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Tuesday Talk*: Should Paras Be Allowed To Fill Out Forms?

Two North Carolina paralegals, Morag Black Polaski and Shawana Almendarez, have sued to challenge the prohibition against the unauthorized practice of law. It’s not that they want to play lawyer, but to engage in a business helping people fill out legal forms for a lesser expense than a lawyer would charge. They are claiming that the law violates their First Amendment rights.

The plaintiffs filed a complaint in federal court in North Carolina that said the state courts give unrepresented litigants online forms for summary ejectments, absolute divorces, and protective orders — forms that are “not complicated,” but that “can still be confusing.” They said that many residents cannot afford to hire a lawyer to guide them through filling out the forms, and that many who fall into the “missing middle” level of income are too poor to hire a lawyer but not poor enough to qualify for free legal help.

As every lawyer with a cousin knows, people struggle enormously with filling out forms that seem fairly simple to us, and often make what we consider dumb errors that end up causing dumber problems. Relative call us and ask, and we shake our head and walk them through it. But not everyone has a lawyer in the family to guide them through forms.

At the same time, few of these people are willing to dig deep into their pockets to seek legal advice, both as to the few minefields for the unwary buried in forms or as to why checking one box would be more beneficial than another. Much as they call it filling out forms, there is always an element of advice in filling in the right blanks in the right ways.

Since the people to whom these paras seek to serve are not going to a lawyer anyway, and are most likely to risk making mistakes that will come back to bite them in the butt should they choose poorly, why not provide a less expensive source of guidance and, at the least, make it available to people who seek help?

As paralegals, Polaski and Almendarez said, they would like to provide just the advice these would-be clients might need at a lower price than licensed attorneys. The case has been assigned to U.S. District Judge Judge Terrence W. Boyle, a Ronald Reagan appointee, and names North Carolina Attorney General Josh Stein as the defendant.

The plaintiffs argued in their complaint that advice, regardless of the topic or the price, is protected speech under the First Amendment and that as such, the state may not prohibit it unless the restriction meets the highest level of constitutional scrutiny — that it is narrowly tailored to serve a compelling government interest. Plaintiffs contend that North Carolina’s restriction cannot meet this burden.

The problem with this argument, of course, is that by providing advice for a fee, this morphs into commercial speech, and in this instance the subset of professional speech subject to regulation for its competency before allowing it to be “sold” to the public. If the paras were doing this for free, they would be no different than the neighbor giving legal advice over the fence. But they want to turn this into a business, which makes this a different free speech problem.

Some new kid at Above the Law sees this as a no brainer, without regard to the First Amendment issue.

Now, before you get on your soapbox about how paralegals and AI will make it so proper lawyers will be out of a job, you should know that these paralegals aren’t fighting for the right to hang a shingle or anything:

The plaintiffs filed a complaint in federal court in North Carolina that said the state courts give unrepresented litigants online forms for summary ejectments, absolute divorces, and protective orders — forms that are “not complicated,” but that “can still be confusing.”

I was on board with this before we even got to the free speech component of the suit. It isn’t like this is dangerous — you can give a guy a gun and qualified immunity after a few months of training but paralegals helping someone with a restraining order is where we draw the line? Come on, now.

Assuming this isn’t an ironic example of why some people are incompetent to make coherent legal arguments, it can very well be dangerous. Even assuming, arguendo, that these two paras with 20 years experience know what they’re doing, there will be others who may not. And yet they will have the imprimatur to sell their “advice,” and should they guide their “clients” poorly, whether out of neglect or ignorance, they can wreak havoc with people’s lives. True, the people involved may wreak just as much havoc on their own, but that’s their choice and they have a right to be wrong. Paras selling limited legal services do not.

There have been many efforts over the years to find less expensive alternatives for routine legal matters that really don’t require a lawyer, at least most of the time, almost all of which have either been rejected or failed. Is this an idea whose time has come? Is there a way to limit the purview of trained paralegals so they don’t overstep their bounds? Is there a way to hold them accountable, such as malpractice insurance, so their advice comes with sufficient risk for them to be diligent? Or does this open the public to bad legal advice, albeit at a lower price?

*Tuesday Talk rules apply.

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