the first amendment's constitutional protection of free speech is a cherished American freedom
it's often one of the very first safeguards pointed to that separates the United States
over even other representative republics. The right to speak frankly even critically on a
matter without interference by the government has long been understood as uniquely American
but this is an area where free speech and the First Amendment are losing ground: occupational
speech. Every every day Americans are being told that their right to free speech isn't actually
a right when they're talking for their job and that's what's happening in one of IJ's latest
cases we're challenging the right for a group of paralegals to be able to give basic legal advice
to willing customers many of whom don't have other options advice which the government is trying to
stop. We can't fill out forms. We can't discuss statutes. We can't explain particular things
because that considered a practice of law to some degree for North Carolina. And so because they've
spelled it out very clearly we we don't do it and the lawsuit will allow us to have an opportunity
to have those discussions or to be able to provide those services without penalty that was S.M.
Kernodle-Hodges discussing the root of her lawsuit which she has teamed up with IJ to take on.
With us here today are attorneys Paul Sherman and Christian Lansinger who are
advocating for her in fighting this case. Paul, Christian, thank you for joining us.
We recently launched this case in North Carolina can you take us through who the
clients are and what the case is about. So we represent the North Carolina Justice
for All project which is a nonprofit founded in 2020 to expand access to Justice in North
Carolina and for the last three years what they've been doing is trying to create some
kind of limited right for paralegals to provide alternative legal services to lawyers they've
tried to get it done legislatively and they have hit a brick wall in the state senate so
with no other options what they've decided to do is join with IJ to sue for their right to provide
this advice because fundamentally legal advice is speech and it's protected by the First Amendment.
And it's important to note that all six of these women are state certified
paralegals with decades of experience. All six of them have provided the same
legal advice before but under the supervision of an attorney and two of these women in particular
Morag Black Polaski and Shawana Almendarez want to provide this advice for free as part of the
justice for all project but they also want to provide this advice for compensation at
a rate that is much lower than the rates that are currently charged by attorneys.
So guys what makes IJ uniquely situated to take on this case?
IJ is the nation's leading legal advocate defending occupational speech.
We've been doing it longer than anyone and we've done it in a wider variety of cases than
any other group we've filed cases defending the right of people to give dietary advice
psychological advice and we've also filed other cases including one that's going on in New York
right now involving the right of non- lawyers to give legal advice and fundamentally what
all of these cases recognize is that advice is speech protected by the First Amendment and when
occupational licensing laws burden that speech the government has to demonstrate that there's a real
problem and that it has regulated in as narrow a way as it possibly can and we don't think it
can do that here we think that our clients can give this kind of advice safely and that it can
be a tremendous benefit to North Carolinians who otherwise might not be able to afford a
lawyer and whose only other option is to try and navigate these legal problems all on their own.
And so you mention obviously now that it's a First Amendment case most people when they think about
the First Amendment they might not be thinking about how that applies to their everyday jobs
and their work so can you talk to us a little bit more about about that and explain a little
bit more about how free speech is beyond what people might typically think about?
Yeah so and this is something that has been a core component of 's First Amendment work
since we were founded in 1991 because you're right A lot of people when they think about the
First Amendment they do think about political protests or they think about offensive speech
or things like that but there's nothing in the first amendment in the text of the first
amendment that limits it to political speech. The First Amendment says Congress shall make
no law abridging the freedom of speech one of the things that we've argued for over 30 years
is that this means that for example commercial speech commercial advertising is entitled to the
full protection of the First Amendment. We have also pioneered the argument that
occupational speech speech that people earn their living through is similarly entitled to
the full protection of the First Amendment and this was something that a lot of lower federal
courts had rejected for many years before IJ started started litigating in this area.
And then finally a few years ago, in a case called National Institute of Family and Life Advocates
versus Becerra, the Supreme Court made clear that there is no exception to the First Amendment For
Occupational speech or professional speech however you want to label it. That means that
the First Amendment fully applies even if you're giving specialized advice on complicated topics
whether that's law, diet, medicine or anything. So in essence you're saying advice is speech and
all speech is protected. That's exactly right.
