Attached herein for your attention is Appellant's Brief of the New York State Attorney General to the U.S. Court of Appeals for the 2nd Circuit on the issue whether help by trained nonlawyers filling a court-generated form of affirmative defenses for indigent New Yorkers constitutes unauthorized practice of law to be prosecuted (together with the clients and professors who created the training guide) through criminal UPL laws, and this author's proposed amicus curiae memorandum in support of Appellant's opponents, already filed with the court. UPL laws in New York do not have mens rea element and do not have a clear statutory definition of the criminal conduct element either, as what constitutes the practice of law is not clearly defined by statute in New York. I am an expert in NY criminal law, and assert that prosecution based on such laws deprive criminal court of jurisdiction since it can only obtain jurisdiction on a criminal complaint that must state to the standard of "more likely than not" that a crime has been committed, and without a clear statutory definition of what the prohibited conduct is, a criminal court may not obtain jurisdiction. Yet, NY vigorously prosecutes such "crimes", in an ad hoc ex post facto manner based on arbitrary definitions of what practice of law is supplied case by case by police, prosecutors and judges, in violation of Grayned v City of Rockford, 408 US 104 (1972).
Moreover, criminal law theory permits only two types of crimes - malum/evil in se and malum/evil prohibited by the government. Even when it is malum/evil prohibited, it must be evil that exists not only in the anticompetitive imagination of active market participants, as it happens in NY.
NYS AG's Appellant's brief demonstrates that the entire theory of UPL laws which supposedly "protect the public" (in this case, from access to any help in a dire human crisis situation, which NYS AG said is good as long as help is not coming from non-licensed individuals) is based on two unconstitutional irrebuttable presumptions contrary to facts - that (1) any advice on public laws "generated" (thought up) by a person who is not under government supervision through the licensing regime is presumed incorrect, dishonest, dangerous and unethical, while (2) any such advice by a licensed attorney is presumed, on the opposite, correct, safe, ethical and honest.
SCOTUS consistently prohibited irrebuttable evidentiary presumptions:
Moreover, scholars in both the England and the US, after empirical studies, have not found any evidence of serious - or any - harm to the public from "legal advice" by non-lawyers, see e.g.
Given that background, and the advent of LegalZOOM-like legal bots (which Upsolve Inc. is, as I understand, one of, in addition to its Justice Advocates program, the subject of the lawsuit) it is most peculiar that NYS AG is now grasping at straws and claiming that it is not speech any more that is regulated by NYS when NYS is regulating the undefined "practice of law", but "generating counsel" - in other words, the government controls (for 125 years so far, NYS AG says), the thinking process of lawyers, and it is most dangerous for indigent New Yorkers to obtain advice from people whose thinking processes are not under control of the Big Brother.
It is apparent that the NYS AG did not make George Orwell's "1984" part of her education, where thought crimes now prosecuted by NYS AG with a straight face are exhaustively described.
The claim that only lawyers with government-controlled brains may give legal advice would be hilariously funny if it were not so tragic in this context, at the background of the specific human rights crisis CAUSED by licensed attorneys for corporate debt collectors who engage, as multiple round tables and human rights groups reported, in extensive "sewer service" seeking to secure defaults, as well as in fraudulent robo-signed affidavits submitted to courts, and suing without any evidence, without any due diligence in verifying whether the right person is sued or it is the case of an identity theft, or on time-barred debts.
New York does not discipline and does not criminally prosecute such lawyers, having CLEAR laws on the books that allow to do just that, but prosecutes, instead, people who are trying to provide minimum help to indigent New Yorkers confronted with such fraud perpetrated upon them by licensed attorneys, as well as the indigents who seek such nonlawyers advice (under the solicitation and aiding and abetting theory).
Since New York is in a constant tax hole, the debt collection industry grows because its estimated return on investment is a whopping 150+%, per human watch groups, so NYS AG and regulatory authorities for lawyers turn a blind eye on the cash cow of the state tax coffers and election campaign coffers for prosecutors and judges.
Super-profits in gouging the poor are, in fact, so good that lawyers in New York not only REPRESENT debt collectors, but also BECOME debt collectors in their own right, jumping on the band wagon of state-sanctioned highway robbery of the poor in all capacities.
When NYC recently created an ordinance trying to regulate abuse of debt collection BY LAWYERS, specifically, lawyers sued invoking attorney discipline, instead of a shield of the public, as a shield for themselves, as a "pre-empted area" where they can operated with impunity - additional evidence that the only "interest" that is protected by the regulation of the undefined "practice of law" in New York is the private interest of the lawyer guild, see
ERIC M. BERMAN, PC v. City of New York, 25 NY 3d 684 - NY: Court of Appeals 2015.
I am aware of the long-standing pro-competition position of FTC on this issue, the anticompetitive definitions of what "practice of law", expressed by FTC in multiple letters and amicus curiae briefs on this subject. I am wondering if FTC would be interested to express its position to the 2nd Circuit court as an amicus curiae.
I also herein lodge a complaint against the State of New York based on this Appellant's brief and my personal experience.
New York regulates the practice of law without a clear statutory definition of what the practice of law is, in violation of Grayned v City of Rockford, 408 U.S. 104 (1972), causing people to self-censure, exactly as Grayned says they would do trying to steer clear of vague laws, and will ask courts humbly first whether their activities are protected by the 1st Amendment instead of boldly acting on that protection without fear of government prosecution and without needing any extra permission from the government to do so, as it should be.
