First, Judge Paul Crotty held that New York’s law prohibiting the unauthorized practice of law could not survive strict scrutiny in an action brought by Upsolve, a company dedicated to providing non-lawyer assistance to consumers sued for debt collection. The argument was that the law violated the First Amendment by prohibiting speech used to assist consumers to challenge debt collection suits. The Second Circuit then reversed, holding that intermediate scrutiny applied, as the law was content neutral.

The case then went back before Judge Lewis Kaplan, who held that New York’s UPL law easily survived intermediate scrutiny, holding that the state’s interest in prohibiting non-lawyers from the practice of law was “important” and “real,” and that the law did not burden speech any more than was necessary to achieve the state’s important interest. Fair enough.

Under the first prong of this standard, the government must show that the challenged law seeks to address governmental interests that are “important” and “real” (as opposed to “merely conjectural”) and that the regulation will address the problem “in a direct and material way.” Under the second prong, the government must show that the regulation does not “burden substantially more speech than is necessary” to further the government’s interests. The regulation need not be “the least speech-restrictive means” of addressing the problem.

Rather, a court must afford the government a certain “latitude” and may not invalidate a law “simply because [it] concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” So long as a regulation is narrowly tailored to advancing governmental interests that “would be achieved less effectively absent the regulation,” a court must defer to a government’s reasonable determination about “how much protection of [those interests] is wise and how that level of [protection] is to be attained.” It follows that the validity of a content-neutral regulation “depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interests in an individual case.”

Before reaching his decision, however, Judge Kaplan provided a recitation of the circumstances giving rise to Upsolve’s existence that is, or at least should be, shocking to any lawyer who gives a damn about anything other than himself.

By some accounts, a shockingly high number of debt-collection lawsuits against consumers result in default judgments. In 2009, the Federal Trade Commission hosted a series of roundtables with attorneys, judges, consumer advocates, and other repeat players in the world of debt collection. Participants in those sessions estimated that consumers sued on past-due debts fail to appear or otherwise defend themselves – and thereby lose by default – in 60 to 95 percent of cases. The complaint alleges similar figures for New York, contending that debt collectors obtain default judgment roughly 70 to 90 percent of the time.

Sometimes consumers default because they are not aware a lawsuit has been filed against them. Indeed, plaintiffs submitted declarations from three New Yorkers who say that is exactly what happened to them. But other times a consumer may default (or simply lose the case on the merits) because they lack the knowledge or resources to hire a lawyer or properly defend themselves. In that regard, the complaint alleges that “[a] restricted supply of free or low-cost civil legal assistance” is “prevent[ing] low-income New Yorkers from understanding and accessing their legal rights when they are faced with debt collection actions.” All of this is particularly problematic, plaintiffs say, because many debt-collection lawsuits are meritless for simple reasons, such as the debt already having been paid or discharged in bankruptcy, the statute of limitations having run, or the defendant-consumer never having borrowed the money in the first place.

Debt collection suits tend to have one common denominator. The defendants are poor. They tend to be poorly educated. They tend to be poor communicators. They tend to be poor at facing responsibility. They tend to have little money. They are poor. Even if they knew about the suit, and they wanted to address the suit, they can’t afford a lawyer even if they knew of a lawyer to turn to.

Judge Kaplan is certainly correct in holding that the New York statute prohibiting the Unauthorized Practice of Law does not violate the First Amendment by proscribing non-lawyers from giving legal advice. And yet, this leaves a very real and serious problem without any hope of a resolution.

Past efforts to come up with alternatives to fully-admitted lawyers, like Washington’s 3LT initiative, have been tried and failed. No one wanted them. No one wanted to be them. Providing civil legal aid to the poor is very expensive, and when there is a dearth of funding to provide criminal indigent defense, it’s an unacceptable drain on very limited resources. The fact is that people do not want to pay taxes so that poor criminal defendants can have lawyers, no matter what the Constitution requires. And pro bono suffers from the same problems it always has, that well-intended good deeds aren’t enough to fill the gap, and many lawyers are struggling to survive themselves.

The irony here is that many of these consumer debt suits are pointless anyway. You can’t get blood from a rock, and these defendants have no attachable bank accounts or assets to pay a judgment regardless. Nonetheless, these judgment affect their ability to get housing and jobs, keeping them in a cycle of poverty and preventing them from paying their bills, debts and judgments. This is not a viable situation, even though non-lawyers still can’t practice law to fill the gap.