A Charter Right to Advise – Even Without a License?

Slaw.ca Access to Justice Column, February 2 2023

Found online at: https://www.slaw.ca/2023/02/02/a-charter-right-to-advise-even-without-a-license/

A new American case, Upsolve v. James, suggests that freedom of expression might protect the right of non-lawyers to offer legal advice.

In both Canada and the USA, lawyers have a near-monopoly on legal advice. If anyone tells someone else how the law would apply to their circumstances, the first person is probably deemed to be “practicing law.” That is something that only lawyers are allowed to do.

There are a few exceptions. In Ontario, for example, (i) licensed paralegals acting within their scope of practice, (ii) people giving occasional advice to friends or family, and (iii) employees of some non-profit organizations can provide legal advice in narrowly defined circumstances even if they aren’t lawyers. But apart from these narrow carve-outs, advising — even if you’re not being paid for it — is practicing law. If you haven’t been called to the bar, you can be prosecuted and fined by your province or territory’s law society.

What’s at Stake?

In this as in many other aspects of legal services regulation, Canada and the United States are noticeably stricter than most comparable jurisdictions elsewhere in the world. Some countries — including the United Kingdom — allow just about anyone to give legal advice. This doesn’t mean that unlicensed advisors can say whatever they want without consequence. If the advice is bad or negligent, the advisee can sue the advisor or pursue other remedies. However only things like courtroom advocacy and drafting are reserved exclusively for lawyers.

The prohibition of unlicensed advice-giving is a policy choice with pros and cons. Bad advice to clients can have serious consequences. Restricting it to licensed lawyers may improve the chance that the advice will be good. If it isn’t good, the licensing requirement also ensures that the client has access to a regulator and professional indemnity insurance to compensate for their losses. On the other hand, lawyers and other officially-authorized sources of legal advice-givers are inaccessible to many people who need help, mostly because people can’t afford them and the government won’t pay.

The arguments on both sides are familiar to veterans and observers of legal services regulation debates, such as the battles over paralegal practicealternative business structures, and self-regulation. The strict and traditional status quo is defended on the grounds that it upholds professional integrity and gold-plated service quality. Those who would liberalize point to the potential of market innovation, competition, and a greater diversity of providers to improve our dire access to justice situation. These potential new competitors, whom lawyers exclude using the levers of self-regulation, could threaten the incomes of lawyers. This fact is usually unspoken, but widely understood.

Something New

But a new idea just came along. Maybe the near-total prohibition on unlicensed advice-giving runs afoul of the constitutional right to freedom of speech.

Upsolve is an American non-profit corporation whose goal is to “ensure that all Americans can access their legal rights.” Their focus is on credit collection and bankruptcy proceedings. Upsolve has recently devised a program that aims to provide advice to tens of thousands of low-income people in New York State who facing debt collection lawsuits. Today, these people generally have no legal advice, and are unaware of their legal rights and options. Upsolve proposes to train dozens of “Justice Advocates” who will let people know about their rights in consumer debt matters. They will help those who have been sued to fill out a one-page form, created by the state, to respond to these lawsuits.

Here’s the twist: none of the advisors will be lawyers. They will be volunteers, including religious leaders and those who work on a daily basis with low-income populations. As such, they would have been subject to prosecution by the New York State Attorney General for unauthorized practice of law. Upsolve therefore sought an injunction against such enforcement action.

In Upsolve v. JamesJustice Paul Crotty of the US District Court granted the injunction. The Court noted that the potential social benefit of the program was promising: “Plaintiffs’ program would help alleviate an avalanche of unanswered debt collection cases, while mitigating the risk of consumer or ethical harm.” Meanwhile, Upsolve was proposing only a small incursion on New York State’s lawyer licensing regime. The Justice Advisors would do no more than advise — they wouldn’t go to court or draft anything. To advise someone is to speak to them, and the First Amendment to the United States Constitution forbids government to pass any law or take any action “abridging freedom of speech.” Thus, New York State was enjoined, on an interim basis, from prosecuting Upsolve or its Justice Advisors for the unauthorized practice of law. The case is now proceeding to a full hearing.

Could it Happen Here?

We should watch closely. Canada’s Charter also protects freedom of speech, and there is no apparent reason why a similar argument couldn’t be tried in our courts.

The access to justice discourse can become depressingly repetitive. The same problems are highlighted year after year, and the same potential solutions are discussed in report after report. With the best of intentions, authorities occasionally set out to make reforms. But after all the stakeholders are heard from the changes are vanishingly small and the needle scarcely moves when it comes to actual access to justice on the ground. Upsolve’s bold, novel constitutional litigation strategy is, at very least, a breath of fresh air. Whether it turns out to be the beginning of the end for the prohibition of non-lawyer advising remains to be seen.

For more, see Prof. Rebecca Sandefur, “We Can’t Rely On Lawyers For Every Justice Need.” https://www.law360.com/articles/1494415/we-can-t-rely-on-lawyers-for-every-justice-need