eleventh Circuit in the published decision in

24

Castillo.

25

And so if I may, I'd like to refer the Court

The

The district

And

So there has been no sea change in the long-running
SOUTHERN DISTRICT REPORTERS, P.C.
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27
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understanding that professional conduct rules, including rules

2

that govern who may practice a profession, are constitutional

3

as long as the effect on speech is only incidental.

4

So consistent with --

5

THE COURT:

Let me interrupt you.

Is there any doubt

6

that the Attorney General would enforce this law against the

7

plaintiffs?

8
9

MR. LAWSON:

It's hard to make a determination on that

question simply because it's a hypothetical question, and the

10

issue of the unauthorized practice of law is a fact-based

11

inquiry that depends on what actually happens in a given

12

circumstance.

13

THE COURT:

14

MR. LAWSON:

You think this is not the practice of law?
For the purpose of this motion, your

15

Honor, the state is not disputing that the conduct that they

16

state that they would participate in would likely constitute

17

unauthorized practice of law.

18

assessment of their arguments, not an advisory opinion on

19

hypothetical circumstances that haven't transpired yet.

20

THE COURT:

But, again, that is our

Well, you're an experienced counsel, and

21

you've tried these cases before.

If the plaintiff were to

22

organize itself in the way it says it's going to organize

23

itself and then renders the advice and follows its program that

24

it says it's going to follow, would that constitute the

25

unauthorized practice of law?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

28
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MR. LAWSON:

Based on my review of the case law, and

2

this is just my review, I think that if what the plaintiff is

3

doing is going beyond the mere distribution of relevant forms,

4

that the closer the plaintiff gets to rendering substantive

5

advice on defenses implicated by those forms, the more

6

likely -- in fact, it probably would fall within the

7

unauthorized practice of law statutes.

8

So we're not disputing that point for the purpose of

9

the motion, and I'm not sure in that scenario where our own

10

position diverges that much from what the plaintiff has laid

11

out.

12

of whether there is a First Amendment right to practice law in

13

any respect.

14

recognition that professional conduct rules are simply

15

different, they're unique, they're their own special category,

16

as far as I can tell, every single court, state or federal,

17

that has ever entertained the question of whether there is a

18

First Amendment right to give legal advice or to practice law

19

in any respect has rejected that lawsuit.

20

single case from any jurisdiction where a plaintiff goes into

21

court, asks the Court to sign some type of order enjoining an

22

unauthorized practice of law statute so that plaintiff can

23

practice law or give legal advice without a license.

24
25

But where we do disagree, obviously, is in the question

And consistent with this long-standing, uniform

I've never seen a

I should also note that the argument also fails in the
defensive context.

Often you'll see some type of enforcement

SOUTHERN DISTRICT REPORTERS, P.C.
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29
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action or prosecution for unauthorized practice of law, and the

2

defendant will assert as a defense to that type of prosecution

3

or enforcement action that he had a First Amendment right.

4

every single case, state or federal, although I believe all the

5

ones I've seen are state, but every state case where that

6

defense is made, the First Amendment argument is always

7

categorically rejected.

8
9

And

So the plaintiffs are in a bit of a conundrum here
because the position they're taking on the merits of this case

10

finds literally no support in any case whose facts are even

11

remotely analogous to those present here.

12

forced to do is they're forced to rely on factual context that

13

have nothing to do with unlicensed laypersons practicing law

14

without a license.

15

So what they're

And we got into that a little bit in Holder.

And

16

again, context matters.

The plaintiffs assert that, well, it's

17

not a problem that the facts here are not identical.

18

is a problem for these plaintiffs because context matters, and

19

we know that because the Supreme Court and federal courts have

20

consistently recognized that professional conduct rules,

21

including generally applicable licensing statutes that govern

22

who may practice a profession, are essentially sui generis,

23

they're their own category, and they have been identified as

24

such by the Supreme Court of the United States as recently as

25

2018.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Well, it

30
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So I'm not aware of any case from any jurisdiction

2

where a court ever held that an unauthorized practice of law

3

statute was something that needed to be scrutinized under the

4

strict scrutiny standard.

5

Court to apply today has literally no precedent in any case

6

that has anything to do with the unauthorized practice of law.

