A Small Step For Non-Lawyer Practice - And Access To Justice: Upsolve, Inc. v. James

• Published date: 08 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Law Department Performance, Trials & Appeals & Compensation, Performance, Management
• Law Firm: Frankfurt Kurnit Klein & Selz
• Author: Mr Ronald Minkoff

Sometimes lawsuits lead to the right result for the wrong reason. And sometimes, the reasoning doesn't really matter: it is the result that counts. U.S. District Judge Paul Crotty's May 24, 2022 decision in Upsolve, Inc. v. James, No. 22-cv-627 (S.D.N.Y.) (PAC) ("Upsolve"), is an example of both.

Upsolve addresses - and approves - a radical solution to a dire problem. Upsolve, a not-for-profit organization, trains non-lawyers to provide limited legal advice to lower-income New Yorkers who face debt collection actions. Because so many defendants in those actions are pro se - a Pew Charitable Trusts survey sets the number at 90%, with 70% ending in default judgments [M. Reynolds, "Federal Judge Greenlights Legal Tech Company's Use of Nonlawyers for Legal Advice" (ABA Journal, May 26, 2022), citing Pew Charitable Trusts survey] - the New York court system has created a one-page "check-the-box" answer form for these defendants to fill-in to avoid default. Upsolve's goal is to train non-lawyers to assist defendants to complete the forms and file a proper answer.

Upsolve crafted its training program in an effort to avoid any future claim that the non-lawyers it trained were engaged in the unauthorized practice of law ("UPL"), which is still a crime in New York. See N.Y. Jud Law ' 476-a, 478, 484, 485. The trainees, known as "Justice Advocates", would use a training guide when helping others to fill out the form. The training manual requires the Justice Advocate to make clear that they are giving limited advice (only on how to fill out and file the Answer form), and that they will refer the client to a legal services agency if the client's legal needs go beyond that. The Justice Advocates must sign an affidavit saying they will follow the New York Rules of Professional Conduct regarding conflicts of interest, confidentiality and informed consent, and will provide their services free-of-charge. They are warned that if they violate these guidelines, they can be terminated from the Upsolve program or be prosecuted for UPL.

But Upsolve went even further to protect itself and its Justice Advocates from a UPL claim. It filed a federal lawsuit to enjoin the New York Attorney General from enforcing the UPL statutes against the Justice Advocates program - even though the AG had neither brought charges nor threatened to do so. Upsolve argued that such enforcement would violate Upsolve's and the Justice Advocates' First Amendment rights. In a rather surprising decision...