I bring to your attention that NYS AG, while lamenting harm to the public from nonlawyers filling in boxes on a government-created form, allows real estate brokers to draft contracts for their clients - BECAUSE - that is done in compliance with a market-sharing agreement (prohibited by federal antitrust laws) with a National Real Estate Association. This agreement has been endorsed both by the NYS AG and by a NY court, which happily provided an exemption from UPL laws to real estate brokers in the area where anybody else drafting a contract without a law license will be prosecuted in NY for a crime of UPL.
The exemption given to real estate brokers on the basis of a market sharing agreement with the National Real Estate Association is clear example that NYS AG, herself an active market participant who acts in protection of the turf of her guild without any neutral state supervision, is prima facie evidence that UPL laws are enforced in protection of a private, and not a public interest.
Please, note that the NYS AG is also a prosecutor who is herself (1) conditionally exempt by SCOTUS (Imbler v Pacthman) from civil rights lawsuits for fabrications of criminal cases on the premise that she is amenable to attorney discipline; (2) exempt from attorney discipline, too, since NYS courts would not discipline the NYS AG who is the courts' own counsel in lawsuits (NYS Public Officers Law 17) and since NYS AG is a prosecutor, and NYS attorney disciplinary courts do not prosecute prosecutors (proof of that is the recent enactment by NY of a Prosecutorial Conduct Commission, because NY State attorney licensing courts refuse to discipline prosecutors as a matter of policy), and (3) certainly exempt from criminal liability as the chief prosecutor in the state.
NYS AG, thus, may fabricate UPL cases without any law constitutionally supporting them at her heart's desire pursuing her private interest of protecting the market of services for her trade guild from intruders, to the detriment of the public.
New York allows active market participants (Attorney Grievance committees appointed by judges, also licensed attorneys) to regulate the market of legal services without any active state supervision conducted by a neutral public official, a non-attorney.
As the Appellant's brief of the NYS AG shows, NY in the absence of a clear statutory definition of what is being regulated as "practice of law", New York executive and judiciary officials create ad hoc ex post facto rules which, in order to take the regulation from the reach of constitutional precedents, such as Holder v. Humanitarian Law Project, 561 US 1 - 2010 (legal advice is content-based speech regulation subject to strict scrutiny under the 1st Amendment), reach into completely bizarre areas.
As an example, in her Appellant's Brief, NYS AG James now boldly asserts that for 125 years so far the main goal of the government in New York is control over THOUGHTS of regulated attorneys, and that legal advice provided by non-attorneys (Upsolve, Inc.) to help resolve a human rights crisis (debt collection abusive litigation) where attorneys are not available to indigents, including racial minorities and immigrants for whom English is not a native language (Johnson v. Avery, 393 US 483 - Supreme Court 1969 factors) are dangerous specifically because providers of Upsolve, Inc. are not subject to such government-mandated mind control.
Of course, NYS AG did not say "thought control" in so many words, she preferred to paraphrase, but the paraphrased definition (government control over "generating legal counsel") is the equivalent of thought control nevertheless. Yet, not only this author, with her MA in teaching English as a foreign language and specialized training in paraphrasing, but Appellees' counsel, too have picked up that "generating" or "formulating legal counsel" which is now declared by NY AG as the main goal of regulation of the undefined "practice of law" and undefined UPL, is nothing other than regulation of thoughts, in other words - a surreal prosecution of thought-crimes.
I request this government body to consider various implications of that bold announcement of the NY AG. I can contemplate several, and am currently preparing law review and journalistic articles to share my vision with the public on this matter, in two languages, my native Russian and English.
SCOTUS has prohibited prosecution of thought crimes as part of its First Amendment jurisprudence, United States v. Balsys, 524 US 666 - Supreme Court 1998, yet this is what the lack of definition of the practice of law and the zeal to protect the turf of lawyers got to in the State of New York.
For your convenience, I have singled out 10 quotes from NYS AG's 95-page brief appealing the preliminary injunction imposed upon her by the U.S. District Court for the Southern District of New York in Upsolve, Inc. v. James in May of 2022, see the full decision imposing the injunction provided after the quotes.
10 quotes on government-mandated mind control of attorneys as the main goal of regulation of the undefined "practice of law" with the help of criminal laws in the State of New York, from NYS AG Appellant's Brief. I must say that I have been admitted to the NYS State Bar, my husband was, too, two of our children are lawyers, and we have asked many former colleagues, who currently are New York State-licensed attorneys. At no time did NY, while giving us law licenses, told us that the main goal of law licensing is subjecting attorneys' thinking process to mandatory control of the state government.
I very much hope that this case will be considered worthy of FTC participation as amicus curiae, as I know FTC did in other jurisdictions where the definition of the practice of law and anticompetitive actions of state officials against nonlawyers were at stake.
As examples, I include herein FTC letters and amicus curiae briefs on the subject of definition of the practice of law in other jurisdictions.
I request to review my complaint that NYS regulation of the undefinied "practice of law" is conducted in violation of federal civil and criminal antitrust laws, where active market participants are allowed by the state to run havoc over both the market of necessary services, and over the lives of consumers.
