From Judge Paul Crotty’s decision yesterday in Upsolve, Inc. v. James (S.D.N.Y.); not sure that this will survive on appeal (as the court notes, appellate courts have upheld such limits on nonlawyers’ giving people legal advice), but it seems important and much worth following:
[A]n abstract “right to practice law” is not at issue in this narrow challenge. The Court does not question the facial validity of New York’s UPL rules to distinguish between lawyers and non-lawyers in most settings, and to regulate all sorts of non-lawyer behavior. Instead, the issue here is a narrow one: whether the First Amendment protects the precise legal advice that Plaintiffs seek to provide, in the precise setting in which they intend to provide it. The Court holds that it does….
[L]ower courts have overwhelmingly concluded that UPL statutes regulate professional “conduct” and merely burden a non-lawyer’s speech incidentally. These authorities, however, have never addressed the narrow—and novel—question the AJM program presents here.
For example, many UPL cases have focused on specific “conduct” that non-lawyers sought to undertake. Non-lawyers have been excluded from “drafting” pleadings and “filing” legal documents. Conduct could also include “representing” clients in a courtroom or proceeding. These conduct-focused cases are inapposite, as Plaintiffs do not seek to do any of these activities. The AJM program does not allow Justice Advocates to file pleadings, represent clients in court, or handle client funds. Their counsel is limited to out-of-court verbal advice.
Other distinguishable cases have addressed facial challenges to UPL rules. Rather than focusing on discrete types of speech that non-lawyers could provide, these cases have concluded that the abstract practice of law does not implicate First Amendment scrutiny as a general matter. That approach would be overinclusive here, given Plaintiffs bring an as-applied challenge about spoken advice they would give to clients. Moreover, these cases have been called into serious doubt by NIFLA v. Becerra (2018), which applied intermediate scrutiny to professional conduct regulations at the very least—not rational basis review, or indeed complete lack of First Amendment scrutiny, as the Attorney General proposes.
NIFLA provided an example of a professional conduct regulation that only incidentally burdened speech from Planned Parenthood of Southeastern Pa. v. Casey (1992). In Casey, doctors were required to provide information to a woman deciding whether to proceed with an abortion—a so-called “informed-consent” provision—before performing that procedure. Although the informed-consent provision affected what licensed medical providers were required to say in specific contexts with their patients, the NIFLA Court emphasized the regulation only “incidentally burden[ed]” speech in the context of professional conduct: before a medical procedure. By contrast, the state regulation in NIFLA required organizations offering pregnancy services (but not provide abortion procedures) to provide notice about abortion options in the state, untethered from any larger conduct-dominated context; in other words, it “regulate[d] speech as speech,” not speech as an auxiliary to a professional procedure
The professional conduct in Casey—and its “incidental” effect on speech—is far removed from a UPL regime that, as applied to these Plaintiffs, only affects speech: barring legal advice by non-lawyers. Just as the Court distinguished the notice requirement in NIFLA from the informed-consent provision in Casey, here the bar on legal advice “is not tied to a procedure at all. It applies to all interactions between [a non-lawyer] and [their] clients, regardless of whether [legal advice] is ever sought, offered, or performed.”
Overall, none of these cases have dealt with (1) an as-applied challenge to a UPL statute where (2) a plaintiff sought to give pure verbal speech. That combination is novel. And where both these elements are present, modern Supreme Court doctrine has foreclosed a reductive approach where laws that are generally directed at conduct would avoid First Amendment scrutiny when applied to a particular plaintiff’s speech.
Instead, for as-applied challenges, the Court in Holder v. Humanitarian Law Project adopted a “refined” approach to the speech/conduct problem. The plaintiffs in Humanitarian Law challenged a statute that forbade providing “material support” to designated terrorist organizations, which included “expert advice or assistance” that was “derived from scientific, technical or other specialized knowledge.” The government, like the Attorney General here, argued that the law permissibly regulated the conduct of providing material support, and that any incidental effect on plaintiffs’ own speech was not actionable under the First Amendment. The Court disagreed with the government, and in so doing, set forth the proper analytical framework for this case.
