The First Amendment’s protection for free speech isn’t limited to political advocacy or expressions of personal opinion—it extends to speech on all topics. That includes expert advice that people earn a living providing, an area known as occupational speech. Indeed, for many Americans, this sort of expert advice is among the most valuable speech for helping people navigate the real problems they face in their day-to-day lives.
That’s particularly true of legal advice, which is why S.M. Kernodle-Hodges and Alicia Mitchell-Mercer co-founded the North Carolina Justice for All Project (JFAP) in 2020. JFAP’s mission is to expand access to legal advice for low-income North Carolinians. But North Carolina’s broad prohibition on the unauthorized practice of law—which gives licensed lawyers a monopoly on providing legal advice—stands in its way. That’s why JFAP and two of its members, Morag Black Polaski and Shawana Almendarez, have joined with the Institute for Justice to file a federal lawsuit to vindicate their right to provide both free and paid legal advice regarding court-created forms.
America is in the midst of an access-to-justice crisis. For many Americans facing routine legal issues—whether they relate to divorce, child custody, evictions, or any number of problems that make up the bulk of state courts’ civil dockets—hiring a lawyer to navigate these problems is simply unaffordable. And this is not a problem limited to the poor. It is also a problem for the “missing middle”—those who earn too much to qualify for free legal assistance from groups like Legal Aid, but not enough to afford a lawyer. The inevitable result is that many Americans must navigate the legal system on their own.
Responding to these concerns, many courts have created standardized forms with instruction packets for routine legal issues. But for laypeople inexperienced with the law, these forms can still be intimidating or confusing. What many of these people could use is some simple advice.
Unfortunately, America’s broad prohibitions on the unauthorized practice of law make this advice hard to come by. State laws give licensed lawyers a monopoly on providing even basic legal advice. And, as with all monopolies, the results are higher prices and fewer choices.
JFAP was organized to address these needs. The nonprofit advocacy group has lobbied for legislative changes in North Carolina that would improve access to justice by introducing a limited licensing system for paraprofessionals and by relaxing the current rules for nonprofit organizations on who can provide basic legal advice.[i] But despite initial interest from some members of the legislature, the judiciary, and the state bar, their proposals eventually encountered significant obstacles within the judiciary and the bar, before finally hitting a brick wall in the state senate.
But the rights of JFAP and the North Carolinians it hopes to help don’t turn on legislative grace. And under the First Amendment to the United States Constitution, it shouldn’t have to.
Bridging the Justice Gap in North Carolina with Free and Paid Legal Advice
In 2020, the North Carolina Equal Access to Justice Commission and the Equal Justice Alliance partnered with UNC Greensboro’s Center for Housing and Community Studies to conduct the first comprehensive civil legal needs assessment in North Carolina in almost 20 years.[i] The results painted a sobering picture of unmet access to justice.
In any given year, 71% of low-income families will experience at least one civil legal problem. [ii] Of those legal needs, 86% “go unmet because of limited resources for civil legal aid providers.”[iii] Overwhelmingly, the most significant barrier low-income North Carolinians identified in accessing legal services was cost, which was cited by 91.2% of survey respondents.[iv]
But while the scope of unmet legal need is great, the types of legal problems faced by low-income North Carolinians are narrow. Among the most common are domestic abuse, such as restraining orders and civil no-contact orders, eviction, and modification of custody and visitation.[v] Courts in North Carolina have produced several standard forms/instruction packets to help North Carolinians navigate these issues without the help of a lawyer.
But as anyone who has ever tried to fill in a government form can tell you, filling those forms out correctly is often far from easy. And even if mistakes on those forms don’t permanently deprive litigants of their legal rights, they can lead to substantial delays.
Enter the North Carolina Justice for All Project (JFAP). Composed of experienced, state-certified paralegals, JFAP wants to help bridge the justice gap by collaborating with paraprofessional volunteers and community justice workers to host clinics at which one or more of JFAP’s members could offer advice and assistance filling out court-created forms. By providing just a bit of basic guidance, JFAP’s clinics could help North Carolinians more quickly resolve their civil legal issues.
But JFAP’s co-founder, —who goes by Kernodle—is also adamant that free advice can address only a fraction of North Carolinians’ unmet legal needs.
It’s a matter of numbers: North Carolina Legal Aid employs 230 hardworking lawyers; that is about one legal aid attorney for every 7,500 North Carolinians eligible for legal services.[vi] As a result, “[l]egal aid providers are forced to turn away many eligible people with meritorious cases due to lack of resources.”[vii]
Nationwide, even if “every single one of the 1.3 million licensed lawyers in the U.S. were to take on all these problems, they’d each have to put in 180 pro bono hours just to provide one hour each to households in need.[viii] That’s more than three times the average amount of pro bono hours reported by the 52% of lawyers who provided pro bono services in 2016.[ix] At the average hourly rate for noncorporate lawyers, the cost of providing those pro bono hours would amount to $46.5 billion.[x] And again, this is only for the fraction of Americans that qualify for legal aid. Those that do not qualify must either pay for a lawyer or go without.
But trained paralegals like JFAP members Morag Black Polaski and Shawana Almendarez can provide basic legal advice for a fraction of the cost a lawyer would charge. Both are North Carolina State Certified Paralegals, a voluntary credential administered by the North Carolina State Bar that the Bar touts as “recogni[zing] . . . the high professional standards [both] have satisfied.”[xi] And both have extensive experience with the court-created forms for basic legal problems in North Carolina. Opening the door to paid legal advice by nonlawyers like Morag and Shawana has the potential to dramatically reduce the justice gap in North Carolina and encourage other nonlawyers to enter the market.