Please, not that in her Appellant's brief, NYS AG also boldly states that indigent New Yorkers would be better off without any help (as they are now, defaulting in abusive and fraudulent debt collection cases at the rate of 90 to 99% by counts of different studies) than with the help simply to put bullets in boxes in a state-generated form of affirmative defenses.
Such a position is protective of lawyers' turf, harmful to the public and completely unconscionable.
Sincerely,
Tatiana Neroni
Quote 1
“The requirement to maintain a bar license is a means of regulating attorney conduct, not speech. Specifically, the statutes regulate the conduct of exercising legal knowledge, judgment, and skill to generate counsel for particular clients in particular cases”, Upsolve, Inc. v James, Appellant’s Brief, p. 38, emphasis added;
Quote 2
“The reason that a nonlawyer may not generate and then distribute legal counsel is not that he is prohibited from speaking about legal topics, but because he is prohibited from acting as a lawyer to generate the advice”, id., emphasis added;
Quote 3
“As specifically relevant here, the unauthorized-practice statutes limit who may engage in the conduct of applying legal knowledge, judgment, and skill to the facts of a client’s case to generate legal counsel for that client. That exercise of legal knowledge, judgment, and skill is a discrete nonspeech act that is logically and temporally prior to the speech act of communicating the counsel thereby generated”, id., p. 40, emphasis added;
Quote 4
“While a person who cannot lawfully generate legal counsel also cannot communicate counsel that he has unlawfully rendered, that is merely the incidental result of the State’s permissible restriction on who may practice law in the first place—not a direct restriction of speech itself”, id., p. 50, emphasis added;
Quote 5
“The unauthorized-practice statutes do not prohibit plaintiffs’ proposed speech on the basis that it involves uttering certain words. Rather, the statutes forbid plaintiffs from the conduct of purporting to apply legal judgment, knowledge, and skill to generate legal counsel for another person in a particular case”, id., pp. 56-57, emphasis added;
Quote 6
“To be sure, plaintiffs are prohibited from communicating legal counsel that they have generated without a license, but the unauthorizedpractice statutes do not prohibit their communication of legal counsel as such. For example, Udo-Okon would be free to convey legal counsel generated by a licensed attorney. The statutes bar plaintiffs’ underlying exercise of purported legal expertise for particular clients, and have only incidental effects on the communication of counsel so generated”, id., p. 57, emphasis added;
Quote 7
“In any event, the Supreme Court applied strict scrutiny in Holder because the material-support statute directly targeted the plaintiffs’ communication of particular messages (including “expert advice”) to designated terrorist organizations. See 561 U.S. at 21-22, 25-28 (quotation marks omitted). The plaintiffs in Holder were prohibited from conveying expert advice regardless of whether they had obtained accreditation demonstrating professional expertise, and regardless of whether the expert advice had been generated by plaintiffs themselves or by some third party. All that mattered was whether plaintiffs spoke prohibited words to a designated organization—the statute banned speech qua speech, based on the government’s disapproval of the message. See id. In contrast to Holder, the unauthorized-practice statutes in this case do not ban speech as such, and do not discriminate based on content. Rather, they regulate the conduct of practicing law, and burden speech only as an incident of that conduct regulation. Plaintiffs’ speech is not burdened because of what they propose to say, but because the counsel that they propose to communicate will have been formulated by a person without a license to do so”, id., p. 63, emphasis added;
Quote 8
“For example, Udo-Okon (unlike the Holder plaintiffs) could permissibly convey expert legal counsel if that counsel was generated by a licensed attorney. And a licensed attorney could of course convey the same counsel. The statutes only prohibit Udo-Okon from undertaking the conduct of generating legal counsel by applying purported legal knowledge, judgment, and skill to a client’s circumstances. Thus, unlike in Holder, the “conduct triggering coverage” here is not the act of communication, 561 U.S. at 28, but the unlicensed conduct of practicing law. And what matters under the unauthorized-practice statutes is not the “topic discussed or the idea or message expressed,” City of Austin, 142 S. Ct. at 1474 (quotation marks omitted), but whether the person who formulated the legal counsel being communicated had a license to do so”, id., p. 64, emphasis added;
Quote 9
“And the licensure requirement undoubtedly serves New York’s interests by allowing the State to exercise oversight over those who practice law. Requiring a license allows the State to screen practitioners to ensure that they possess the requisite knowledge, judgment, skill, and integrity to practice law—including by generating and conveying legal counsel to clients, who rely on practitioners’ professed expertise. Requiring lawyers to obtain and maintain
their licenses also ensures that the State retains mechanisms through which to address and deter breaches of ethical and professional standards, including through enforcement actions to suspend or disbar attorneys where appropriate. And prohibiting the unauthorized practice of law ensures that those who lack the requisite credentials do not practice law”, id., p. 73, emphasis added;
Quote 10
“The only speech plaintiffs cannot undertake is the distribution of legal counsel generated through the unauthorized practice of law. While “[a]nother state legislature might balance the interests differently,” CAI, 922 F.3d at 209, this lawsuit is not the proper forum for enacting a sweeping change to the law governing lawyers. New York’s 125-year-old attorney-licensing requirement comports with the First Amendment”, id., p. 81, emphasis added.
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THE COURT OPINION AND ORDER
UPSOLVE, INC., and REV. JOHN UDO-OKON, Plaintiffs,
v.
