They Need Legal Advice on Debts. Should It Have to Come From Lawyers? - The New York Times

“What we have isn’t legal rights under the law,” he said. “What we have is legal rights if you can afford a lawyer.”

The office of New York’s attorney general, Letitia James, did not immediately respond Tuesday morning to a request for comment on the suit and to a question about whether the help Upsolve wants to offer would violate rules on the unlicensed practice of law. The New York State Bar Association, which represents lawyers, said it would not comment on pending litigation.

In America, consumers are served with suits alleging failure to make payments of all kinds, whether for phone bills or fish tanks. The most common subjects of debt collection suits include medical bills, credit card balances and auto loans.

Americans do not legitimately owe most of the debt they are sued for, according to consumer advocates. A 2010 report by the Legal Aid Society found that in more than one-third of debt-collection cases reviewed, the debt had already been paid or had resulted from mistaken identity or identity theft; the statute of limitations on collecting the debt had expired; or the debt had been shed in bankruptcy. ACA International, a trade group for debt collectors, did not immediately respond on Tuesday to a request for comment on the Legal Aid Society’s report.

Marshal Coleman, a veteran consumer lawyer in Manhattan, said that most consumer debt suits were over matters of a few thousand dollars. “Typically, if a client like that comes to a lawyer,” he said, “a lawyer’s not going to be able to help them because the fees will exceed the value of the debt.”

There are legal aid organizations that offer free representation to low-income people, but they tend to focus their very limited resources on other matters, like domestic-violence protection orders, evictions and foreclosures. Legal Services NYC, the city’s biggest provider of free civil legal services, has 450 lawyers on staff. Only one concentrates on consumer debt suits.

A New York State law requires a summons announcing a lawsuit to include a statement containing no fewer than 14 exclamation points: “THIS IS A COURT PAPER — A SUMMONS! DON’T THROW IT AWAY!!” it shouts. It later continues, “IF YOU CAN’T PAY FOR YOUR OWN LAWYER, BRING THESE PAPERS TO THIS COURT RIGHT AWAY. THE CLERK (PERSONAL APPEARANCE) WILL HELP YOU!!”

The summons does not include information about a multiple-choice form that you can fill out with 24 possible defenses. Some, like “I dispute the amount of the debt,” are simple. Others are more lawyerly and contain terms like “unconscionability” and “laches.” The form is available only in English.

This is where Upsolve hopes to come in. The nonprofit has produced an 18-page “justice advocate training guide” for volunteer counselors. The guide includes a script that explains each of the boxes on the state form in plain language and instructions for helping the defendant fill it out.

New York’s judiciary rules make it a criminal misdemeanor for someone who is not a registered and licensed attorney to practice law. Upsolve’s suit argues that coming together to provide and receive free legal advice is a form of speech and association covered by the First Amendment.

The suit does not seek to overturn the rules. Rather, it asks the court to evaluate Upsolve’s volunteer-counselor program and carve out protection for it. The suit notes that New York lets nonlawyers who pass an exam represent workers’ compensation claimants.

Upsolve also argues that applying the unauthorized-practice-of-law rules to its volunteer counselors would “impede the very interests” the rules are meant to advance: protecting consumers from being fleeced and safeguarding the integrity of the justice system.

This content was originally published here.

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