The Humanitarian Law Court set forth the following rule: for as-applied challenges, courts ask whether plaintiffs’ own speech is directly or incidentally burdened, not whether the statute on its face imposes an incidental burden on speech. Thus, if a “generally applicable law” is “directed” at a plaintiff “because of what his speech communicated”—that is, the communication violates the statute “because of the offensive content of his particular message,” then that law directly burdens plaintiff’s speech…. “[T]there is a real difference between laws directed at conduct sweeping up incidental speech on the one hand and laws that directly regulate speech on the other. The government cannot regulate speech by relabeling it as conduct.” … At that point, the burden is no longer “incidental.”
Although it diverged on other issues, the Humanitarian Law Court unanimously concluded the giving of expert advice was speech, not conduct. On its face, the statute was “described as directed at conduct” of providing material support, “but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.” …
That logic applies seamlessly to the statute at issue here. On its face, New York’s UPL rules “may be described as directed at conduct” of acting as a lawyer, “but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.” In other words, Plaintiffs’ violation of the law “depends on what they say” to their clients. If Justice Advocates provide non-legal advice about a client’s debt problem (by, for example, advising that person to cut down on spending to pay off debts), the UPL rules do not apply. But if they provide legal advice about how to respond to the client’s debt problem (by advising that person on how they should fill out the State-Provided Answer Form, based on their specific circumstances), the UPL rules forbid their speech. Their actions are therefore, by definition, content-based speech.
Concluding that Plaintiffs’ legal advice is content-based speech is not only in line with modern First Amendment authority; it is also the intuitive result. At its core, Plaintiffs’ action is indisputably speech, not conduct. “If speaking to clients is not speech, the world is truly upside down.” The Court shall not ignore common sense by construing Plaintiffs’ legal advice as something it is not.
The UPL rules are also speaker-based, and “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference.” Importantly, as in Barr, there is such a content preference, because the UPL rules do not merely focus on the identity of the speaker, but also “focus on whether the [speaker] is speaking about a particular topic.” …
Courts endorsing the theory that licensing requirements can permissibly burden speech have relied on Justice White’s concurrence in Lowe v. SEC (1985). In that case, which involved an investment advisor who wrote an advice column in securities newsletters, Justice White drew a distinction between advice offered to the general public versus advice personalized to a particular client to infer that licensing regimes do not pose major First Amendment problems. He began by defining what he believed “the practice of a profession” to be: where someone “takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances ….” So far, so good. Lowe, after all, was about whether the investment advisor had given general or client-based speech. But Justice White then went further to reach a constitutional conclusion about licensing regimes. He stated that, so long as a “personal nexus” exists between a professional and client, the government can “enact generally applicable licensing provisions limiting the class of persons who may practice the profession” without infringing on anyone’s freedom of speech.
Some courts have extended Justice White’s proposed “personal nexus” test to legal advice offered to clients by unlicensed laymen. See, e.g., Matter of Rowe (N.Y. 1992) (“The courts may, in the public interest, prohibit attorneys from practicing law and that prohibition may incidentally affect the attorney’s constitutional right to free speech by forbidding the giving of advice to clients.”). More generally, some circuits—but, notably, not the Second Circuit—have crystallized Justice White’s concurrence to uphold other types of licensing regimes that impact speech. See, e.g., Del Castillo v. Sec’y, Fla. Dep’t of Health (11th Cir. 2022) (rejecting a non-licensed person’s free speech bid to give dietary advice).
Despite these cases, this Court is not persuaded by Justice White’s concurrence in Lowe, and by extension, the assumption that licensing regimes can bar non-professionals’ speech without any constitutional consequence. Justice White’s discussion of licensing—joined only by two other Justices—was unquestionably dicta, and has never been referenced by the Supreme Court or the Second Circuit….
Moreover, the Supreme Court recently undermined Justice White’s theory that licensing requirements are somehow sui generis under the First Amendment merely because they target professionals. Under Humanitarian Law, the mere fact that speech “derive[s] from ‘specialized knowledge'” does not remove it from the First Amendment’s ambit. And NIFLA rejected a lower-court doctrine—a so-called “professional speech” doctrine—that closely resembled Justice White’s concurrence in Lowe. Some circuits had “define[d] ‘professionals’ as individuals who provide personalized services to clients and who are subject to ‘a generally applicable licensing and regulatory regime.'” But the Supreme Court in NIFLA noted that such regimes would “give the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement,” an untenable result….