With the limited exception that if the speech was fraudulent or it was perhaps inciting violence,
there are limited exceptions that the Supreme Court has provided where speech isn't protected.
But the Supreme Court has explicitly stated what those categories of speech are these women would
not be able to go out and pretend that they're lawyers and tell people they're lawyers or tell
them that they're experts in something that they're very that they know themselves are not
experts in but then when it comes to legal advice or advice about any kind of subject like someone's
legal rights just because that subject might be something that's important doesn't mean that it's
any less protected yeah that's a critical point so a person who falsely holds themselves out as
being a lawyer when they're not a lawyer is engaged in fraud and fraud is not protected
by the First Amendment and there are all sorts of other consumer protection laws that can apply
to people who advertise services that they can't adequately provide but when it comes to the actual
advice itself the principle is the same as it would be with a book anyone is allowed to write a
book of legal advice and there is no principle in First Amendment law that would draw a distinction
between a book on legal advice and giving that legal advice to someone in a conversation.
It makes me feel un underutilized. It makes me feel that um I have the tools to help someone
in a hardship and I just simply cannot do it because I risk being prosecuted for it.
That was Shawana Almendarez who is part of the suit.
In it she described the potential punishment she could face for simply trying to help
people using her legal expertise, which brings us to the next part of why this
type of service should be allowed. It goes beyond a legal argument and
into a practical argument about making people's lives better.
The missing middle is is it's not the rich, it's not the poor, it's the in between, it's
the uncounted group um that may not necessarily be in the LIEM community that we discussed earlier,
the lowincome and economically marginalized. We're seeing that families can make $125,000
a year and still not be able to pro um pay for legal services or retain
counsel and and still need that same support. So tell us a little bit more about this missing
middle and what they're trying to address. As Kernodle mentioned the missing middle is a
group of moderate income individuals and families that might be able to afford some legal services
but not the high extraordinarily High rates of licensed attorneys that might go as high
as $500 an hour. What makes them unique is that, not only can they not afford the high rates of
licensed attorneys when they need legal help, but they also are ineligible for legal aid and some
of the free legal services that are available to them because the income cap for these Legal
Aid Services are very low it's generally just above the federal poverty level so not only
can these individuals not access paid Services they can access free legal services and they
have no access to Justice whatsoever. That's definitely a barrier that we
need to address and I'm glad that there are individuals like them willing to fight and do it.
So Paul, this isn't 's first case um going up against the unauthorized practice of
law. Can you talk to us a little bit more about IJ's history here?
Yeah so IJ has another case that's currently before the second circuit US court of appeals
uh which covers the state of New York. The case is called Upsolve V James and like this case,
Upsolve involves non-lawyers who want to provide limited legal assistance to people facing common
legal issues. In Upsolve it's essentially bogus debt collection actions there are companies that
buy up debt and then they try to collect and many people lose those cases not because the
debt is meritorious but because they simply don't know how to respond to these lawsuits
and they can't afford a lawyer. So the court enters a default judgment against them and
then they're in a worse position even if the debt would otherwise have been legally uncollectible.
What upsolve wants to do is have non-lawyers who are trained provide a certain limited
amount of advice on how to respond to those lawsuits essentially telling them how to fill
out Court created forms and that's exactly what our clients want to do in North Carolina. Courts
have responded to some of the most common legal problems by creating informational packets and
court created forms for dealing with things like evictions, domestic violence restraining orders,
uh uncontested divorces and lay people with no legal assistance fill those out all the time but
because they lay people they don't always know the pitfalls of filling out those forms they can make
mistakes and even if they don't permanently prejudice their legal rights they can end up
delaying the resolution of their cases in ways that can cost them time and money. Just a little
bit of simple advice from someone who's familiar with the forms can save them a tremendous amount
of time and there's no reason why they should have to pay someone who went to three years of law
school to get that kind of advice. Absolutely and it sounds like some of those issues you mentioned
are also so emotionally charged and close they might need somebody to help them think clearly
to make sure that they're getting what they need done properly. That's exactly right and this is
something that our clients have stressed to us when we've talked to them specifically about civil
no contact orders and domestic violence restraining orders. These are extremely
vulnerable people who are upset. They may not have access to much monetary resources at all,
often they're in extremely controlling relationships which is another barrier to
their hiring a lawyer and someone who is familiar with this process who can walk them through the
forms to make sure they check the right boxes is really what they need so that they can get
justice and frankly so that they can stay safe. All they need is a little bit of help and
yet when I try to give them that help that's classified as the unauthorized practice of law.