7

The standard that they're asking the

And to the notion that these statutes are somehow

8

content-based, I would like to direct the Court to a case that

9

these plaintiffs cited from 2020.

The plaintiffs say that a

10

law is content based if it is a regulation of speech that on

11

its face draws distinctions based on the message a speaker

12

conveys, and that's Barr v. American Association of Political

13

Consultants, Inc., 140 S.Ct. 2335, 2346 (2020).

14

of speech that on its face draws distinctions based on the

15

message a speaker conveys, "on its face" means that you look at

16

the express text of the statute and see what that statute does

17

and does not direct.

18

quotation from a statute that mentions any particular person's

19

message.

20

statutes do not favor one type of message over another.

21

do not target the communicative aspects of law, but they simply

22

direct who may and who may not practice the profession as a

23

general matter.

24
25

A regulation

Plaintiffs haven't cited a single

These are not statutes that suppress ideas.

These
They

And I want to just briefly go to the freedom of
association right.

The right to freedom of association also

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

31
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1

does not include any right to give unlicensed legal advice.

2

And somewhat bafflingly, Mr. Niles-Weed stated in his

3

presentation that the state doesn't mention the right of

4

association very much except to say that the facts are

5

different.

6

say about the line of cases beginning with NAACP v. Button and

7

its progeny.

8

laypersons practicing law without a license.

9

that two primary cases they rely on, which are NAACP v. Button

10

and In Re Primus, one from 1963 and the other from 1978, didn't

11

involve an unauthorized practice statute at all.

12

First Amendment challenges to anti-solicitation statutes.

13

the Court never addressed the question.

14

doing is it's saying that the First Amendment protects other

15

activities, and what the plaintiffs were trying to do in those

16

cases, they were trying to make a lawyer recommendation or

17

referral.

The plaintiffs here aren't trying to refer an

18

attorney.

They're trying to usurp the role of attorney by

19

practicing law without a license.

20

have nothing to say about that question.

21

Our opposition brief actually had quite a bit to

Those cases simply had nothing to do with
And the fact is

They involved
So

And instead what it's

And Button and Primus simply

And to further understand that point, one need look no

22

further than the Jacoby case, which the plaintiffs also cited

23

in their opening brief.

24

that the Supreme Court held that the First Amendment bears on

25

some situations in which clients and attorneys seek each other

The Second Circuit noted in Jacoby

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

32
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out to pursue litigation, and they specifically cite Button and

2

other cases for that point.

3

It is the case here that this is not a situation where

4

clients and attorneys are seeking each other out to pursue

5

litigation.

6

usurp the role of counsel altogether by empowering unlicensed

7

laypersons to practice law without a license.

8

simply no right of association here, and no such right has been

9

recognized by any court, let alone the Supreme Court.

10

This is a case where the plaintiffs are trying to

So there is

I just wanted to talk briefly about the tiers of

11

scrutiny analysis.

12

that these unauthorized practice statutes have is so incidental

13

that the Court can simply hold them constitutional without

14

proceeding to a separate tiers of scrutiny analysis.

15

does conclude that a tiers of scrutiny analysis is required,

16

the proper standard here would be the rational basis standard

17

and not strict scrutiny.

18

Our position is that any effect on speech

But if it

Under the rational basis standard, the Court need only

19

inquire into whether the state action is rationally related to

20

a legitimate governmental interest, and that's clearly the case

21

here.

22

compelling interest in the practice of professions, including

23

law, within their borders.

24

statute that is designed to maintain minimum standards of

25

competence, qualifications, and moral fitness is rationally

The Supreme Court has long recognized that states have a

And it goes without saying that a

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

33
M5CHUpsO
1
2

related to that overriding goal.
If I may, I'd like to proceed to the public interest

3

questions.

4

compelling question in a First Amendment case is the question

5

on the merits, and the court should focus most of its time on

6

that issue.

7

when public interest considerations and the equities strongly

8

weigh against the granting of injunctive relief, the court can

9

deny a motion for preliminary injunction on that basis alone.

10
11

Again, Mr. Niles-Weed stated that, really, the most

However, the Supreme Court has recognized that

It's the state's position that -THE COURT:

Why would I want to do that?

Here's a

12

situation that really cries out some sort of remedial effort.

