Yesterday, the Second Circuit decided Upsolve v. James, an appeal that had different advocates for low-income consumers taking opposing positions.
The case was brought by Upsolve, a nonprofit that seeks to provide free legal advice to New Yorkers facing debt-collection actions in state court via a cadre of specially trained, non-lawyer “Justice Advocates.” The problem is that, no matter how noble that intent may be, such advice constitutes the unlawful practice of law under New York law. Agreeing with Upsolve that, as applied to it and its Justice Advocates, the unfair practice law violated the First Amendment, a district court issued a preliminary injunction against the enforcement of the law as to them.
On appeal, the state was backed by a coalition of civil legal services organizations, consumer law and access-to-justice experts, and civil rights organizations as amici. The plaintiffs were themselves back by the NAACP, the National Center for Access to Justice, and libertarian groups as amici. In the end, the Second Circuit reversed and vacated the injunction holding (1) that the unfair practice law did regulate speech–not just conduct, but (2) that regulation was not content-based, and thus strict scrutiny did not apply. It remanded to the district court to determine whether intermediate scrutiny barred application of the law.