Christian we just heard a clip from Morag Black on why this is so vital and not just
for the people involved in the lawsuit but for all North Carolinians. Is she right?
Morag's exactly right and she gets to a fundamental issue with the way that the
North Carolina law is designed right now. These forms are created by the courts so that people can
fill them out themselves it's only when they try to get help from someone who actually knows these
forms has seen them for decades that suddenly it becomes a problem and even when we know that a
lot of this advice happens all of the time this advice we see this with bartenders, cab drivers,
and in between family members and it's not an issue. It's only when someone knows what they're
talking about like these women at JFAP that suddenly these they can't provide this advice.
So does this case have implications beyond just allowing legal advice and would more people
benefit from a potential ruling in our client's favor than just the specific industry and state?
Absolutely. So the precedent that we hope to set in this case first of all would be broadly
applicable to these same kind of unauthorized practice of law statutes across the country
but also it raises fundamental questions about distinguishing between regulable professional
conduct and speech that is protected by the First Amendment and that issue arises in occupation
after occupation. So it's not limited just to legal advice, it can be dietary advice which is
subject to licensure under dietetics laws, it can be uh relationship advice which is subject
to licensure under psychology or therapy laws. So the precedent that we set here definitely can
be broadly applicable and speech protective. So somewhat of an elephant in the room here
but you two are attorneys and so maybe there are fellow attorneys who are opponents to this
and say that this could be problematic to allow people to advocate when they don't have a law
degree. Do they have a point? Well you know it's funny because people often would would needle us
when we would take on occupational licensing laws and they would say oh when are you coming after
lawyers and we would always tell them they're on the list just you wait. One of the things that
we had to do was build up precedent defending occupational speech before we could bring this
kind of case before it was viable but absolutely the same First Amendment principles apply.
As for the predictions that this is going to have some major negative effect I
think they just don't hold up to any kind of scrutiny for a couple of reasons. Number one,
the relief that we're looking for in this case is very narrow. There are a ton of things that
lawyers do that everyone agrees only lawyers can do, things like initiating litigation or
appearing in court on someone's behalf but this case is limited purely to providing legal advice
and as I mentioned earlier anyone can write a book of this advice so there's no reason why you
shouldn't be able to give it one-on-one in person. The other reason is that there is precedent for
allowing non- lawyers to provide this kind of advice and it comes from our closest legal cousin,
the country of England, because people may have heard of barristers and solic visitors
what most people don't know is that there's actually only six activities that are regulated
under the uh English unauthorized practice of law statutes and those things are appearing in court,
they are conducting litigation, things like conveying property, administering oaths,
notary activities but anyone is allowed to give regular legal advice and non- lawyers do give
unlicensed legal advice in England and there's no evidence that this has caused any significant
problems. That's important because under the First Amendment the government has to show that it has
considered less restrictive alternatives, like the English system, and found that they would
not work and here I don't think the state of North Carolina is going to be able to do that.
And it should be noted that for the people that want advice from someone like Morag and Shawana,
that alternative is not hiring a lawyer, the alternative is that they get no advice and they
go in by themselves. The Institute for Justice has lawyers and we represent people for free but
at the same time there's not enough lawyers doing pro bono work or law firms like IJ to represent
everyone who needs legal help. So it's important that we add people like Morag and Shawana who have
decades of experience in areas like family law a lot more than Paul or I do to actually help
people navigate these simple court created forms. Absolutely, if you wanted to fill out one of these
forms in North Carolina you don't want to be talking to me and you don't want to be talking
a Christian you want to be talking to Shawana and you want to be talking to Morag. Gentlemen,
thank you for walking us through this case today. Thanks to our courageous clients, and thank you
to everyone who supports the Institute for Justice and who tuned in today.