North Carolina Nonprofit and Paralegals Sue State Over First Amendment Right to Give Legal Advice on Court-Created Forms

Phillip Suderman · January 4, 2024

FOR IMMEDIATE RELEASE: 1/4/2024

CONTACT:  Phillip Suderman, [email protected] (850) 376-4110

ARLINGTON, VA.— The North Carolina Justice for All Project (JFAP) wants to advise low- and moderate-income individuals about their legal issues. Founded in 2020, the organization wants to host free legal clinics at which its members, all experienced state-certified paralegals, can provide basic legal advice on filling out court-created forms for common legal problems. Additionally, two of its members, Morag Black Polaski and Shawana Almendarez, want to offer similar legal advice individually for a fee—at rates much lower cost than a traditional lawyer would charge.

Standing in their way is North Carolina’s broad prohibition on the unauthorized practice of law, which views all legal advice—whether free or paid—as the exclusive domain of state-licensed lawyers. But advice—including expert advice on legal issues—is speech protected by the First Amendment. That’s why Morag, Shawana, and JFAP 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.

“Legal advice is speech, and that speech is protected by the First Amendment,” said IJ Senior Attorney Paul Sherman. “The U.S. Supreme Court has held that the First Amendment protects expert advice, and that the First Amendment’s protection doesn’t go away simply because a speaker is paid for their advice.”

North Carolina has an access-to-justice problem. For many in the state, finding and affording a lawyer is difficult, if not impossible. This includes those JFAP calls 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.

That’s why JFAP was formed. For the last three years, the group has lobbied for legislative changes that would grant paralegals limited practice rights. But despite initial enthusiasm from some members of the legislature, the courts, and the bar, no legislative change has happened. But JFAP’s First Amendment rights do not turn on legislative grace. That’s why they’ve turned to the courts to vindicate their rights.  

The lawsuit challenges North Carolina’s prohibition on the unauthorized practice of law as applied to pure advice about court-created legal forms for commons issues like evictions, restraining orders, and uncontested divorces. Although JFAP wants to provide free advice about these forms at its clinics, the group is also adamant that allowing nonlawyers to charge a fee for similar legal advice is vital to bridging the access to justice gap.

“The free advice that JFAP could provide through its clinics is helpful, but ultimately it can only address a fraction of the unmet legal needs in North Carolina,” said co founder S. M. Kernodle-Hodges. “There needs to be an incentive for others to address these unmet legal needs, and the simplest way to do that is to allow them to charge for advice on filling out these court-created forms or referring them to alternatives that will assist with meeting their needs.”

IJ is currently litigating a similar case involving legal advice in New York on behalf of Upsolve, a nonprofit that similarly wants to have nonlawyers provide basic legal advice about court-created forms. In May 2022, a federal judge in New York granted a preliminary injunction allowing that group to offer its advice, concluding that the First Amendment protected its speech.

“For many potential clients of groups like JFAP and Upsolve, the alternative is not hiring a lawyer. It is going without help from anyone,” added IJ Litigation Fellow Christian Lansinger. “Forcing people to navigate the legal system on their own, when there are groups and individuals willing to offer help for free or for much less than a lawyer would charge, doesn’t serve anyone’s interests.”

Founded in 1991, the Institute for Justice litigates nationwide to defend property rights, economic liberty, educational choice, and free speech. IJ is also the nation’s leading legal advocate defending occupational speech. In addition to representing Upsolve, IJ has represented a wide array of occupational-speech clients, including a veterinarian who was fined for answering questions about animals that he hadn’t physically examined, and a woman who was prohibited from giving end-of-life guidance because she was not a licensed funeral director.

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                     To arrange interviews on this subject, journalists may contact Phillip Suderman, IJ’s Communications Project Manager at [email protected] (850) 376-4110. More information on the case is available at:  https://ij.org/case/north-carolina-upl/