LETITIA JAMES, in her official capacity as Attorney General of the State of New York, Defendant.
No. 22-cv-627 (PAC).United States District Court, S.D. New York.
May 24, 2022.OPINION & ORDER
PAUL A. CROTTY, District Judge.
"The orderly functioning of our judicial system and the protection of our citizens require that legal advice should be offered only by those who possess the requisite qualifications and authorization for the practice of law. At the same time, one of the most fundamental principles of our system of government prohibits any restraint on a citizen's right to disseminate his views on important public issues." Dacey v. New York Cty. Lawyers' Ass'n, 423 F.2d 188, 189 (2d Cir. 1969). Sometimes these two principles conflict, and one must yield to the other.
This case exemplifies that conflict. Plaintiffs—a non-profit organization and a non-lawyer individual—seek to encroach upon a small part of what has heretofore been the exclusive domain of members of the Bar. Plaintiffs have crafted a program that would train non-lawyers to give legal advice to low-income New Yorkers who face debt collection actions. Specifically, Plaintiffs want to help those New Yorkers fill out checkboxes on a one-page answer form provided by the State, in the hopes that more people will avoid defaulting outright in such actions. The legal advice would be free and confined to helping clients complete the State's one-page form.
Plaintiffs' proposal faces one problem: by giving legal advice as non-lawyers, their activities would constitute the unauthorized practice of law ("UPL") under several New York statutes. They risk being sued by the Defendant in this case, the New York State Attorney General. Thus, Plaintiffs seek an injunction that prevents the Attorney General from enforcing the UPL rules against them.
The Court concludes a preliminary injunction is warranted. The UPL rules cannot be applied to Plaintiffs' program because the First Amendment protects their legal advice as speech, and the UPL rules are not narrowly tailored to satisfy strict scrutiny in this context. Further, the balance of equities favors an injunction because Plaintiffs' program would help alleviate an avalanche of unanswered debt collection cases, while mitigating the risk of consumer or ethical harm. And enjoining enforcement against Plaintiffs alone, whose activities are carefully limited to out-of-court advice, will not threaten the overall regulatory exclusivity of the legal profession.
BACKGROUND
I. Debt Collection Actions in New York State
Debt collection actions are extremely common in New York. By one estimate, they comprise approximately a quarter of all lawsuits in the State's court system. See Compl., ECF No. 1, at ¶ 18.
These debt collection actions have been the subject of commentary and regulatory reform. Many of these lawsuits are viewed as "clearly meritless," where the defendants sued do not actually owe the amount claimed, or any amount at all. See id. ¶ 21.[1] Nonetheless, everyone agrees the vast majority of New Yorkers default when faced with debt collection actions. Plaintiffs provide estimates of the default rate that range from over 70% to up to 90%. See id. ¶ 19.
Three such New Yorkers have submitted declarations describing their own default judgments. All three were sued on consumer debts such as credit card expenses, medical bills, or auto loans. See Evertsen Decl., ECF No. 7-7, at ¶ 9; Jurado Decl., ECF No. 7-8, at ¶ 17; Lepre Decl., ECF No. 7-9, at ¶ 6. However, none of them received notice they were being sued, so they all defaulted. See Evertsen Decl. at ¶¶ 12-14; Jurado Decl. at ¶¶ 14-15; Lepre Decl. at ¶¶ 9-11. They subsequently faced default judgments—and collateral consequences including wage garnishment, lowered credit scores, and bankruptcy—because they had failed to answer the lawsuits against them. See Evertsen Decl. at ¶ 17; Jurado Decl. at ¶¶ 18, 24; Lepre Decl. at ¶¶ 14, 17, 22.
Since at least 2015, New York has responded to this debt collection problem by providing a one-page answer form that defendants can download, complete, and submit in their cases. See Compl. ¶¶ 34-35; id. Ex. A, ECF No. 1-1 (the "State-Provided Answer Form"). The form includes checkboxes allowing a defendant to assert affirmative defenses, such as, "I did not receive a copy of the Summons and Complaint," "I had no business dealings with Plaintiff (Plaintiff lacks standing)," or "Unconscionability (the contract is unfair)." See State-Provided Answer Form at 2. A defendant can submit a notarized copy of the State-Provided Answer Form themselves, i.e., pro se.
II. Plaintiffs and their AJM Program
Plaintiff Upsolve, Inc. is a non-profit organization that seeks to "ensure that all Americans can access their legal rights." Compl. ¶ 3. The organization "hope[s] to improve public faith in the court system by ensuring that all defendants rich and poor can have their day in court, courts can decide more cases on their merits, and plaintiffs cannot secure default judgments on meritless claims simply due to defendants' inability to vindicate their rights." Id. ¶ 56. More specifically, Upsolve seeks "to provide free, narrowly circumscribed legal advice to low-income New Yorkers to ensure that they can understand how to respond to the debt collection lawsuits against them and help reduce wrongful deprivation of property and the lasting harm it can cause." Id.
To that end, Upsolve has "designed, crafted, and obtained funding to implement a program—the American Justice Movement (`AJM')—to train professionals who are not lawyers to provide free legal advice on whether and how to respond to a debt collection lawsuit." Id. Upsolve has not yet implemented the AJM program. See id. ¶ 92.
