NC paralegals explain free-speech lawsuit in 4th Circuit brief

Paralegals challenging North Carolina’s law against providing legal advice without a license explained their case Wednesday in a federal Appeals Court filing.

A federal judge dismissed the case in 2024. Paralegals Morag Black Polaski and Shawana Almendarez, the North Carolina Justice for All Project, and the Institute for Justice are asking the 4th US Circuit Court of Appeals to reverse that decision.

“North Carolina has created court forms for ordinary people to use without lawyers,” according to the new brief. “The North Carolina Administrative Office of the Courts (NCAOC) makes more than a thousand statewide judicial forms and more than a thousand local forms available online for attorneys and pro se litigants to complete themselves.”

“Those resources cover the very areas where ordinary people most often need help: summary ejectment, divorce, domestic violence protective orders, custody, estates, probate, and related matters,” the court filing added. “The State thus recognizes that many North Carolinians will navigate these legal processes without lawyers. But the forms are not self-executing.”

“Many North Carolinians have legitimate civil legal needs but, because they are unfamiliar with legal procedures or are experiencing the turmoil of eviction, divorce, domestic violence, debt, or probate, they cannot complete the forms timely or correctly without help,” the brief argued.

“Plaintiffs want to answer those questions,” the court filing explained. “They seek to speak with people about their factual circumstances and legal goals and advise them what a court-created form does, how forms interact, what terms mean, what local rules to know, what forms to file, and what information belongs on those forms. That advice would be individualized, but limited.”

“Plaintiffs do not seek to represent clients in court, act as counsel of record, hold client funds, create binding legal obligations, sign or file papers for anyone, or take over litigation,” the brief added. “Their clients would remain pro se. The relief Plaintiffs seek is limited to advice about court-created forms.”

North Carolina’s Unauthorized Practice of Law statutes block the plaintiffs from providing the service, the brief argued.

“There is no North Carolina license authorizing certified paralegals to give unsupervised legal advice, and no statutory exception permits them to do so,” according to the court filing. “The UPL statutes draw no distinction based on whether the advice is simple, limited, free, paid, or related to court-created forms designed for pro se use. Advising a person which box applies on an eviction answer form triggers the same prohibition as entering a guilty plea on behalf of a criminal defendant.”

North Carolina faces a “documented access-to-justice crisis,” the brief argued. “The unmet need is severe.”

“In a given year, 71 percent of North Carolina’s low-income families experience at least one civil legal problem, but 86 percent of those legal needs go unmet,” according to the court filing. “The areas of greatest need include summary ejectment, divorce, debt collection, domestic violence, foreclosure, custody, and civil no-contact orders — the same areas in which court-created forms are often available and in which Plaintiffs seek to provide limited help. Unmet civil legal needs can lead to loss of housing, safety concerns, future criminal problems, loss of property, family instability, and forfeiture of legal rights.”

“This appeal raises a narrow legal issue: whether individualized advice about how to complete court-created legal forms is ‘speech’ protected by the First Amendment,” the brief explained.

US District Judge Terrence Boyle ruled against the plaintiffs in December 2024.

“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, 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 2024, 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 news 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.”

“NC paralegals explain free-speech lawsuit in 4th Circuit brief” was originally published on www.carolinajournal.com.