13

There's a cycle of debt enforcement that is, I think in many

14

ways, shameless.

15

people who come in and they've got problems with a debt

16

collection.

17

more assistance.

18

what's wrong with this effort where it provides some kind of

19

added assistance --

You see it here in the court when you have

And it's an area that cries out for more help,
What's wrong with the state -- excuse me,

20

MR. LAWSON:

21

THE COURT:

22
23

The problem --- to people who need help?

I notice,

Mr. Lawson, you don't question that they need help.
MR. LAWSON:

They may very well need help, your Honor,

24

and the problem with the request for that relief is that what

25

it is is essentially a plea for legislative policymaking.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

This

34
M5CHUpsO
1

is a court of law.

2

determine whether there is some federal right that has been

3

implicated and to adjudicate legal questions respecting that

4

right.

5

requests for legislative policymaking, and in fact, that body

6

has addressed such requests.

7

requests for very specific exceptions to the prohibition

8

against the unauthorized practice of law.

9

speaking of the New York State legislature here.

10

This court's primary function is to

There is a body whose primary function is to address

It has explicitly considered

And of course I'm

So my opinion is that questions for -- or requests for

11

legislative policymaking are best directed to the state

12

legislature, and this court is bound to the consideration and

13

adjudication of constitutional issues involving the enforcement

14

of federally recognized rights, at least in a federal question

15

such as the instant one.

16

But the relief requested here would also harm the

17

public interest in other ways.

As the Court, I believe,

18

alluded to, there's no actual standard as to whether the

19

persons recruited to provide this type of unlicensed advice

20

would even be high school graduates.

21

even identify who would be providing the advice here if

22

injunctive relief were to be granted in their favor.

23

and again, accepting the Reverend Udo-Okon who would be one

24

such person, the state and this Court know nothing about the

25

character, experience, employment history, or level of

These plaintiffs don't

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

So again

35
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education of the persons that would be empowered to give this

2

advice if an injunction were to be granted in their favor.

3

in our papers we spoke briefly about --

4

THE COURT:

And

Have there been bills introduced in the

5

state legislature which would envision a program like the one

6

we're talking about here?

7
8

MR. LAWSON:

I'm not personally familiar with any such

bill, your Honor.

9

There's really no independent vetting of justice

10

advocates' qualifications or character and fitness at all.

11

the plaintiffs' primary response to the fact that there are

12

really no character and fitness evaluation of any kind, let

13

alone independent character and fitness evaluation, is to say

14

that, well, we've got this really good training manual.

15

fail to understand how a good training manual is an appropriate

16

screening mechanism to ascertain the suitability of character

17

and fitness of persons that would be practicing law or, in this

18

case, giving narrowly circumscribed legal advice.

19

And

And I

I'd also like to refer to the advocate amici, and I

20

refer there to the briefs of amici curiae consumer law experts,

21

civil legal services organizations, and civil rights

22

organizations at ECF 57, and that is one of the amicus briefs.

23

The advocate amici make a number of compelling points about the

24

harms that could be implicated here that even I was not aware

25

of.

They point out, for example, that debt collection lawsuits
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

36
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often implicate multiple areas of law.

2

point out that debt collection lawsuits can stem from a variety

3

of alleged debt, such as revolving lines of credit, retail

4

installment sales contracts, personal loans, student loans, and

5

other types of debts.

6

The advocate amici

And the advocate amici point out that different types

7

of debts are often governed by different statutory schemes, and

8

they often present unique legal issues.

9

that the defenses can be different, and this is an area where

And what that means is

10

actual expertise in handling the defense of debt collection

11

actions is really important.

12

that a defendant may have defenses that are different from the

13

ones that are in the form answer, and that if the defendant

14

fails to assert an applicable defense or fails to take the

15

steps required to move to dismiss, that that could be

16

detrimental or even fatal to the defense of the claims.

17

The advocate amici pointed out

Another point that we did not have the opportunity to

18

raise in the papers but which is also important is that the

19

plaintiffs here fail to identify what remedy consumers would

20

have if a consumer is harmed after receiving negligent advice

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from one of plaintiffs' justice advocates.

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presumably there would be no cause of action for legal

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malpractice because the persons to be providing this type of

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advice would not be lawyers.

