State laws often make it a crime for a nonlawyer to give a person “legal advice,” even though it is speech of a sort that is usually protected by the First Amendment. As this article demonstrates, appellate courts have been unanimous in their conclusion that such speech is not protected, seemingly settling the issue. However, this article shows that these decisions are scattershot in their approaches, unconvincing in their reasoning, and inept at applying existing First Amendment precedents. In fact, Supreme Court jurisprudence indicates that unauthorized practice of law restrictions against nonlawyers giving legal advice violate the Free Speech Clause. The appellate decisions finding otherwise represent not only a judicial failure to police an important constitutional right, but also impede access to justice. They mean that even trained nonlawyers cannot provide legal advice to the many persons who cannot afford or otherwise obtain a lawyer. Enforcing the Free Speech Clause would empower nonlawyers to provide the unrepresented with legal advice, but it does present real risks to consumers. However, as this article demonstrates, it is possible to address such risks while obtaining the benefits provided by the increase in access to legal advice and assistance that such enforcement of the First Amendment would afford.
Improving Access to Justice by Enforcing the Free Speech Clause,
83 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol83/iss1/14