Federal judge dismisses NC paralegals’ free-speech lawsuit

A federal judge has dismissed paralegals’ free-speech lawsuit challenging North Carolina’s law against providing legal advice without a license.

Paralegals Morag Black Polaski and Shawana Almendarez are working with the North Carolina Justice for All Project and the Institute for Justice to challenge North Carolina’s restrictions.

“Plaintiffs seek to provide simple legal advice to North Carolinians regarding completing common, court-related forms, such as those used for summary ejectments, absolute divorces, and protective orders,” wrote US District Judge Terrence Boyle in an order Monday. “But North Carolina prohibits the unauthorized practice of law by anyone who is not an attorney. Plaintiffs now challenge North Carolina’ s unauthorized practice of law (UPL) statutes under the First Amendment to the United States Constitution, alleging that they impermissibly restrict speech, specifically legal advice.”

Boyle rejected the plaintiffs’ arguments, granting a motion to dismiss from the six local district attorneys named in the federal complaint.

“Restricting the practice of law, including the provision of legal advice, to lawyers who have training, oversight, confidentiality restrictions, and against whom clients have recourse, plainly fits within the State’s substantial interest in protecting its citizens,” Boyle wrote. “North Carolina attorneys are also governed by the Rules of Professional Conduct, which imposes, inter alia, duties of competence and loyalty and requires attorneys to avoid conflicts of interests. Plaintiffs would not be governed by these rules, and, although they allege they want to provide only ‘simple legal advice,’ they also seek to provide advice in circumstances which can have wide-reaching effects, such as child custody matters.”

“Moreover, the restriction on the provision of legal advice does not prevent plaintiffs from sharing and distributing legal information,” Boyle continued. “Paralegals may also assist clients with filling out forms, provided there is appropriate supervision by an attorney.”

“In other words, North Carolina has struck a balance between limiting the practice of law and provision of legal advice to licensed attorneys and recognizing that paralegals are well-equipped to assist in the delivery of legal services,” the judge wrote. “Plaintiffs argue that other jurisdictions have adopted different approaches and allow paralegals to provide additional services directly to clients. Plaintiffs also note their own efforts in trying to persuade the North Carolina General Assembly to do the same.”

“That ‘[a]nother state legislature might balance the interests differently’ does not mean that the balance struck by North Carolina runs afoul of the First Amendment,” Boyle added. “North Carolina’s current limits on the practice of law and the provision of legal advice reasonably fit within its interest in regulating the legal profession.”

The 4th US Circuit Court of Appeals, which oversees North Carolina cases, “has considered substantially similar First Amendment challenges and arguments,” Boyle added. The appellate court ruled against plaintiffs challenging state restrictions, and “this Court has been presented with no persuasive argument that those cases do not control the outcome here.”

When filing suit in January, IJ noted the plaintiffs’ desire to provide limited legal advice on subjects such as domestic violence, evictions, restraining orders, uncontested divorces, and child custody. The advice would be provided either free or at a substantial discount over what an attorney typically charges. 

Under current state law, nonattorneys are prohibited from such activity, which is called unauthorized practice of law and punishable by up to 120 days in jail.

“Advice, even advice about important subjects like one’s legal rights, is speech protected by the First Amendment,” said IJ attorney Christian Lansinger during a news conference announcing the lawsuit.

He added that North Carolina lacks enough lawyers to meet demand for legal services — there are 2.5 attorneys per 1,000 residents and one legal aid attorney per 7,500 residents. Almost half of those attorneys operate in Wake or Mecklenburg counties, “and most are too expensive for low-income and moderate-income North Carolinians,” Lasinger said.

Legal advice is some of the most “heavily regulated speech in America,” noted IJ senior attorney Paul Sherman during the same press conference. “As our economy has moved to a more information-based economy, more people earn their living through speaking, through the advice or information that they provide. But as occupational licensing has grown, more and more of that speech is being subject to government regulation.”

“Our goal with filing this lawsuit is to make legal services more accessible — and that’s accessible to everyone,” said SM Kernodle-Hodges, co-founder and executive director of the NC Justice for All Project. “Whether you’re homeless or wealthy, legal services should not have barriers … all matters don’t require an attorney. Sometimes they just require the correct resource.”