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YourABA | Ethics in View

Upsolve’s uphill battle with unauthorized practice of law

By Teresa J. Schmid, J.D., MBA, LP. D, CAE, ABA Center for Professional Responsibility

April 4, 2022

The following contains purely informational, educational, or technical material. The views expressed herein represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.

The justice gap exists in that social space where the people who most need the protection of the legal system are the least able to access it. Relentless poverty, resource scarcity and racism all work to keep the gap open. But there is also a powerful community of gap-closers. One of that community’s champions is Upsolve Inc., a 501(c)(3) nonprofit corporation whose mission is to help low-income people file bankruptcies for free and without lawyers by way of a specially designed app.

Upsolve, founded in 2016, immediately made its mark in the access-to-justice world, earning the support of many prestigious organizations, such as the Legal Services Administration and Harvard University. Time magazine named Upsolve as one of the magazine’s Best Inventions of 2020. Honors for Upsolve continue. On March 8, the Institute for the Advancement of the American Legal System named Rohan Pavuluri, CEO and co-founder of Upsolve, as the 2022 recipient of IAALS’ Alli Gerkman Legal Visionary Award. Upsolve has proven itself to be a serious player with many substantive accomplishments to its credit. It is also preparing to launch a new service with a lawsuit as its opening salvo.

On Jan. 25, plaintiffs Upsolve and the Rev. John Udo-Okon filed a complaint in the United States District Court, Southern District of New York, against defendant Letitia James, in her official capacity as attorney general for the State of New York. On the same day, Reuters published an article summarizing the 30-page pleading. The court docketed the complaint as a civil action for deprivation of rights. In the complaint, Upsolve announced that it developed and obtained funding to implement a new initiative called the American Justice Movement. AJM’s purpose would be to train nonlawyer professionals to provide free legal advice to individuals facing a debt collection lawsuit. The proposed advice would be “reliable, free, straightforward and narrowly circumscribed.” The complaint described the critical need for such services and seeks to bridge the justice gap for people who have no meaningful access to the legal system and face serious, even disastrous, consequences in their lives for lack of it.

Upsolve asked the court to declare that the Unauthorized Practice of Law (UPL) rules violate the plaintiffs’ rights under the First and Fourteenth amendments as applied to the plaintiffs’ participation in the American Justice Movement. It also asked the court to issue a temporary and permanent injunction enjoining defendants and other agencies from taking any action that would interfere with plaintiffs’ intended activities. The complaint itself offers little authority to explain how such relief is legally possible.

The NAACP provided helpful guidance in its brief filed on March 3, in support of the complaint. The civil rights organization cited cases preserving freedom of association for groups that engaged in collective action to provide free legal services to people without the means to hire lawyers. To its credit, the NAACP disclosed in a footnote to its brief that the cases cited involved legal solicitation, not UPL. They did not address the core issue in Upsolve, which is whether nonlawyers providing legal advice as described in the complaint constitutes unauthorized practice of law.

Going forward, the plaintiffs will experience an avalanche of questions, not only from the court during the litigation, but from the legal community at large. Example: Do plaintiffs violate UPL rules by training other nonlawyers to violate UPL? If not, why would they need an injunction against the attorney general? What specific actions do plaintiffs seek to enjoin, and by whom? What are the other enjoined agencies? What would constitute interfering in plaintiffs’ planned activities?

For that matter, to what UPL rules do the plaintiffs refer? Statutes? Rules of Professional Conduct? Nonlawyers are generally not subject to the professional conduct rules, unless they seek privileges to do so in limited circumstances, as detailed in Oregon’s proposed Legal Paraprofessional Licensing Program. The granting of privileges would trigger public protection questions: To whom are the legal professionals accountable? How is their competence established? Do they have client trust accounts? Legal malpractice insurance?

The plaintiffs and their supporters are sophisticated legal players. They have undoubtedly anticipated these questions and many more. The plaintiffs are prepared and will be watched. Many lawyers and nonlawyers alike will eagerly follow the unfolding of plaintiffs’ strategies during the Upsolve litigation, including the following: If the plaintiffs wish to enjoin judges, how will they deal with the exception in 42 U.S. Code §1983: “[I]n any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

Inquiring minds will want to know.

Teresa J. Schmid is the director of the American Bar Association Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. She is licensed and active in Illinois, California and Oregon.

The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.

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