Court Upholds New York’s Limits on Unauthorized Practice of Law

Under the First Amendment, a state may pass no law abridging “the freedom of speech.” This provision generally gives everyone a right to express themselves through words or conduct. In deciding a First Amendment challenge, the first step is to determine whether the law at issue restricts expression—that is, whether “the conduct triggering coverage under the statute consists of communicating a message.” In this case, the Second Circuit already has held that “New York’s UPL statutes, as applied to Plaintiffs, constitute a regulation of speech.”

The next step in a First Amendment analysis is to determine whether the law’s applicability to particular speech turns on “the topic discussed or the idea or message expressed.” If so, the law is generally considered “content based” and subject to strict scrutiny. If, instead, the law is justified “without reference to the content of the regulated speech,” the law is considered “content neutral” and subject to intermediate scrutiny. The Second Circuit has determined that New York’s UPL Rules “are content neutral and thus subject only to intermediate scrutiny.”

The final step (and the only one at issue here) is the application of intermediate scrutiny on which the government bears the burden of proof. Content-neutral regulations of speech are lawful only if they (1) “advance[ ] important governmental interests unrelated to the suppression of free speech” and (2) “[do] not burden substantially more speech than necessary to further those interests.”

Under the first prong of this standard, the government must show that the challenged law seeks to address governmental interests that are “important” and “real” (as opposed to “merely conjectural”) and that the regulation will address the problem “in a direct and material way.” Under the second prong, the government must show that the regulation does not “burden substantially more speech than is necessary” to further the government’s interests. The regulation need not be “the least speech-restrictive means” of addressing the problem.

Rather, a court must afford the government a certain “latitude” and may not invalidate a law “simply because [it] concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” So long as a regulation is narrowly tailored to advancing governmental interests that “would be achieved less effectively absent the regulation,” a court must defer to a government’s reasonable determination about “how much protection of [those interests] is wise and how that level of [protection] is to be attained.” It follows that the validity of a content-neutral regulation “depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interests in an individual case.”

The government often will need to adduce evidence to demonstrate that a regulation withstands intermediate scrutiny—such as proof that obvious, substantially less-speech-restrictive alternatives would not advance the government’s interests just as effectively. But a court may conclude that a law is narrowly tailored to important government interests at the pleading stage, without resort to extrinsic evidence….

New York has a “well-established interest in regulating attorney conduct and in maintaining ethical behavior and independence among the members of the legal profession.” It cannot reasonably be disputed that this interest qualifies as “important”—indeed, the Supreme Court has described it as “compelling” and “substantial.” The goal of such regulations is to protect the integrity of “the primary governmental function of administering justice” as well as to “protect the public from ignorance, inexperience and unscrupulousness.”

The UPL Rules, in conjunction with the qualifications for licensure, clearly further these interests. The regulations require that those wishing to practice law obtain legal education, pass examinations designed to measure their competency to practice law, and demonstrate that they have the moral character and fitness to serve as an officer of the court. “[L]icensure based on specified standards of education, experience, and testing” is a form of regulation long recognized “directly and materially to alleviate concerns about ignorant, incompetent, and/or deceptive” conduct by professionals…. The complaint itself acknowledges that the UPL Rules “are designed to protect consumers from the risk of unreliable or unscrupulous representation and thereby increase public faith in the justice system,” and that the law serves those purposes “in many applications.”

The state’s interests are particularly strong here. In the context of plaintiffs’ lawsuit, the UPL rules are being applied to the giving of individualized legal advice about how to respond to a pending lawsuit, including what legal defenses to raise (or not raise). That advice will be given in an organized setting in which clients will be asked to sign a “User Agreement” in exchange for receiving assistance from non-lawyers who will identify themselves as “Justice Advocates.”

Many of the risks that the licensure of attorneys guards against are at or near their apices in this context. A person without proper legal training may provide incompetent advice that prejudices a client’s legal rights. Or a person with questionable moral character may proceed in a representation despite a clear conflict of interest or advise a client to make statements that mislead the court. Ensuring that anyone providing formal advice on how to complete an Answer Form is “trained, examined and licensed” clearly advances the State’s interests in avoiding those risks.

Plaintiffs suggest that the UPL Rules do not advance the state’s interests as applied to them because Justice Advocates would give “reliable, truthful, and non-misleading” advice. But those allegations—perhaps more properly “predictions”—are “beside the point.” The question is whether the UPL Rules further the state’s interests as applied to “the general circumstances of [plaintiffs’] acts,” not as applied to plaintiffs’ “individual case.” Here, those general circumstances are the giving of legal advice, in an organized setting, to New Yorkers actively being sued. The licensing requirement directly advances the state’s stated goals when “considering all the varied groups” that may seek to engage in that type of speech….

