Last year, a Federal District Court judge found that New York’s unauthorized practice of law statute violated the First Amendment’s protection of freedom of speech of a pastor who wanted to help members of his congregation sued in debt collection cases by providing forms and explanations on how to fill them out and on how to file them. The case is currently pending on appeal before the Court of Appeals for the Second Circuit.
I am writing about this today because a couple of weeks ago, Professor Bruce Green (Fordham Law) wrote an Op-Ed piece in the New York Times supporting the view that states should ease up on restrictions on the practice of law. The article summarizes his view which he also argued in an amicus brief filed before the court. You should read the whole thing, but here is an excerpt:
[L]aws prohibiting the “unauthorized practice of law” hurt those who cannot afford a lawyer. Even those who have relevant training or personal experience but are not lawyers may not offer free advice on how to handle a common legal problem. . . .
. . . .
New York’s attorney general, Letitia James, argues in part that this is not a freedom-of-speech issue at all because [if allowed to do what he wants to do, the plaintiff would be applying “legal knowledge, judgment and skill to the facts” of an individual’s legal problem. That, she says, is the“practice of law,” not speech . . .
When legal assistance requires highly specialized skills and knowledge, it becomes increasingly legitimate for the state to insist that only a lawyer provide it – for example, representing a client in a courtroom where one needs to know particularly complex procedural and evidentiary rules and other law, or drafting certain legal documents without a reliable model.
But it is unreasonable for states to forbid people to apply a modicum of legal knowledge, judgment and skill to their neighbors’ legal problems. . . . But for the unauthorized practice restrictions [social workers, librarians and teachers] too could learn how toassist people in low-income communities who have simple legal problems and no meaningful access to lawyers.
The broad-reaching laws barring the unauthorized practice of law impose too high a cost on those who can least shoulder it. . . .
. . . .
The unauthorized practice prohibitions should not stand in the way of those seeking help with common legal problems from others in their communities who can capably provide it. . . .