‘Our speech is chilled’: North Carolina paralegals sue to provide legal advice

RALEIGH, N.C. (CN) — Two paralegals sued North Carolina Attorney General Josh Stein Thursday over unauthorized practice of law restrictions that prevent non-lawyers from giving legal advice. 

Morag Black Polaski, Shawana Almendarez and the North Carolina Justice For All Project challenged the prohibition in a lawsuit filed in the Eastern District of North Carolina Thursday, saying that the restrictions violate their First Amendment rights. 

“What we’re dealing with is just giving people advice. And when the only thing you’re doing is talking to people about your legal rights, that is fully protected by the First Amendment,” said Paul Sherman, one of the attorneys for the plaintiffs.

Black Polaski and Almendarez each have more than 20 years of experience as certified paralegals. In the suit, they say they feel as though they have had their speech limited as they have only been able to provide legal information and have been barred from providing even very basic legal advice.  

“There is no occupational licensing exception to the First Amendment. Nor is there any exception for speech that is paid. The Supreme Court has repeatedly held that the fact that someone gets paid for their speech has no bearing on whether it's protected,” Sherman said. “The alternative for the kinds of people who the North Carolina Justice for All Project and our clients Morag and Shawana … want to help isn't hiring a lawyer. It's doing it themselves with no legal help, or trying to figure out the answers on Google. That doesn't serve anybody's interests.”

North Carolina has broad prohibitions on the unauthorized practice of law which prevent anyone except licensed attorneys from providing legal advice. This includes simple legal matters, such as replying to a civil summons or filing a protective order.

“When you go to file a complaint, you have to file a civil summons. And a summons very clearly says you have 30 days to answer. But a lot of times people don't understand or don't know how they need to respond, what the format is, where they even need to go to respond. What constitutes good service, for example?” Said Black Polaski, who has been in the legal field for nearly 30 years. “This is all stuff that if you’re in the field, you know it, but the average layperson who isn’t experienced in the legal field, who is watching Law and Order, doesn’t necessarily understand what the North Carolina rules are.”

The plaintiffs say most residents don’t understand these forms or fill them out incorrectly, and struggle to defend their legal rights. But according to them, it only takes a matter of hours for paralegals to become comfortable with them. 

The North Carolina Justice For All Project — a nonprofit group that champions legal reform and a plaintiff in the suit — say they are advocating to help a population they call the “missing middle” who earn too much to qualify for legal aid, but don’t earn enough to pay for a lawyer. Polaski and Almendarez want to be able to provide legal services to this population, at a cost less than an attorney.

“We are trying to be a bridge in that area so that we can help with those issues,” said Alicia Mitchell-Mercer, one of the co-founders of the project. It hasn’t been able to provide free legal services thus far because of North Carolina’s unauthorized practice of law regulations.

The project aims to provide a video library explaining how to fill out legal forms available on NCcourts.org, and to help  answer questions, Mitchell-Mercer said. People who didn’t have a lawyer would have to fill out these forms by themselves, without any help or assistance. They also want to provide free legal clinics to help people with simple legal forms. 

“And right now, all of that is potentially unauthorized practice of law. And so our speech is chilled, our hands are tied, because there are people that we see everyday that need the help but we are not permitted to help them because we don't have a law license and we haven't passed the bar,” she said. 

The plaintiffs argue that there need to be less regulation concerning advice and that North Carolina needs to consider allowing non-lawyers to give legal advice, a practice which has already been implemented in other states, such as Arizona and Utah.

“The government certainly has an interest in protecting the public from incompetent legal advice but the means that it chooses to address that problem have to be appropriately tailored to that problem,” said Sherman. “And they have to burden no more speech than is necessary to address that problem.”

In the suit, the plaintiffs argue that the “access to justice gap” harms lower-income residents and can lead to the loss of housing and safety concerns, saying that 86% of low-income families’ legal needs go unmet. 

For a little over a decade, Black Polaski volunteered as a guardian ad litem and served as a court appointed advocate for children in the care of the Department of Social Services. 

“I would be working with the kids, with the foster families, and then with the families themselves, who may not have been represented, who had questions about things that were going on and just needed an explanation,” she said. “But I couldn’t give it to them.”

Mitchell-Mercer says that they anticipate some resistance from North Carolina lawyers as they continue their push for non-lawyers to be able to provide legal advice, but that states practicing limited licensing have not reported higher levels of harm, and other countries who have similar practices cite the effectiveness of paralegals. 

She also pointed out certain areas of the law also allow non-attorneys to interact and advise people on the law.  

“When you think about insurance agents, or real estate agents or tax preparers, they are interacting or engaging with legal documents in a limited capacity and there are laws that carve out areas for them to do that work,” she said. “So that if you want to go buy a house, your real estate agent can sit down with you and go over the contract with you and explain the contract to you. And the law says that that's okay. That's not the unauthorized practice of law. And that's not much different than what we're asking to do.” 

Mitchell-Mercer and Black Polaski both say that the people that they want to help are not the people who can afford legal services, but the people who would have been turned away. 

“The legal system exists to serve the public, not itself,” said Mitchell-Mercer. “We have to put the needs of the public first. We have too many people in the access to justice gap who are suffering in very sensitive cases, we're talking about loss of children, evictions, things like that that are just life altering for the people that are going through it. And I think we need to be sensitive as a profession to find solutions to people in those situations.”

“It’s putting the people first,” said Black Polaski.

The attorney general did not immediately respond to a request for comment.

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