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| Rebecca Sandefur |
These problems have legal solutions, but cost, complexity and confusion lock most people out of using the law to find justice. The number of lawyers in the U.S. has increased nearly fourfold in the last 50 years, yet most people still get no help from lawyers with their civil justice problems.
Many people who are not lawyers could be providing valuable help, but the law blocks them from doing so. A pastor in the South Bronx and a nonprofit organization are fighting New York state to change that in a case, Upsolve and Rev. John Udo-Okon v. New York, that was argued on May 12 in the U.S. District Court for the Southern District of New York.[1]
Udo-Okon wants to help his neighbors and parishioners when they are sued for debt, as millions of Americans are each year.[2] He wants to give them basic information and advice about their legal options.
Upsolve Inc.,[3] a nonprofit that supports people facing debt and bankruptcy, wants to train Udo-Okon and others to provide that free service for their neighbors.
Unfortunately, this is against the law. When even well-trained people provide that kind of help, they violate state statutes prohibiting the unauthorized practice of law, which makes it a crime.
Lawyers are often critical to a flourishing democracy, but they are not the solution to every justice problem.[4]
The defendant in this case is a lawyer — the attorney general of New York, Letitia James. A group of legal aid lawyers, whose job is to help low-income people with civil justice problems, have joined the attorney general with a friend-of-the-court brief that supports the bar's monopoly.
These lawyers should be fighting for justice, not protecting their privilege.
These well-meaning lawyers are laboring under a deep misunderstanding. We can all agree that people facing life-altering legal issues should be able to get help in facing them. The evidence is very clear that they seldom do.
Most people who face justice issues like unmanageable debt, bankruptcy, attachment of their wages, or losing their homes get no legal help from anyone.[5]
The unauthorized-practice-of-law rules that this court case challenges might have been intended to protect the public; instead, they hurt us all.
Restricting the domain of law to lawyers is supposed to protect people from bad advice offered by legal helpers who don't know what they're doing. But a 2013 survey by Deborah Rhode and Lucy Ricca[6] examining complaints in the U.S. about the unauthorized practice of law found that most come from lawyers, not people who were victims of bad advice.
Investigators usually find little evidence of harm to consumers — if they bother to investigate harm at all.
There's a reason these legal gatekeepers don't find a lot of consumer harm when they look at the kind of help Udo-Okon and Upsolve want members of the pastor's church to provide: Trained and specialized people who are not lawyers can provide competent, effective and meaningful help for people facing justice problems.
Social scientific research[7] from the U.S. has shown this for advocates[8] in employment, benefits and tax cases, where people who are not lawyers are already allowed to do this work.
It's the expertise that's critical, as the political scientist Herbert Kritzer found in a 1998 study of these lawyerless legal services; it matters little whether that expertise comes from formal training or from experience.
In 2015, a colleague and I evaluated[9] a program permitted by a judge in the New York City housing courts, where social workers, working as court navigators, helped tenants facing eviction. We found that when people had help from a navigator, the rate of eviction dropped from 1 in 9 cases to zero. People who are not lawyers can clearly do this work well.
Upsolve and Udo-Okon are little players up against big opponents: the attorney general and many of the 1 million-plus lawyers in the U.S. This is a classic David vs. Goliath story, but David shouldn't even need to wield his slingshot to prevail, because the story is fundamentally justice vs. lawyers.
It is telling who is lining up to support the little guys' side. For example, the liberal, anti-racist NAACP supports Upsolve and Udo-Okon, and so does the conservative, pro-liberty Institute for Justice, which advocates for small government. These are unusual partners in American political life, but they agree on the need to democratize people's access to their own law.
The stakes here are much larger than the question of whether a single nonprofit can work with a church to give free legal advice to people beleaguered by debt.
Ordinary people elect representatives to write laws meant to benefit everyone in society — that's what "equal justice under law" means — but ordinary people often cannot use those laws because they can't afford a lawyer, and because lawyers' monopoly on practicing law keeps those people from getting other help. When people and communities face life-altering legal problems, they deserve just solutions.
The federal court has the opportunity to safeguard justice and democratize the law by changing the way we regulate its practice. For years, we have tried relentlessly to do more of something that has not worked: relying on lawyers for all justice needs.
This case is an opportunity to open up space for something that can work: permitting trained community justice workers to provide help.
Justice is not a service offered by a service provider, it is an experience — that of receiving a just outcome.
Let's change the way we regulate law to focus on outcomes — not the credentials required to provide services, nor the institutions that gatekeep those credentials, but rather on the substantive outcome of access to justice, of resolving legal issues lawfully, of achieving just solutions.
By opening up the law in this way, we make justice accessible to the people for whom it is supposed to be accountable.
Rebecca L. Sandefur is a professor of sociology at Arizona State University and a faculty fellow at the American Bar Foundation, where she founded and leads the Access to Justice Research Initiative. She was named a 2018 MacArthur Fellow for her work on inequality and access to justice.
Disclosure: Sandefur submitted an amicus brief in support of the plaintiffs in Upsolve and Rev. John Udo-Okon v. New York.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://fingfx.thomsonreuters.com/gfx/legaldocs/byvrjmzdgve/Upsolve%20Complaint.pdf.
[2] https://www.pewtrusts.org/-/media/assets/2020/06/debt-collectors-to-consumers.pdf.
[3] https://upsolve.org/.
[4] https://www.nytimes.com/2019/02/13/opinion/legal-issues.html.
[5] https://www.americanbar.org/content/dam/aba/administrative/young_lawyers/meetings/2019/spring/cle_info/white-paper-what-we-know-and-need-to-know-about-the-cle.pdf.
[6] Deborah L. Rhode and Lucy Buford Ricca, Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement, 82 Fordham L. Rev. 2587 (2014) https://ir.lawnet.fordham.edu/flr/vol82/iss6/2/.
[7] https://www-cdn.law.stanford.edu/wp-content/uploads/2020/06/04-Sandefur-Website.pdf.
[8] https://www.press.umich.edu/15455/legal_advocacy.
[9] https://www.srln.org/node/1320/roles-beyond-lawyers-evaluation-new-york-city-court-navigators-program.