Under the AJM program, volunteer trainees—referred to as "Justice Advocates"—would use a training guide to help clients complete the State-Provided Answer Form. See Compl. Ex. B, ECF No. 1-2 (the "Training Guide"). The Training Guide provides several steps for a Justice Advocate to follow when counseling a client. Those steps include: (1) determining whether the client could benefit from their advice; (2) confirming the limited scope of representation with the client; (3) advising the client whether it is in their best interest to answer the lawsuit against them; (4) advising the client on how to fill out the answer's 24 checkboxes based on the client's answers to a series of questions; and (5) advising the client on how and where to file and serve the answer themselves. See Training Guide at ECF pagination 5-13. Upsolve designed the Training Guide with the help of lawyers and law professors who have experience in debt collection practice. See Lhewa Decl., ECF No. 7-5; Foohey Decl., ECF No. 7-6.
The Training Guide also limits the scope of legal assistance provided. Justice Advocates must sign an affidavit attesting that the advice they provide will be free of charge. They promise to abide by New York's Rules of Professional Conduct regarding client conflicts of interest, confidentiality, and informed consent. And they promise to refer clients to lawyer organizations if those client's needs exceed the scope of the advice authorized by the Training Guide. See Training Guide at ECF pagination 3-4, 15. If Justice Advocates violate the Training Guide's rules, their membership in the AJM program will be terminated. They are also warned they could be prosecuted for the unauthorized practice of law or other consumer-protection laws if they violate the AJM program's rules. See id. at 4.
One such Justice Advocate would be Reverend Udo-Okon, the other plaintiff in this case. Reverend Udo-Okon is a pastor in the South Bronx. See Udo-Okon Decl., ECF No. 7-2, at ¶ 3. He is not a lawyer, but would like to help members of his community who frequently come to him with their legal problems, including debt collection lawsuits. See id. at ¶¶ 11, 13. Reverend Udo-Okon "would welcome the opportunity to be trained by the American Justice Movement," and "would be willing to comply with the relevant ethical obligations, including confidentiality and conflict-of-interest protections, for the individuals seeking [his] advice." See id. at ¶ 23. He declares that his advice would be free to those who receive it. See id. Reverend Udo-Okon has gathered signatures from dozens of his constituents who say they would be willing to receive free legal advice from him. See id. Ex. 2A, ECF Nos. 7-3, 7-4.
III. New York's UPL Statutes
New York makes it civilly and criminally punishable for someone who is not admitted to a State Bar Association to engage in the "unlawful practice of law." See N.Y. Jud. Law §§ 476-a, 478, 484, 485. A court may also hold a non-lawyer who practices law in civil or criminal contempt. See id. §§ 750, 753. The Attorney General is authorized to sue "any person, partnership, corporation, or association" who engages in the unauthorized practice of law. Id. § 476-a.
Defining the "practice of law," however, is an elusive endeavor. New York courts have held that one clear category "involves the rendering of legal advice and opinions directed to particular clients." Matter of Rowe, 80 N.Y.2d 336, 341-42 (1992). Others include "appearing in court and holding oneself out to be a lawyer." El Gemayel v. Seaman, 72 N.Y.2d 701, 706 (1988). By contrast, giving generalized advice to the public—where judgment is not exercised on behalf of a particular client—is not considered the practice of law. See Rowe, 80 N.Y.2d at 342; El Gemayel, 72 N.Y.2d at 706.
In this case, both sides agree that Justice Advocates in the AJM program would be "practicing law" in New York. Justice Advocates would give clients advice on how to complete an answer form based on those clients' individual circumstances; those clients would then file their answers in court. See, e.g., Sussman v. Grado, 746 N.Y.S.2d 548, 552-53 (Dist. Ct. Nassau Cty. 2002) (paralegal who used independent judgment to help a client fill out a form, without attorney supervision, engaged in the unauthorized practice of law). The UPL rules therefore apply to Plaintiffs' activities.
The question, then, is whether the UPL rules are constitutional in that application.
ANALYSIS
IV. Subject Matter Jurisdiction
A. Plaintiffs have Standing to Seek Injunctive Relief
The Court must first assess the threshold issue of Article III standing. Here, even though no one has yet sought to enforce the UPL rules against them, Plaintiffs have established standing.
"[I]n order to seek injunctive relief, a plaintiff must show the three familiar elements of standing: injury in fact, causation, and redressability." Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (citing Summers v. Earth Island Inst., 555 U.S. 488 (2009)). At the preliminary injunction stage, "a plaintiff cannot rest on such mere allegations, as would be appropriate at the pleading stage but must set forth by affidavit or other evidence specific facts" supporting the three standing elements. Cacchillo, 638 F.3d at 404 (cleaned up) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).[2]
Plaintiffs have not provided any legal advice would expose them to prosecution under the UPL rules, raising questions as to the "injury in fact" element of Article III standing. Yet such pre-enforcement challenges are regularly entertained by federal courts. Where a plaintiff asserts injury based on the threat of prosecution, that plaintiff need not "expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced." MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007) (collecting cases). Plaintiffs here could face civil or criminal prosecution under the UPL rules by the Attorney General.
