Overview
In an opinion Tuesday, Judge Crotty preliminarily enjoined New York State from enforcing unauthorized practice of law ("UPL") regulations against a non-profit that counsels New Yorkers facing debt-collection actions (see our prior coverage here).
Judge Crotty found that UPL regulations were commonly upheld as regulating conduct, but, as applied to the that the program at issue, the UPL regulations governed speech:
[M]any 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. Conduct could also include "representing" clients in a courtroom or proceeding.
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.
Judge Crotty further found that, in the context of this case, the UPL regulations operated, impermissibly, as a "content-based" regulation on speech:
If Justice Advocates provide non-legal advice about a client's debt problem (by, for example, advising that person to cut down on spending to pay off debts), the UPL rules do not apply. But if they provide legal advice about how to respond to the client’s debt problem (by advising that person on how they should fill out the State-Provided Answer Form, based on their specific circumstances), the UPL rules forbid their speech. Their actions are therefore, by definition, content-based speech.
Concluding that Plaintiffs' legal advice is content-based speech is not only in line with modern First Amendment authority; it is also the intuitive result. At its core, Plaintiffs' action is indisputably speech, not conduct. "If speaking to clients is not speech, the world is truly upside down." The Court shall not ignore common sense by construing Plaintiffs’ legal advice as something it is not.