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what other type of claims or remedy would be available.

For example,

And plaintiffs never identify

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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So in closing, your Honor, I would just like to say

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that -- one more point, which is that when you're balancing the

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equities, generally speaking, the Court weighs the harms on

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both sides.

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what is the alleged public need for this?

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identify certain problems that community members were having in

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their papers, they talk about harassing calls from debt

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collectors, and they talk about community members who never

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received any notice that they were ever being sued in the first

And something important to that consideration is
And the plaintiffs

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instance.

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any affidavit testimony from any community member who said the

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primary problem that I've experienced in my life or in my

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history with this creditor is that I haven't had a lawyer or

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somebody tell me how to fill out the form answer.

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identified that as their primary problem.

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here would not actually address the primary concerns identified

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by the community members these plaintiffs consulted, and it

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certainly wouldn't address the problem of sewer service where

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plaintiffs never receive -- or defendants never receive any

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notice that they're ever being sued in the first instance.

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What they don't talk about is they don't put forth

Nobody

So the injunction

And the advocate amici identify a number of nonprofit

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organizations that already give advice of the type here.

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identified organizations such as CAMBA Legal Services, District

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Council 37 Municipal Employees' Legal Services, Legal Services

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NYC, Mobilization for Justice, and the New York Assistance
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

They

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Group, and TakeRoot Justice.

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nonprofits that provide this advice, and plaintiffs don't

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identify a single occasion in which any of these organizations

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turned away a New Yorker who simply wanted advice on filling

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out a preprinted form answer in a debt collection action, which

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is the sole advice that plaintiffs are seeking leave to provide

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here.

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So there are a number of

So the public interest strongly weighs against the
granting of the requested injunctive relief, and the state

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respectfully contends that the motion for preliminary

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injunction is properly denied for that reason alone, in

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addition to the fact that there is no likelihood of success on

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the merits because the First Amendment right asserted here

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simply does not exist.

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THE COURT:

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Mr. Niles-Weed.

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MR. NILES-WEED:

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Thank you, Mr. Lawson.

Just a few points, your Honor.

not going to commit to a number, but I'll try to keep it low.
The first point I'll note is that the government in

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response to your question didn't dispute that they would

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potentially prosecute us.

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prosecution.

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standing inquiry.

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I'm

It was an opportunity to disavow

The state didn't do so.

It's relevant to the

The next point I want to discuss is the government's
reliance on cases talking about regulations of professional
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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conduct with a merely incidental effect on speech and explain

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why that's not the case here.

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places I can point your Honor that explain that distinction.

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I think there are a number of

So I would note that the government said in their

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presentation that there's no right to practice law in any

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respect, but in the Lawline case from the Second Circuit which

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the government cites, the court says, and this is 956 F.2d at

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1386, that there may well be activities, many activities,

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excuse me, which lawyers routinely engage in which are

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protected by the First Amendment and which could not be

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constitutional prohibited to laypersons.

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The Shell case from Colorado has a similar

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recognition.

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go on this is Primus, which was decided the very same day as

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the Supreme Court's decision in Ohralik.

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about how the state can regulate in-person solicitation for

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pecuniary gain.

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collective activity for a nonprofit purpose, for political

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aims, to increase access to courts, that issue that Ohralik was

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talking about does not apply.

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That's at 148 P.3d at 173.

And the real place to

And Ohralik talks

And what Primus says is when you're engaged in

And more recent Supreme Court cases likewise confirm

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that when the effect on speech is not incidental, which is the

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case here, First Amendment scrutiny applies.

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want to do is speech.

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is incidental.

All plaintiffs

There is no conduct to which that speech

So as applied to plaintiffs, we're talking
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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about a content-based regulation of speech.

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the government cites, makes clear that just because speech is

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done in the context of a professional relationship doesn't

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exempt it from heightened scrutiny.

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NIFLA, the case

And on the Eleventh Circuit case which was decided

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before the government's brief was submitted in this case, what

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they're talking about there is a broader swath of conduct

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relating to nutrition.

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plaintiffs are doing here, which is pure person-to-person

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They're not talking about what

speech, no adjacent conduct, subject to strict regulations.
Just a few more points.

I would -- so on the public

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interest question, the government points the Court to the

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Supreme Court's case in Winter which looks solely at the public

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interest balancing.

