There is little difficulty distinguishing people who hold themselves out to provide legal advice for a fee or appearing before a judge in court as “practicing” law. But what about your aunt or the neighbor in the back telling you what you should do about a lawsuit? Surely, they’re not committing a felony, but just kibitzing, as folks are wont to do. Between the two, however, is a no man’s (person’s?) land consisting of people to whom one turns for advice when confronted with problems who neither sell their services nor passed the bar.
Are they criminals? Should they be?
A civil rights lawsuit pending in New York in the United States Court of Appeals for the Second Circuit, Upsolve v. James, provides a prime example of the broad sweep of these laws.
Brought by the nonprofit organization Upsolve and the Rev. John Udo-Okon, a pastor in the South Bronx, the case focuses on debt collection lawsuits. Hundreds of thousands are filed annually in New York State, and millions more across the country. Many people sued in these cases cannot afford a lawyer. With help, many could defend themselves by explaining, for example, that the wrong person was sued, the wrong amount was sought, the wrong creditor claimed to own the debt, the lawsuit was filed too late and the like. But most people do not respond to the suits, allowing creditors to obtain default judgments and then garnish people’s wages and seize their assets.
To be fair, the word “many” is too vague for comfort here. While many get sued, few have any defense. “I didn’t have the money” is not a defense, contrary to popular belief. Most of these suits are brought in small claims court, which is very informal and no lawyer is needed. Much of the time, defendants in these suits just don’t appear and plaintiffs get a default judgment upon which they’ll never collect.
Often, the defendants’ addresses for service are old and they never receive notice. Often, they’re in the wind. Sometimes, they’re on the street. People who fail to pay one bill sometimes fail to pay many, like the rent. And some people just don’t pay their bills because they don’t want to. They also don’t want to go to court to explain this because it never comes off well to small claims court arbs.
But what about the cohort of defendants who aren’t deadbeats but just don’t know what to do when they receive a summons?
Mr. Udo-Okon wants to help members of his congregation sued in debt collection cases, and he has received training from Upsolve, a civil rights group focused on helping low-income New Yorkers respond to debt collection lawsuits, to help him do this well. More than 100 community residents have said they would want his free legal help. If permitted, he would download a fill-in-the-blank form from the New York courts’ website, then explain to people how to complete and file the form. That’s all. But even this would violate the state’s unauthorized practice bans.
That Pastor Udo-Okon wants to help his flock is understandable, just as his being trained by Upsolve is commendable. He did the work to learn how to be as legitimately helpful as a non-lawyer can be, and he appears careful not to overstep the bounds of his knowledge. But he evoked the wrath of New York AG Tish James, likely for doing his job too well, who now wants to shut down Upsolve and silence him for the unlawful practice of law. But what of his free speech?
A Federal District Court judge found last year that the unauthorized practice prohibition likely infringes on Mr. Udo-Okon’s First Amendment freedom of speech, and authorized him to begin helping people while the case is on appeal. The order applies only to the plaintiffs in this case, but if the Court of Appeals upholds it and endorses the district judge’s analysis, groups such as Upsolve can explore other ways to train people to take on their low-income communities’ vast unmet legal needs.
The bold-face quoted sentence is where the toes go over the line. Is small claims debt collection the same as child custody, landlord/tenant, estate planning, criminal defense? They all have common aspects, but they also have significant differences. Bad advice, coupled with the imprimatur of being “professionally” trained without being legally trained can be disastrous. And if Upsolve wants to play the DoNotPay game of expanding from a niche where the law is pretty simple and the downside small compared to higher stakes legal games, can a line be drawn to allow them some leeway without giving them carte blanche to play fake lawyer?
Many would agree that the Constitution should give everyone the right to give and receive free advice about life’s challenges, including legal problems. The Constitution requires that laws censoring speech must be narrowly tailored to serve a compelling purpose. States can protect people from bad or fraudulent advice, but not by forbidding everyone but a lawyer from helping others in their community with their legal problems. That goes too far, because people who do not have a lawyer can benefit from free advice about common legal problems from someone with training or experience they know and trust, even if that person is not a lawyer.
It’s true that many would, but that merely invokes the 60 Million Fly Rule.* It’s a non sequitur to argue that because people are too poor to hire lawyers the advice of non-lawyers magically becomes legally sound. Whether it’s beneficial depends on whether it’s accurate and helpful, and a oft-ignored problem is that sound limited advice may be good enough to get people embroiled in legal battles but not good enough to get them out unscathed, leaving them worse off than when they started.
