Nonprofit, Paralegals Sue To Take Down NC Legal Advice Law

By Travis Bland and Hayley Fowler | January 4, 2024, 9:31 PM EST ·

A North Carolina nonprofit is challenging a state law banning anyone but a fully licensed attorney from offering legal advice, saying in a federal lawsuit Thursday that the regulations amount to an unconstitutional restraint on free speech in violation of the First Amendment.

The North Carolina Justice for All Project and two of its paralegals sued state Attorney General Josh Stein in the Eastern District of North Carolina opposing the state's ban on what's known as the unauthorized practice of law, or UPL, which makes it illegal for anyone but a licensed lawyer to give legal advice, paid or otherwise, in the Tar Heel State.

The group argued that the law is not narrowly tailored nor does it serve a compelling government interest, noting there are other less-restrictive measures the state has failed to consider.

"Plaintiffs have a First Amendment right to give this advice, and the North Carolinians they would advise have a First Amendment right to hear it. That is because advice — including even expert advice on technical subjects — is speech," the complaint states.

The plaintiffs include Morag Black Polaski and Shawana Almendarez, both North Carolina residents and veteran paralegals who are members of the Justice for All Project.

According to the complaint, the North Carolina Justice for All Project is composed of five certified paralegals across the state who are committed to "bridging the access to justice gap." But the state's broad ban on UPL has severely limited their ability to offer free legal services, the nonprofit said, and the group has instead largely focused on advocacy efforts.

Those efforts included a proposal to the North Carolina Supreme Court and the State Bar to create a new class of legal service providers known as legal technicians who could provide legal advice to low- and middle-income residents in select high-need areas, like family and landlord-tenant law, the lawsuit states.

Nothing ultimately came of the proposal, and the Justice for All Project said it subsequently refocused its efforts last year on making legislative changes. But a similar recommendation to the North Carolina General Assembly also stalled, prompting the group to file suit.

In their complaint, Polaski, Almendarez and the Justice for All Project said there are thousands of statewide and local judicial forms for pro se litigants to fill out. Though the state offers what's known as a guide-and-file system to help determine what legal documents an individual may need, the system contains clear disclaimers warning it can only provide "legal information, not legal advice," according to the lawsuit.

The North Carolina Justice for All Project said its paralegals have filled out some of those forms but can only do so while being supervised by a licensed attorney. Not only are they riddled with jargon, the nonprofit said, but pro se litigants often fill them out incorrectly, preventing them from obtaining the relief they want.

"Based on plaintiffs' experience with these forms, many North Carolina residents have a legitimate, civil legal need, but due to the emotional turmoil of their situations and lack of familiarity with the procedures, they cannot fill out the forms timely or correctly," the complaint states.

The Justice for All Project could help with that, the suit alleges, by explaining what the terms mean, what forms need to be filled out and what information should be included. But the state's UPL allegedly makes that impossible.

Under the law, any individual who is not a licensed attorney and who is found to have offered legal advice, whether paid or for free, faces misdemeanor charges and up to 120 days in jail, the Justice for All Project said, even for something as simple as filling out court forms.

As a result, attorneys in North Carolina have a "state-created monopoly on the provision of legal advice," the nonprofit said.

The state's UPL ban has forced Polaski and Almendarez to self-censor out of fear of prosecution, even when they have legal advice they know to be accurate that could help an individual, according to the complaint.

The plaintiffs are seeking a declaration that North Carolina's UPL ban violates the First Amendment and an injunction preventing officials from enforcing the law.

In a statement to Law360, Paul Sherman of the Institute for Justice, who is representing the plaintiffs, said advice on a technical legal topic like the law is still speech that is protected by the First Amendment.

"The North Carolina Justice for All Project and its members have a First Amendment right to share their knowledge with people who need legal assistance, and those people have a First Amendment right to seek out and hear that advice," Sherman said.

A spokesperson for the state Department of Justice said the attorney general's office is reviewing the complaint.

The plaintiffs are represented by Vince Eisinger of Cranfill Sumner LLP and Paul M. Sherman and Christian W. Lansinger of the Institute for Justice.

Counsel information for Stein was not immediately available Thursday.

The case is Black Polaski et al. v. Stein, case number 7:24-cv-00004, in the U.S. District Court for the Eastern District of North Carolina.

--Editing by Rich Mills.

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