To be sure, there are special categories of pure speech that the government can regulate without scrutiny. But legal advice does not appear to be one of them. Those special categories—for example, defamation, incitement, fraud, and obscenity—are tightly limited in number. To qualify, a type of speech must be historically rooted in a tradition of regulation going back to the Founding.
Legal advice lacks that clear history of regulation. In the colonial period, courts “adopted UPL rules to control those who appeared before them,” but “nonlawyers were free to engage in a wide range of activities which would be considered UPL today, such as giving legal advice and preparing legal documents.” That practice continued unabated through the post-colonial and Reconstruction eras. “Simply put, the historical practices at the time of the ratification of the First and Fourteenth Amendments show that the rendering of personalized advice to specific clients was not one of the ‘well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any constitutional problem.'” …
As a content-based regulation of Plaintiffs’ speech, the UPL rules trigger strict scrutiny. Strict scrutiny “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” … “A court applying strict scrutiny must ensure that a compelling interest supports each application of a statute restricting speech.” Likewise, “[i]f a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.” …
In the abstract, New York undoubtedly has a compelling interest in enforcing the UPL rules. In general, “[s]tates have a compelling interest in the practice of professions within their boundaries, and that as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.” In the context of the UPL rules, New York has a “well-established interest in regulating attorney conduct and in maintaining ethical behavior and independence among the members of the legal profession.” Such rules are designed to protect the public “from the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions.” Beyond the consumer-projection justification, the State also has an interest the UPL rules’ promotion of judicial integrity and efficiency, as lawyers are “officers of the courts.” Given these compelling interests, it is little wonder that the UPL rules have consistently withstood legal challenges.
Yet these justifications for the UPL rules appear less compelling in the context of Plaintiffs’ specific, narrow mission. Plaintiffs’ program has anticipated many of the State’s consumer protection concerns and erected preventative limits on what Justice Advocates may do. Justice Advocates must attend a training—designed by lawyers—and be approved under the AJM program criteria. Relying on Plaintiffs’ limited legal training would logically protect clients’ interests better than trusting those clients to complete their own forms pro se, with no legal training at all. And there is some common-sense truth to the notion that a non-lawyer “who has handled 50 debt collection matters, for example, would likely provide better representation than a patent lawyer who has never set foot in small claims court and last looked at a consumer contract issue when studying for the bar exam.”
[Advocates] must [also] abide by State ethical guidelines for assisting clients, including for conflicts of interest and confidentiality. They cannot make money at their clients’ expense. They must refer clients to licensed lawyers if those clients’ needs exceed the scope of the Training Guide. And they cannot appear in court or file documents, thus eliminating any risk of providing bad advice in more complex or adversarial settings….
Aside from its less-than-compelling interests, the State has failed to narrowly tailor the statute. In fact, the UPL rules could hardly be broader: New York could implement less restrictive alternatives to blanket ban on all unauthorized legal advice. The Training Guide’s disclaimers demonstrate how the State retains many tools to mitigate harmful speech in this arena. As Justice Advocates are warned, the State has created tort remedies, including breach of fiduciary duty, that could apply to non-lawyers who harm their clients. Justice Advocates are also warned that the State still forbids non-lawyers from holding themselves out as licensed lawyers to the public.
To further these ends, the State could, for example, tailor the UPL rules by requiring Justice Advocates to fully disclose their qualifications and experience, such that clients can make an informed decision about the quality of the legal advice they would receive. Or the State might impose targeted trainings or educational standards on Plaintiffs short of a full Bar certification. These types of measures would allow Plaintiffs to dispense a circumscribed level of speech while still protecting the public from dishonest or untrained legal assistance.
The Court recognizes that legislative developments in this area remain ongoing. States are exploring ways to regulate non-lawyers who provide legal advice to clients. See, e.g., Brief of Amicus Curiae Rebecca L. Sandefur (providing examples of non-lawyer assistance in states including Wisconsin, Washington, Arizona, and California, and in the federal government). These developments suggest a narrower tailoring of New York’s UPL rules is feasible. See McCullen v. Coakley (2014) (strict scrutiny not satisfied where state had failed to show “it considered different methods that other jurisdictions have found effective”). But the Court does not short-circuit the State’s legislative process merely because it references these developments. It is not the Court’s role to decide how to more narrowly tailor the UPL rules, or to ask whether allowing non-lawyers to give legal advice is good policy. Even if there might be plenty of legitimate reasons to ban such advice outright,
The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it….