Right to Provide Legal Advice
When wealthy Americans face legal troubles, they have a lot of sources of advice. Legions of lawyers, business consultants, accountants and others stand ready to provide their expertise for a price. But for many Americans who may lack the means to employ those experts, their only option is to turn their friends, family, or other community members, like their pastors.
That has certainly been the experience of Reverend John Udo-Okon, a Bronx-based pastor whose congregants turn to him for advice when they have trouble. Sometimes their troubles are spiritual. Sometimes marital. And sometimes legal—like many New Yorkers, Rev. John’s parishioners sometimes get sued, and they don’t know what to do.
A lot of those lawsuits are about consumer debt. Indeed, a lot of lawsuits in New York are about consumer debt: Roughly a quarter of all lawsuits filed in New York are suits to collect on a debt. In a given year, some 300,000 residents of New York City alone will be hit with a debt lawsuit. And many of these suits are, to say the least, questionable—brought by third parties that buy up old debts on the secondary market and file suits to collect, even if the defendant doesn’t owe the amount claimed or, sometimes, anything at all.
But despite the fact that many of these lawsuits lack merit, they are overwhelmingly successful, usually because the defendant doesn’t show up in court. As much as 90% of the time, the defendant in a consumer-debt lawsuit in New York fails to respond. And when a defendant does show up in one of these cases, the collectors often give up rather than try to prove the debt exists.
It seems like an area where a little bit of helpful advice could go a long way.
That is what led Reverend John to team up with Upsolve—a nonprofit co-founded and currently chaired by Rohan Pavuluri, that is dedicated to helping Americans access their civil legal rights for free. Upsolve began by offering a free app to walk people through Chapter 7 bankruptcy—an award-winning innovation that has now helped relieve hundreds of millions of dollars in debt.
But bankruptcy was only a start. Upsolve’s next project, the American Justice Movement, was designed to train volunteers like Reverend John to give the basic legal advice people need to defend themselves against the sorts of debt-collection suits that plague so many New Yorkers.
The truth is that responding to these lawsuits is not that complicated. New York has even created a form that allows people respond to a debt lawsuit by checking a handful of boxes. But even that form is complicated for people who have never navigated the legal system (one of the boxes asks whether someone wants to invoke the doctrine of “laches”), and the American Justice Movement is designed to bridge that gap by walking people through the form and answering their simple questions (like “what the heck is ‘laches’?”).
The problem? The sort of advice contemplated by Upsolve’s new project, where trained community advocates provide one-on-one advice, is a crime. If Reverend John (or anyone like him) gives someone advice about how to respond to a lawsuit, it could land him in jail for up to four years for engaging in the “unauthorized practice of law.”
That is why Reverend John and Upsolve have teamed up with the Institute for Justice to challenge New York’s prohibition on legal advice from people who are not lawyers under the First Amendment. After all, it cannot be a crime simply to give someone advice—if it were, the nation’s jails would be filled with bartenders, barbers, and meddling aunts. The reason the nation’s aunts walk free is that the First Amendment protects everyone’s right to provide each other with useful advice—including on important topics like their legal rights.
And, indeed, for much of American history, advice like Reverend John’s would have been perfectly legal. At the time of the American Founding, courts restricted who could appear before a judge in court, but no one pretended to have the right to regulate who talked about the law outside of court.
Those restrictions are not just anticompetitive. They are unconstitutional. Restrictions on who is allowed to talk about the law run afoul of the First Amendment, which protects all Americans right to speak—about history, about medicine, and about the law. Vindicating that important principle will give all Americans—not just those who are lucky enough to have licensed attorneys on-call—the ability to access useful information about their legal rights.