In a pre-enforcement challenge, "[c]ourts are generally `willing to presume that the government will enforce the law as long as the relevant statute is recent and not moribund.'" Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016) (quoting Hedges v. Obama, 724 F.3d 170, 197 (2d Cir. 2013)). This presumption "sets a low threshold and is quite forgiving to plaintiffs seeking such preenforcement review," Cayuga Nation, 824 F.3d at 331 (quoting Hedges, 724 F.3d at 197), especially when First Amendment rights are at issue. See Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 689 (2d Cir. 2013).
New York's UPL rules are hardly moribund; they are frequently enforced against lawyers and non-lawyers alike. See, e.g., Spiegel v. Ahearn, No. 101251/2016, 2018 WL 4743366, at *4 (Sup. Ct. N.Y. Cty. 2018) (non-lawyer engaged in the unauthorized practice of law "by discussing Defendants' legal problems with them and advising them what they needed to do to resolve those problems"); People v. Jakubowitz, 710 N.Y.S.2d 844, 845 (Sup. Ct. Bronx Cty. 2000) (criminal charges under UPL rules against disbarred attorney). Just a few months ago, the Attorney General charged a non-lawyer in Buffalo for allegedly posing as an attorney and representing clients at legal proceedings.[3] That non-lawyer faces a possible felony under the UPL rules.
To be sure, the Attorney General has not announced an intention to prosecute the Plaintiffs for implementing the AJM program. But as discussed above, Plaintiffs' activities would clearly run afoul of the UPL rules. See Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65, 71 (2d Cir. 2019). Moreover, the Attorney General declined to disavow enforcement against Plaintiffs at oral argument.[4] See Walsh, 714 F.3d at 691 (political non-profit had pre-enforcement standing, despite Government's suggestion that it might not enforce a statute, when that statute "clearly applie[d]" to non-profit's activities, and Government had conceded at oral argument that it regulated thousands of other political committees); Vermont Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 383 (2d Cir. 2000) (noting "there is nothing that prevents the State from changing its mind" about enforcement). The Attorney General has not rebutted the presumption of enforcement.
Plaintiffs have also buttressed their standing by showing exactly how they would violate the UPL rules. See Wembley, Inc. v. Superba Cravats, Inc., 315 F.2d 87, 90 (2d Cir. 1963) ("Major stress should be placed on the `definite' intention of the plaintiff to take `immediate' action to utilize its potential and this intention should be `evident' from the preparatory steps outlined in its complaint."). Upsolve has provided a fully fleshed-out Training Guide. It has identified willing Justice Advocate trainees (such as Reverend Udo-Okon) and willing clients (such as the signatories to the Reverend's petition) that could implement that Training Guide immediately. Plaintiffs' injury is thus sufficiently concrete to meet Article III's requirements.
With injury-in-fact established, the causation and redressability elements of standing are easily satisfied in this case. As to causation, Plaintiffs have alleged that the only thing preventing them from acting is the threat of UPL enforcement. See Udo-Okon Decl. ¶¶ 17-18, 21 ("One such religious leader in the South Bronx was accused of practicing law without a license because he was trying to help members of his community out with their legal issues. I fear that I would face the same consequences if I tried to help members of my own community out with their debt collection lawsuits."). And relatedly, an injunction against enforcement of the UPL rules would remove the threat to Plaintiffs' planned activities, satisfying the redressability requirement.
B. Plaintiffs' Challenge is As-Applied
The nature of Plaintiffs' pre-enforcement challenge presents another threshold question: whether the Court should treat that challenge as one that is "facial" or "as-applied." A facial challenge would seek to declare New York's UPL rules unconstitutional for everyone, while an as-applied challenge only seeks to hold those rules unconstitutional as to Plaintiffs' own activities.
"Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society—to prevent the statute from chilling the First Amendment rights of other parties not before the court." Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984). Given their breadth, facial challenges are highly disfavored. See Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008); accord Dickerson v. Napolitano, 604 F.3d 732, 741 (2d Cir. 2010).
Plaintiffs characterize their suit as an as-applied challenge—they do not seek to strike down the UPL rules whole cloth—and the Attorney General does not argue otherwise. Yet the pre-enforcement timing of Plaintiffs' lawsuit unsettles their conclusion. After all, how is the Court to resolve the application of the UPL rules to Plaintiffs if they have not yet violated anything?
Some Second Circuit precedent would seem to suggest that Plaintiff's lawsuit must be construed as a facial challenge. In Jacoby & Meyers, LLP v. Presiding Justices of the First, Second, Third & Fourth Departments, non-lawyer plaintiffs who wanted to invest in law firms sued before taking any action to violate the UPL rules. 852 F.3d 178, 191 (2d Cir. 2017). The Second Circuit noted that the plaintiffs' suit "constitute[d] a facial, rather than as-applied challenge" because they had brought a "pre-enforcement appeal before they have been charged with any violation of law . . . ." Id. (quoting N.Y.S. Rifle & Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242, 265 (2d Cir. 2015) (internal quotation marks omitted)). Likewise here, because Plaintiffs have not been charged with violating the UPL rules, Jacoby & Meyers would suggest their action should be construed as a facial challenge.
The Supreme Court, however, has eschewed any such bright line rule. It has permitted pre-enforcement, as-applied challenges under the First Amendment. See Holder v. Humanitarian Law Project, 561 U.S. 1, 14-16 (2010); Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 234, 248-49 (2010).
