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.”