5/27/2022 Update: The District Judge has ruled in favor of Upsolve and its community partners on their claim that as applied, New York’s UPL ban violates their First Amendment speech rights. The opinion is here.
Stanford’s Professor Nora Freeman Engstrom discusses the lawsuit filed recently in the Southern District of New York by Upsolve, a legal technology nonprofit, against the State of New York. The suit alleges that New York’s unauthorized practice of law restrictions violate the First Amendment.
What is driving this lawsuit?
We’re in the grip of an urgent access to justice crisis. In state courts, in a shocking three-quarters of civil cases, at least one side is unrepresented—consigned to navigate the often baffling legal system alone, without guidance or assistance.
Or, another perspective on the problem: The World Justice Project ranks the United States 126th out of 139 countries, when it comes to the accessibility and affordability of civil justice. That puts us behind, among others, Uzbekistan and Angola, and it places us dead last among countries in our income bracket.
This is a problem throughout the United States—and New York is no exception. In New York, where the challenge was filed, one study indicates that roughly:
- 98 percent of tenants are unrepresented in eviction cases;
- 96 percent of parents are unrepresented in child support matters; and
- 44 percent of home owners are unrepresented in foreclosure actions.
Is the lawsuit focused on one area of law in particular or on civil justice generally?
The lawsuit focuses on consumer debt—a tremendously important area. Whether from mortgages, credit cards, payday lenders, or student loans, Americans are increasingly indebted. Partly as a consequence, consumer debt actions—lenders going after reportedly delinquent borrowers—currently comprise a large and growing portion of state court caseloads. According to Pew Charitable Trust: “From 1993 to 2013, the number of debt collection suits more than doubled nationwide, from less than 1.7 million to about 4 million, and consumed a growing share of civil dockets, rising from an estimated 1 in 9 civil cases to 1 in 4.” Seen through one lens, these collection cases are trivial; they typically involve less than $10,000. Through another lens, though, they can be life changing, as borrowers may face wage and bank account garnishment, seizure of personal property, and even potential incarceration.
Currently, the vast majority of borrowers (more than 90 percent) are unrepresented. There’s no right to counsel in these cases (or in civil cases generally), and other possible sources of representation (such as legal aid lawyers or pro bono counsel) are overwhelmed and thus practically unavailable.
So, what is driving this lawsuit is the tidal wave of unrepresented borrowers coming face-to-face with represented debt collection companies.
If the problem is unrepresented litigants, why isn’t the answer more lawyers or a deeper commitment to pro bono representation? Why are unauthorized practice of law rules even implicated?
The short but dispiriting answer is that the current level of unmet need swamps our attorney supply. Even if we all tripled or quadrupled our pro bono commitments or tripled or quadrupled our legal aid funding, that wouldn’t make a dent in the problem.
Once we swallow that bitter pill, we see that unauthorized practice of law rules (UPL rules for short) are implicated because these rules—which, in many states, make it a crime for a non-lawyer to provide legal advice—foreclose the option of licensed lay practitioners. And, with that middle option off the table, UPL restrictions effectively force litigants through one of two doors: hire Cadillac counsel (door number 1), or forego representation (and often, action) altogether (door number 2). Given that most people (including, almost by definition, those facing debt collection actions) simply cannot afford door number 1—they don’t have thousands of dollars to retain a licensed attorney—UPL restrictions, then, effectively consign millions of individuals to go it alone or, more often, do nothing at all and default. UPL restrictions, then, aren’t some esoteric afterthought; they lie at the heart of the current catastrophe.
What is Upsolve, and why is it bringing a federal lawsuit suit against New York State?
Upsolve is a nonprofit legal technology organization that offers tech-based services to consumers who are facing financial trouble. It’s currently seeking to expand its services “to train professionals who are not lawyers to provide free legal advice on whether and how to respond to a debt collection lawsuit.” The problem, though, is that, under New York law, the provision of that legal advice—by non-lawyers—would run right smack into the state’s UPL restrictions. Recognizing this, Upsolve has filed this lawsuit against New York’s Attorney General. Narrow in scope, the lawsuit doesn’t seek the wholesale elimination of UPL restrictions. Rather, in the form of declaratory and injunctive relief, it simply seeks assurance that Upsolve and its community partners can offer free legal advice without facing criminal or civil penalties.
Is there any precedent for a challenge like this?
Yes. An early and seminal case dealt with the publication of a book, “How to Avoid Probate!” by a nonlawyer, Norman Dacey. Dacey’s book slammed the probate system in general and probate lawyers in particular, and its publication (predictably) ruffled feathers. Various bar associations filed suit, seeking to enjoin the book’s publication. After prolonged litigation, Dacey prevailed. But, the New York Court of Appeals decision that sided with Dacey was narrow in scope, as it relied on the fact that the book furnished generalized advice and did not give specific advice to any particular person. The opinion thus drew a line between “publication of a legal text which purport[s] to say what the law is” and the “essential of legal practice [which is] the representation and the advising of a particular person in a particular situation.”
Upsolve’s complaint seeks to push the law several steps further. The nonprofit is not pretending that anything it proposes to do is generalized or informational; rather, it’s seeking to provide individualized advice to particular persons. The nonprofit, then, is asking a federal court to squarely take on the breadth of the UPL rules, in the face of incontrovertible evidence that there’s significant unmet need alongside the fact that Upsolve proposes to offer free (rather than for-profit) legal assistance.
Does Upsolve’s lawsuit fit into a larger story about the regulation of the legal profession?
It does. We started this discussion by noting that our civil justice system is in crisis. Upsolve’s complaint does a good job of illustrating the depth and breadth of this crisis and how it severely impacts millions of Americans. It also presents what we know to be an important, if partial, solution: allow more people to do some of the things that only lawyers can do now.
Upsolve’s complaint against New York comes at a time when states are beginning to consider how their rigid restrictions on law practice are impacting—and disserving—their citizens. Indeed, as one recent article put it: “[T]he market for legal services is undergoing its most dramatic reexamination in decades.”
Several states, including Utah and Arizona, are already experimenting with loosening the usual rules around UPL or non-lawyer ownership of law firms in order to welcome new types of providers into the system. California, Michigan, North Carolina, and a few other states are actively considering similar reforms (though California’s efforts are facing stiff opposition). The Upsolve complaint comes at an auspicious time and may present another crack in the monopoly lawyers hold over legal help in America.
Nora Freeman Engstrom is Stanford’s Ernest W. McFarland Professor of Law the Co-Director of the Stanford Center on the Legal Profession.