While these two lines of authority are admittedly in "some tension," Geller v. Cuomo, 476 F. Supp. 3d 1, 17 (S.D.N.Y. 2020), it is more sensible to frame Plaintiffs' challenge as an as-applied one. Adjudicating their claims will not extend relief to non-parties outside of their organization, as the specifics of Plaintiffs' legal advice can be adjudicated on the factual basis of AJM Training Guide. They seek to allow members of a specific group to give legal advice about a specific legal topic—debt collection cases—with specific parameters about how those members would go about giving that advice. This analysis does not require adjudication of every possible application of the UPL rules based on hypothetical facts about other groups of non-lawyers. See United States v. Salerno, 481 U.S. 739, 745 (1987) (on a facial challenge, "the challenger must establish that no set of circumstances exists under which the [statute] would be valid").
Moreover, there is no tension at all surrounding the federal courts' general preference for as-applied challenges. As-applied challenges serve the foundational interest of judicial restraint. They allow for incremental decisions, based on actual cases or controversies, about the constitutionality of our laws. See Kane v. De Blasio, 19 F.4th 152, 174 (2d Cir. 2021).
The Court shall therefore examine the constitutionality of the UPL rules as applied to Plaintiffs alone.
This framing carries important consequences. A facial challenge would impose a heavy burden on Plaintiffs to prove the UPL rules lack a "plainly legitimate sweep," Washington State Grange, 552 U.S. at 449 (citation and quotation marks omitted)—an especially trying task considering that the UPL rules are one of the cornerstones of the modern practice of law in New York State. Instead, with an as-applied challenge, Plaintiffs need not challenge the legitimacy of the UPL rules in the abstract; they need only address the UPL rules with respect to their own activities. An as-applied challenge also guarantees that any relief would be narrow, affecting only the Plaintiffs and not the entire universe of non-lawyers. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502 (1985) (noting that "a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it").
With the scope of Plaintiffs' challenge to the UPL rules made clear, the Court turns to the merits.
V. MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs seek a preliminary injunction that prevents the Attorney General from enforcing the UPL rules against them for implementing the AJM program.
A. Legal Standard
A preliminary injunction is an "extraordinary and drastic remedy" that is "never awarded as of right." Munaf v. Geren, 553 U.S. 674, 689-90 (2008). To obtain this remedy, Plaintiffs must demonstrate three factors. Where, as here, "a preliminary injunction will affect government action taken in the public interest pursuant to a statute or regulatory scheme," the party seeking the preliminary injunction must demonstrate "(1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction." Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 631 (2d Cir. 2020) (citation and quotation marks omitted). More generally, "[t]he movant also must show that `the balance of equities tips in his [or her] favor.'" Yang v. Kosinski, 960 F.3d 119, 127 (2d Cir. 2020) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
"To warrant a preliminary injunction, Plaintiffs need not show that there is a likelihood of success on the merits of all of their claims for relief. Rather, Plaintiffs must show a likelihood of success on the merits of at least one of their claims." L.V.M. v. Lloyd, 318 F. Supp. 3d 601, 618 (S.D.N.Y. 2018) (alterations and quotation marks omitted).
One wrinkle: Plaintiffs in this case seek an injunction that alters the status quo by allowing them to give legal advice for the first time. Thus, Plaintiffs seek a "mandatory" injunction (which alters the status quo) rather than a "prohibitory" injunction (which maintains the status quo). See Kosinski, 960 F.3d at 127. For a "mandatory" injunction, Plaintiffs must also: (1) make a "strong showing" of irreparable harm, and (2) demonstrate a "clear or substantial likelihood of success on the merits." Id. (citations omitted). Because the Court concludes Plaintiffs would prevail under either the "mandatory" or "prohibitory" standard, it does not distinguish between the two for purposes of this Opinion. See id.
B. Likelihood of Success on the Merits
Much rises and falls on the likelihood of Plaintiffs' success on the merits. "Because the deprivation of First Amendment rights is an irreparable harm, in First Amendment cases `the likelihood of success on the merits is the dominant, if not the dispositive, factor'" in granting a preliminary injunction. Agudath Israel, 983 F.3d at 637 (quoting Walsh, 733 F.3d at 488).
"It is fundamental that the First Amendment `was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548 (2001) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964)).
Plaintiffs advance two theories under the First Amendment. First, they claim the UPL rules infringe on their right to associate with potential clients and access the courts. Second, they claim the UPL rules infringe on their right to give legal advice under the Free Speech Clause. Although their first theory likely lacks merit, their second theory is likely to succeed on the merits.
i) Right of Association Claim
The Court first addresses, and dismisses, Plaintiffs' associational theory. Plaintiffs allege the UPL rules unconstitutionally prevent them, and their clients, from accessing the courts and expressing their political beliefs. They argue that debt collection lawsuits affect poor and minority Americans more than other groups, and that by responding to those lawsuits, they can express their beliefs about every New Yorker's right to be heard in court. See Compl. ¶ 56.