[T]he UPL Rules, as applied, are narrowly tailored as a matter of law. To start, the UPL Rules restrict only the giving of legal advice to a specific person about that person’s individual legal problems.

New York does not prohibit plaintiffs (or anyone else) from speaking publicly about legal issues, including through the publication of self-help materials. Plaintiffs would be free to post their Training Guide online or distribute it as a pamphlet, complete with all the same advice as to when each defense on the Answer Form should be raised. They would be free also to publicly decry the high rate of default judgments in debt-collection cases and to push for whatever policy reforms they deem necessary. The only thing plaintiffs cannot do is advise a specific person about his or her individual case—the circumstances in which incompetent and unscrupulous legal advice is most likely to be relied upon and thereby cause harm….

After substantially narrowing their scope by definition, the UPL Rules impose a restriction on speech rather than an outright prohibition. Anyone can give legal advice to individual clients so long as they obtain a license. To obtain such a license, a person must satisfy educational, testing, and character requirements that are tailored to the state’s interests in avoiding ignorant, incompetent, and unethical conduct.

New York does not need to take plaintiffs’ word when they say that Justice Advocates will provide only “truthful and non-misleading advice” …. Further demonstrating that New York carefully has considered the need to balance competing interests in this area, Justice Advocates could qualify for an exemption from the licensing requirement by completing only two semesters of law school and finding an approved, lawyer-run program to supervise them.

The only remaining issue is plaintiffs’ contention that the licensing requirements are too burdensome as applied to them. As Judge Crotty’s thoughtful opinion noted, there is no doubt that New York could “impose targeted trainings or educational standards on Plaintiffs short of a full Bar certification.” And the complaint alleges that some states and federal agencies permit non-lawyers to perform certain legal work. Such alternatives might demonstrate that the UPL Rules are not the least restrictive means of addressing the state’s interests.

But this Court is applying intermediate, not strict, scrutiny. It may not strike down the UPL Rules “simply because [it] concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” Rather, because the UPL Rules are substantially related to advancing the state’s legitimate interests, the Court must defer to New York’s reasonable decision about “how much protection of [those interests] is wise and how that level of [protection] is to be attained.” Accordingly, “[t]hose alternatives do not alter [the Court’s] tailoring analysis.”

The UPL Rules are narrowly tailored for the reasons just explained. They apply only to individualized legal advice, leaving much law-related speech unregulated, and they prohibit a person from speaking only until he or she has obtained sufficient training in the law, permitting anyone willing to satisfy those requirements free to speak as he or she wishes.

For those reasons, and as applied to the type of speech in which plaintiffs seek to engage, the UPL Rules advance the state’s content-neutral interests without burdening a substantial amount of speech that is unlikely to bring about the evils against which the rules are directed. Beyond that, the Court cannot second-guess the New York Legislature’s reasoned, policy-laden decision as to how much training and experience is enough training and experience—a decision that goes merely to “how much protection of [the government’s interests] is wise.”

Plaintiffs’ misplaced reliance on McCullen v. Coakley underscores that conclusion. There, Massachusetts had enacted a law that prohibited essentially all speech within a 35-foot radius of any abortion clinic during business hours. After reciting various alternatives that would have “burden[ed] substantially less speech” and that appeared readily capable of furthering the government’s interests, such as laws targeted at harassment and obstruction, the Court held the law was not narrowly tailored.

The difference between a blanket prohibition on speech near abortion clinics and a law prohibiting only harassing or obstructive conduct near abortion clinics, is not the same as the difference between imposing some educational, testing, and fitness requirements and imposing less educational, testing, and fitness requirements. A ban on any speech within a geographic area unquestionably “suppress[es] a great quantity of speech that does not cause the evils that [the ban] seeks to eliminate.” An alternative that bans only harassment would substantially narrow that overbroad scope.

In contrast, New York’s law requiring a license to give one-on-one legal advice will advance the state’s interests in a substantial number of its applications to speech like the AJM. Tweaking the prerequisites for licensure would not substantially alter the amount of speech burdened by the law. No amount of extrinsic evidence could demonstrate that obtaining a law degree, passing standardized tests and a course on New York law, and demonstrating one’s character and fitness to practice law are requirements so unreasonably burdensome that the state has exceeded the “latitude” it enjoys to “design regulatory solutions to address content-neutral interests.” …