The First Amendment Protects Advice on All Topics, Including Law
But allowing nonlawyers to provide legal advice isn’t just good policy that will expand access to justice; it is the only result that aligns with the First Amendment. The U.S. Supreme Court has repeatedly held that specialized advice about the law is protected by the First Amendment.[xii] The Supreme Court has also explicitly rejected the idea that there is any exception to the First Amendment for so-called “professional speech” subject to occupational licensing. If there were, states would have “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”[xiii]
JFAP’s case is also not the first to raise claims that the First Amendment protects legal advice by nonlawyers. In Upsolve, Inc. v. James, another case being litigated by the Institute for Justice, a federal judge in the Southern District of New York held that “ 1 oncluding that . . . legal advice is . . . speech is not only in line with modern First Amendment authority; it is also the intuitive result.”[xiv] After all, “‘If speaking to clients is not speech, the world is truly upside down.’”[xv]
Although Upsolve involves only uncompensated legal advice, the Supreme Court has been equally clear that the First Amendment applies equally to both paid and unpaid speech.[xvi] And it could hardly be otherwise. If speakers got less First Amendment protection when they were paid, the government would have a free hand to ban books on legal advice when they are sold, but not when they are given away. Nobody thinks that is the law, and there is no basis in First Amendment law for treating spoken advice from Morag, Shawana, and JFAP differently from written advice.
Allowing nonlawyers to provide basic legal advice for pay is also far less radical than it may sound. In fact, it is the way things work in England, our closest legal cousin. Under the Legal Services Act 2007, there are only six “reserved legal activities” for which a government license is required: appearing as an advocate in court, conducting litigation, facilitating certain property transactions, probate activities, notarial activities, and the administration of oaths.[xvii] But anyone is allowed to provide legal advice, with or without a license.[xviii]
Under the First Amendment, the success of less-restrictive alternative regulatory schemes, such as England’s, is strong evidence that North Carolina’s total ban on legal advice by nonlawyers burdens too much speech. A core principle of First Amendment law is that restrictions on speech must be “narrowly tailored,” burdening no more speech than necessary. That requires the “government [to] demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests.”[xix]
The Litigation Team
Morag, Shawana, and JFAP are represented by IJ Senior Attorney Paul Sherman and Litigation Fellow Christian Lansinger.
The Institute for Justice
Founded in 1991, the Institute for Justice litigates in the courts of law and in the court of public opinion to defend property rights, economic liberty, educational choice, and, as here, free speech. IJ is also the nation’s leading legal advocate defending occupational speech. Among other clients, IJ has represented or currently represents:
- A New York nonprofit that wants to help people fill out basic legal forms.
- A Texas veterinarian who was fined for answering questions about animals that he hadn’t physically examined.
- An Indiana woman who is prohibited from giving end-of-life guidance because she is not a licensed funeral director.
- An Oregon man accused of unlicensed engineering when he questioned the math used to time local traffic lights.
- A North Carolina psychologist—and one of America’s longest-running newspaper advice columnists—whom the Kentucky psychology board accused of “the unlicensed practice of psychology” for answering questions posed by readers of his nationally syndicated column.
All these cases advance the principle that the First Amendment fully applies to people who talk, write, or analyze things to earn a living. They seek to ensure that unnecessary and arbitrary government regulation does not hinder people seeking access to informational services.
[i] N.C. Equal Access to Just. Comm’n & N.C. Equal Just. Alliance, In Pursuit of Justice: An Assessment of the Civil Legal Needs of North Carolina 1 (Exec. Summary 2021).
[ii] Id. at 3.
[iv] Id. at 4.
[v] Id. at 5.
[vi] 2023 ABA Profile of the Legal Profession 21 (2023); Legal Aid of North Carolina, Inc. Program Profile, Legal Servs. Corp., https://www.lsc.gov/grants/our-grantees/legal-aid-north-carolina-inc-program-profile.
[vii] N.C. Equal Access to Justice Comm’n & N.C. Equal Just. Alliance, supra, at 4.
[viii] Mitchell-Mercer, supra, at 18 (citing Zachariah DeMeola, Pro Bono Work Should be Encouraged and Celebrated, But Much, Much More is Needed, Institute for the Advancement of the American Legal System (Oct. 18, 2019), https://iaals.du.edu/blog/pro-bono-work-should-be-encouraged-and-celebrated-much-much-more-needed).
[xi] Why Should I Become a NC Certified Paralegal?, N.C. St. B., https://www.nccertifiedparalegal.gov/for-paralegals/why-get-certified/.
[xii] See Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2374 (2018).
[xiii] Id. at 2375.
[xiv] 604 F. Supp. 3d 97, 114 (S.D.N.Y. 2022).
[xv] Id. (quoting Otto v. City of Boca Raton, 981 F.3d 854, 866 (11th Cir. 2020)).
[xvi] Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 801 (1988) (“It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.”).
[xvii] Legal Services Act, 2007, c. 29, §§ 12–16 (U.K.), available at https://www.legislation.gov.uk/ukpga/2007/29/part/3.
[xviii] Alex Roy & Chris Handford, Legal Servs. Bd., Reserved & Unreserved Lawyers’ Activities 2(“The majority of legal activities are not listed as ‘reserved activities’ and are not explicitly required by statute to be brought within the scope of legal services specific regulation. This includes . . . for example general legal advice, transactional corporate advice, will-writing and employment advice. In practice, these activities can be provided by anybody who wishes to do so . . . .”), available at https://www.legalservicesboard.org.uk/Projects/rationalising_scope_of_regulation/pdf/reserved_and_unreserved_lawyers.pdf.
[xix] McCullen v. Coakley, 573 U.S. 464, 495 (2014).