Two threads of Supreme Court precedent are often invoked in this associational context. The first line of cases involves non-profits that seek to advocate politically through litigation. In NAACP v. Button, 371 U.S. 415 (1963), the NAACP sought to recruit clients to battle racial segregation in court. However, a state statute had prevented organizations like the NAACP from using attorneys to represent third-party clients. Id. at 423-24. The Supreme Court held that NAACP's efforts were "modes of expression and association protected by the First and Fourteenth Amendments . . . ." Id. at 428-49. The Court emphasized that "no monetary stakes [were] involved" in the NAACP's mission, such that "there [was] no danger that the attorney [would] desert or subvert the paramount interests of his client to enrich himself or an outside sponsor." Id. at 443-44. The NAACP's attorney advocacy was therefore a "mode[] of expression and association protected by the First and Fourteenth Amendments." Id. at 428-49.
Button's rationale was echoed in In re Primus, 436 U.S. 412 (1978). In Primus, the Supreme Court struck down a law that prevented the ACLU from soliciting a client who had received an allegedly unconstitutional sterilization. Id. at 422. Again, the Court emphasized the organization's non-financial motives by contrasting the ACLU's activities from those in another case decided the same day, Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 458 (1978), which upheld a state law barring a lawyer from solicitating a client in-person for paid representation. Primus, 436 at 422. Although the Primus Court concluded the state's interests may be stronger in circumstances where a commercial transaction is proposed, they were not sufficiently tailored in application to organizations such as the ACLU. Id.
The second relevant line of cases involves lawyers who seek to represent union members. See United Transp. Union v. Michigan, 401 U.S. 576 (1971); United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass'n, 389 U.S. 217 (1967); Brotherhood of R. R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1 (1964). In those cases, the Supreme Court has held the First Amendment protected union members' right to "associate with each other to obtain counsel and further their litigation ends, and to the union as a proxy for the workers in their exercise of associational rights." Jacoby & Meyers, 852 F.3d at 185. States therefore could not "prevent efforts of a union to provide its members practical and economical access to courts to press work-related personal injury claims" by framing laws "in the guise of regulating the practice of law." Board of Education v. Nyquist, 590 F.2d 1241, 1244 (2d Cir. 1979).
The "common thread" of these two lines of cases is the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment." United Transp., 401 U.S. at 585. And the cases have clearly differentiated between "activities of lawyers acting in a for-profit setting and those acting in a not-for-profit context, advocating political causes in which the attorneys themselves share . . . ." Jacoby & Meyers, 852 F.3d at 188. Hence, Plaintiffs' non-profit status holds some superficial appeal in this action.
But the cases share another common thread which cuts against Plaintiffs: in each one, "clients and attorneys [sought] each other out to pursue litigation." Id. at 185 (emphasis added). Here, by contrast, non-lawyers would seek out clients. Accordingly, both the non-profit and the union lines of caselaw are fundamentally distinguishable: neither confronted a non-lawyer's purported associational right to represent a client. In that respect, no precedent, binding or otherwise, appears to support Plaintiffs' position.
This Court doubts, moreover, that the rationale of Button and Primus extends so far as to justify non-lawyer legal advice merely because doing so would express a political belief. The lawyers in those non-profit cases sought to vindicate constitutional rights, such as equal protection against discriminatory laws, because such causes "implicate[d] expressive values" for both the lawyers and their clients. Id. at 185-86. Here, Plaintiffs would express their belief in ending cycles of poverty by assisting their clients in debt collection cases. But the only constitutional right they seek to vindicate is their clients' right to access the courts.[5] Promoting access to the courts—a right shared by every client—would allow any non-lawyer, so long as they do not charge a fee, to bootstrap a right to practice law. See id. at 187 ("We are not aware of any judicial recognition of such an interest, however, when it comes to the lawyer's generic act of pursuing litigation on behalf of any client."). Clients in any type of civil lawsuit would thus enjoy the right to full non-lawyer representation. The Court declines to endorse this broad associational theory to warrant a preliminary injunction.
ii) Free Speech Claim
Plaintiffs' stronger theory is based on their own right to free speech. On this second claim, they have demonstrated a likelihood of success on the merits.
At the outset, the Court underscores that an 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.[6] 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.
(1) Plaintiffs' Legal Advice is Content-Based Speech
Plaintiffs' claim hinges on whether the act of giving legal advice should be conceptualized as conduct or speech. The two concepts often blur, given that "the practice of law has communicative and non-communicative aspects." Capital Associated Indus., Inc. v. Stein, 922 F.3d 198, 208 (4th Cir. 2019). But "[w]hile drawing the line between speech and conduct can be difficult, [the Supreme] Court's precedents have long drawn it, and the line is long familiar to the bar." Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2373 (2018) (citations and quotation marks omitted) ("NIFLA").
The distinction between speech and conduct matters because it determines the level of scrutiny that the Court must apply. On the one hand, for regulations of professional conduct that incidentally involve speech, courts apply intermediate scrutiny. See id. at 2372 (citing Ohralik, 436 U.S. at 456-57 (remarking that where "speech is an essential but subordinate component" of a transaction, "[w]hile this does not remove the speech from the protection of the First Amendment" altogether, "it lowers the level of appropriate judicial scrutiny")). On the other hand, a regulation invites strict scrutiny when it "`targets speech based on its communicative content'— that is, if it `applies to particular speech because of the topic discussed or the idea or message expressed.'" City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022) (alteration omitted) (quoting Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)).
There is no doubt: lower 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.[7] Conduct could also include "representing" clients in a courtroom or proceeding.[8] 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.[9] 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,[10] 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. See NIFLA.