The sort of help being proffered by Pastor Udo-Okon arguably falls beneath the level that most would consider the practice of law. It involves law, but at such a basic level that it really doesn’t implicate any level of legal skill that falls within the ambit of regulated speech. But then, if it treads an inch further, will it cross the line? When someone asks an entirely reasonable question beyond what the pastor is trained to answer, has his advice gone too far? Is there any clarity to the line such that he knows his limits and won’t stray beyond them? Does Upsolve recognize its limits or will its zeal to help cause it to push the envelope to the detriment of those it seeks to help? Will good intentions make its advice, its exercise of free speech, any less dangerous to those who rely on it?
*There was a poster that was popular back when I was in college that said “60 million flies can’t be wrong: Eat shit.”
While there’s a strange differentiation between commercial speech and other speech, the good reverend seems to just be helping folks for the niceness of it all.
I would often tell people that simply responding in any way to a dunning notice is most important, because ignoring them is how they win. Did I violate the UPL section?
If not, to borrow from the old joke—are we not just haggling over the price?
What’s the purpose of UPL?
We let people defend themselves in court, so clearly it’s not about preventing shitty lawyering.
Instead of focusing on what UPL *is* (engaging in line-drawing forever), I’m wondering if there’s a sufficient way to have a third party be informed of the pitfalls and dangers to an extent suitable for the actions of Rev. John Udo-Okon to have little consequence.
Perhaps an “informed consent” version before any gray area legal advice is offered?
Or to put it into SJ parlance: When it comes to UPL, what’s the rubric and what’s the rationale?
Does this actually violate the objective?
The best legal advice we once received: “Just tell the judge you will make a contribution to her favorite charity!”
Here’s a good one from the director of our local ACLU chapter: “Our resources are limited; we cannot help everyone who gives us a call or walks in the door.” Lawyers, lawyers everywhere,… but none are available when you need one. They make themselves scarce by golly?!?
Thank God we don’t live in New York. Do not have a high opinion of the 2nd Circuit either. Hope Tish loses.
As greater numbers of income-challenged people turn to untrained persons, AI, sovereign citizens and the magic of the Internet for their legal advice it should lead to some interesting cases. Maybe they will be better off than if they just ignored the court proceedings. Maybe in time, there will come to be some form of malpractice liability for these unlicensed providers. Of course, the income-challenged might need unlicensed persons to assist them with that too.
It’s one thing to protect the public; it’s another to protect the guild. So long as people like this pastor disclaim special expertise and do things like “here’s the link to the court’s website and forms library,” or “read everything on the papers you get and if you don’t understand, ask a professional or the legal aid clinic or local law school for some help,” I think the watchdogs should follow the sound referee rule, “no harm, no foul.”
There’s nothing magic about the Bar number on the certificate over my desk. If my advice were guaranteed to be “accurate and helpful” then why would I carry malpractice insurance and why is the first section of the Bar Bulletin I turn to the one captioned “Discipline.”*
There’s certainly a likelihood that my advice is more accurate and helpful than that of someone trained by Upsolve, but it’s also likely more accurate and helpful than someone with a ’23 Bar number. Setting aside that there are ’70 and ’80 Bar numbers popping up in that aforementioned Discipline section.
And in Oregon, at least, UPL is being looked at for downwatering – there’s discussion about allowing paralegals to do everything for a client (in certain areas) BUT speak up at counsel table. Why the OSB wants to draw a line there I’m not sure.
Finally, the point about “…sound limited advice may be good enough to get people embroiled in legal battles but not good enough to get them out unscathed, leaving them worse off than when they started,” but, again, does not always seem to be limited to UPL by non-lawyers. Plenty of lawyers rah-rah clients into taking actions that end up benefitting no one but the lawyer(s) by the end of the game, so it’s hard to say that UPL meltdowns are exclusive to those without Bar numbers.
Perhaps it would be better to spend time and resources focusing on the quality of the legal advice, regardless of source, and consider some sort of corrective penalty for those who offer such advice to the detriment of those who take it.
*and it’s a big one this month
PS: Never having heard the 60 Million Fly Rule, I both want one of those posters AND need to use that informing as an excuse to buy our host a beverage via the yellow button…
There are two things about lawyers: First, they’re theoretically subject to the Rules of Professional Conduct. Second, they can be sued for malpractice. It’s not much, but better than the remedies available for your next door neighbor’s bad advice.
Absolutely agreed! Though in my case, it’s “file a claim with the Professional Liability Fund” which is my malpractice insurance.