IJ Takes On the Legal Monopoly in North Carolina
America has a serious access-to-justice problem. For many Americans facing routine legal issues, hiring a lawyer to navigate these problems is simply unaffordable. And this problem isn’t 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 and confusing. What many of these people could use is some simple advice.
Enter the North Carolina Justice for All Project (JFAP). Founded in 2020 by North Carolina paralegals S.M. Kernodle-Hodges and Alicia Mitchell-Mercer, JFAP wants to help bridge the justice gap by hosting clinics at which one or more of JFAP’s members can offer free advice and assistance filling out court-created forms.
But the group is also adamant that free advice can address only a fraction of North Carolinians’ unmet legal needs. That’s where trained paralegals like JFAP members Morag Black Polaski and Shawana Almendarez come in. Both are North Carolina Certified Paralegals with extensive experience with the court-created forms for basic legal problems in North Carolina. And both could help North Carolinians fill out these forms for a fraction of what a lawyer would charge.
Unfortunately, North Carolina’s broad prohibition on the unauthorized practice of law gives licensed lawyers a monopoly on providing even the most basic legal advice, whether paid or unpaid. Violations of the law are Class 1 misdemeanors punishable by up to 120 days in jail.
But legal advice is speech protected by the First Amendment, which is why JFAP, Morag, and Shawana have joined with IJ to file a federal lawsuit to vindicate their right to give basic legal advice about court-created forms.
JFAP’s case is not IJ’s first to raise these issues. IJ is currently challenging New York’s similar prohibition on behalf of the New York nonprofit Upsolve, which wants to assist low-income New Yorkers in responding to bogus debt-collection lawsuits. And our arguments are having an impact: A federal judge in that case recently held that “concluding that … legal advice is … speech is not only in line with modern First Amendment authority; it is also the intuitive result.” After all, “if speaking to clients is not speech, the world is truly upside down.”
Although Upsolve’s case involves only unpaid legal advice, the U.S. Supreme Court has been clear that the First Amendment applies equally to both paid and unpaid speech. And allowing non-lawyers to provide basic legal advice for pay is far less radical than it may sound. In fact, it is the way things work in England, where anyone is allowed to provide legal advice, with or without a license, as long as they don’t falsely hold themselves out as a barrister or solicitor.
The same principles should apply here. JFAP, Morag, and Shawana don’t pretend to be lawyers, but they have valuable advice for vulnerable North Carolinians. Under the First Amendment, the state should get out of their way and let them give it.
Paul Sherman is an IJ senior attorney.
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