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risk to a fleet of the U.S. Navy on the one hand, and on the

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other hand, it was a number of plaintiffs who sought to protect

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the right of endangered species.

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that sometimes the balance is that extreme, but in that case,

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there were no constitutional rights at issue and not the

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delicate balancing that's required here.

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There, the public interest stakes were a

What the court recognized is

And on that balancing, as your Honor said, the

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plaintiffs are trying to help people who need help.

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asking the Court to do is follow the law as the government

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suggests, which requires, under the First Amendment speech

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cases and association cases, that plaintiffs' pure speech,
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

All we're

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provided for free, subject to strict restrictions is protected.

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I'll conclude just with two more quick points.

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first is that the government raised a concern about not knowing

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who is providing the advice or whether they even have high

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school diplomas.

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who don't have high school diplomas who are qualified to help

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people in need.

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only question relevant here is not who is doing the advising

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but what they're doing, and what they're doing is subject to

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the strict terms of the training guide attached to Exhibit B.

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So when you're outside that scope, you're not within the

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program, and so there are none of the concerns that normally

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motivate the regulation of the practice of law.

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real question here.

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The

First, I'll say there are plenty of people

And the second point I'll make is that the

And that's the

As your Honor said, this is a problem that cries out

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for more help.

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and would think they would find common cause with the state and

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its amici, what we're trying to do is to take the state's form,

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which the state plainly believes is adequate, to help

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self-represented individuals respond to these lawsuits, and

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we're helping to make the state form better.

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What plaintiffs want to do and plaintiffs seek

So the question on the public interest balancing is

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not whether there are other problems that plaintiffs could be

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solving, like the issue of sewer service.

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whether there are other people who might be solving this

The question is not

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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problem or helping to solve this problem, which there are, and

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plaintiffs respect and appreciate the amazing work done by the

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amici and other organizations, but the status quo as it sits

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today is that there are 88 percent of people who default in

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lawsuits like this, and the question for the Court on the

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public interest balancing is a narrow one.

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88 percent default rate, will people be better off with the

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narrow advice that plaintiffs are seeking to provide, or will

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they be worse off?

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Given that

So there might be a bunch of other problems lurking

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all around these issues, but all we want to do is exceptionally

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narrow, and it will be in the public interest.

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importantly, it's protected by the First Amendment.

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THE COURT:

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Mr. Lawson, you want to say anything?

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MR. LAWSON:

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18

And most

Thank you.

I just have a couple brief points on the

merits of the First Amendment question.
Mr. Niles-Weed was responding to my point that

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professional conduct rules with only an incidental effect on

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speech are constitutional and that such professional conduct

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rules have been recognized to be a separate category, both by

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the Supreme Court and others.

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Mr. Niles-Weed cited to cases.

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opinion in Lawline v. American Bar Association, as well as the

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Colorado Supreme Court's opinion in People v. Shell.

In rebuttal to my point,
He cited the Seventh Circuit's

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

And let

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me just state at the outset that in both such cases, the court

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squarely rejected the First Amendment arguments that the

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plaintiff was making.

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And far from rebutting the state's argument that

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professional conduct regulations that have a merely incidental

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effect on -- of observing an otherwise legitimate regulation,

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the People v. Shell case actually dismissed the case -- or,

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actually, it rejected a defense, but it rejected the First

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Amendment argument on that precise basis.

On page 173 and 174,

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the Supreme Court of Colorado explicitly held that the

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unauthorized practice statute was "merely the incidental effect

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of observing an otherwise legitimate regulation."

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So, again, I would just assert that professional

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conduct rules, including generally applicable licensing

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statutes that govern who may practice a profession, are their

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own category for First Amendment purposes.

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cases from completely different context is simply not the

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proper approach to First Amendment jurisprudence in this area.

And resorting to

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Thank you.

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THE COURT:

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I want to thank the parties for the cogency of the

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23

Thank you.

briefing and the oral advocacy.

It was very wonderful to see.

I also noticed the civility between the plaintiff and

24

the defendant, and civility is too often lacking in today's

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hurly-burly of litigation.

So thank you for that.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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We'll have a decision for you shortly.
much.

Case is adjourned.
(Adjourned)

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Thank you very