In NC, only lawyers can give legal advice. A new lawsuit aims to change that
A new lawsuit filed in federal court argues that prohibiting nonlawyers from providing some legal advice violates the First Amendment.
In North Carolina, as in most states, even advising someone on how to fill out a basic legal form can sometimes be considered the unauthorized practice of law — a Class 1 misdemeanor.
This suit, brought by the North Carolina Justice for All Project and the national Institute for Justice, argues that UPL laws unfairly restrict speech and deprive residents of opportunities for less expensive legal advice.
“Fundamentally, advice, no matter what subject it’s about, is speech, and it’s protected by the First Amendment,” Paul Sherman, JFAP’s lawyer, told The News & Observer.
Attorney General Josh Stein is named as the defendant in the lawsuit, with plaintiffs asking the court to block him from enforcing parts of the state’s UPL prohibition.
Trouble affording legal help
For several years now, JFAP has pushed the State Bar and the legislature to relax UPL laws, potentially creating a limited licensing system that would allow paralegals and other legal experts to assist with eviction, restraining orders, divorce and other common legal issues.
Instead of paying exorbitant retainers for bar-certified lawyers, the advocates say, people seeking advice could potentially pay smaller fees for help from people with limited licenses.
JFAP’s founders, Alicia Mitchell-Mercer and S.M. Kernodle-Hodges, are both Bar-certified paralegals who say they spent years seeing clients who were unable to afford the legal help they needed.
“I would constantly witness people calling in to schedule an appointment and hear their dismay at hearing that it’s going to cost $300 an hour to speak with a lawyer,” Mitchell-Mercer, who currently serves as a project manager for a law firm in Charlotte, said.
Kernodle-Hodges, who is a program coordinator for the Wake County Legal Support Center, said she is limited in how much help she can give clients for fear of breaking the state’s UPL laws.
“I’m restricted in the legal support center for what I can share, what I can say,” she said. “... I can’t discuss statute. I have to be really specific, but not too specific as to appear that I am giving legal advice.”
What other states have done
Since 2021, Kernodle-Hodges and Mitchell-Mercer have worked together to push for changes to UPL laws, noting that other states have had some success with expanding the legal industry.
Some states, such as Arizona, have the position of legal document preparer, which allows nonlawyers to assist with basic legal forms, but still prevents them from giving legal advice.
Washington State has limited license legal technicians, who are allowed to assist with family law matters without being Bar-certified lawyers.
JFAP met resistance when trying to push these changes within the State Bar and the legislature, though.
Mitchell-Mercer and Kernodle-Hodges served on a Bar committee that studied regulatory reform, including UPL changes, but it never led to substantive action. They later submitted a proposal to legislators, but were unable to find a lawmaker willing to sponsor a bill.
Now, with the matter headed to court, JFAP aims to get a judge to rule that the state’s current UPL prohibition is unconstitutional, potentially creating a new limited licensing system in North Carolina.
“You wouldn’t want to pay a surgeon to take your blood — they have phlebotomists for that,” Mitchell-Mercer said. “So we’re just looking to be able to help people in those limited capacities where you don’t need someone who is at the very top of the legal profession handing out full-service advice.”
