Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence, and this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Griner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:38] Speaker B: Hi, I'm Ashel javeri and I'm a 2L at Harvard Law School.
On today's episode of the Proof of a Precedent podcast, I'll be talking about a super interesting case in New York called Upsolve v. James that's been percolating through the district and appellate levels over the past couple years.
I want to start off just by setting the scene and giving us some background on the organization and the case that will be helpful to understand what's happening.
Then I'll explore some of the procedural posture and the legal questions that have been raised by this case and explain how the various courts have answered some of them.
Just this past Friday, March 6, 2026, the Southern District of New York ruled on a key part of the case on remand, dismissing Upsolve's motion for a preliminary injunction against the State of New York.
This decision came out after my blog was written. So for those of you who've read the blog, keep listening to this podcast because we're going to be talking about some new material.
What did the court decide? My thoughts on how they might have erred and what they did. Right, and where did the case go from here, including a long shot appeal to the Supreme Court.
With that, let's get into it.
So Upsolve is a Nonprofit founded in 2016, actually a Harvard graduate, and it aims to help low income people file for personal bankruptcy and discharge their debts.
More recently, it tried to help people in New York respond to debt collection actions brought against them.
So a lot of the time if you get into, for example, credit card debt and are unable to pay, the company will file a case against you in state court, which is what I'm referring to when I say a debt collection action.
One major issue in these types of debt collection actions is an extraordinarily high failure to appear rate, which is estimated at 70 to 90%.
And the issue with that is when a defendant fails to appear in court, the court will enter a default judgment against the defendant, even if the claim is meritless.
So even if the credit card company is wrong, for example, if they didn't, if they claim you didn't pay your credit card debt and you actually did, just because you didn't appear in court, you lose.
And that can lead to all sorts of bad outcomes like wage garnishment, eviction, repossessing your auto, and lasting damage to your credit score.
So now you might ask, well, why didn't you just appear in court to begin with? The research shows it's not usually because you had some sort of nefarious objective or anything like that, but usually it's just simply because you didn't know that you had to appear in court.
Oftentimes people have been served incorrectly or not at all, or sometimes they just ignore the order telling them to come to court because they think it's a scam or they can't speak English or they don't have any way of getting to court, or they just think if they ignore it, the case will go away.
And so to help these people, New York actually created a one page check the box form that people in these debt collection actions can fill out in lieu of appearing in court.
So that all sounds great. Where's the problem?
The problem is, despite its conciseness, the form is not easy to answer.
Questions on the form have a surprisingly large number of legal terminology that might make even a law student confused.
So for example, the form has boxes to check if the creditor violated, quote, unquote, the duty of good faith and fair dealing, or if quote unquote latches apply, or if the collateral property was not sold at a commercially reasonable price.
Or my personal favorite, given that I took Civ Pro with the access to Justice Labs director Professor Greiner, if there is quote unquote, lack of personal jurisdiction.
And so these are terms that even a law student might have trouble dealing with, notwithstanding an indigent defendant.
And so Upsell tried to fill this very specific gap by launching a program where they would train volunteers to provide free individualized advice on how to fill out the form.
So for example, the volunteers who upsolve are calling quote unquote justice advocates would have a conversation with the defendant who would maybe tell them the details of the case and their side of the story. And the volunteer could help the defendant fill out the form to answer the claim.
If this sounds like legal advice, that's because it is.
And New York has what's called and unauthorized practice of law statute that prohibits non lawyers from giving legal advice. So that was the problem for upsolve now you might ask, well, why didn't Upsolve just get some lawyers to do this? And Upsolve says, basically that would be too hard to scale to the size that would make a difference.
In New York state alone, there are around 100,000 consumer credit lawsuits filed every year.
There just aren't enough volunteer lawyers or law students even to handle such a big caseload.
And so the people Upsell wanted to train were community members who people facing these debt collection actions would have trusted the most and were the front line.
So, for example, upsoft filed the case that we're about to talk about on behalf of a church leader, a pastor who wanted to get trained on how to help members of his congregation when they were facing a debt collection action, help them fill out the answer form.
And in the past, when people he knew came to him, he had to refer them to an outside legal agency that usually had a long wait list and nothing would ever come of it but bad outcomes.
So upsoft filed a case on his behalf and on behalf of the organization in 2021 to get a preliminary injunction against New York.
Basically, this means they asked the court preemptively to prohibit Newark from enforcing its UPL statute against it so they could operate the program. And by upl, I mean unauthorized practice of law.
And upsolve argued that the UPL statute, as applied to the conversations Upsolve volunteers wanted to have with their clients, was unconstitutional under the First Amendment for violating their freedom of speech.
Upsoft said, hey, what we're having are conversations with our clients. We're not filing briefs. We're not doing legal research. We're not taking discovery or anything. All we're doing is having a conversation orally with our clients. And New York is prohibiting non lawyers from having those conversations. And that's unconstitutional under the First Amendment freedom of speech.
So upsolve filed this case in the Southern District of New York, and in 2023, they actually won.
Judge Paul Crotty, district judge, granted Upsolve the preliminary injunction, saying that New York's UPL statute triggered strict scrutiny because it regulated speech in a content based rather than a content neutral manner.
But that wasn't the end of it because New York appealed. And just a few months ago, In November of 2025, the appellate court, the Second Circuit, agreed with New York and vacated the preliminary injunction.
The judge writing for the majority, Judge Richard Sullivan, said that the district court applied the wrong level of scrutiny to the UPL statute, essentially saying the district court evaluated the law and how it applied to upsolve with a more stringent standard than it would what it should have, saying the court should have applied intermediate scrutiny, not strict scrutiny.
And so just to give you some background on First Amendment law, if you don't know, strict scrutiny applies in First Amendment cases when the law restricts speech in a content based way, and intermediate scrutiny applies when it restricts speech in a content neutral way.
So content based regulation occurs when the law targets specific messages, viewpoints or topics, whereas content neutral regulation occurs when the law is just restricting the time, place or manner of speech.
So for example, if a city bands playing music on sidewalks at night between midnight and 6am that's content neutral because it's not targeting the substance of the music, but rather when and how the message is being conveyed.
But if the city bans only rap music, for instance, and allows classical music during midnight and 6am that might be considered content based since it's intended to control the substance of the message being played. Whether you can play X type of music, but Y type of music is allowed.
So here initially at least, the district court said the law applied to upsolve was content based because the substance of the content of the conversation was being regulated.
Upsol volunteers could talk about certain topics with their clients, as in anything that wasn't legal advice, but couldn't talk about other topics with their clients, specifically legal advice. So the court reasoned the law prohibits upsol from talking about legal advice, but allows non legal advice. So that's a content based restriction on speech. And strict scrutiny should be applied. And strict scrutiny, as you might know, is a super high threshold.
And the New York statute wasn't able to withstand that a couple of years later. So just Last year, the 2nd Circuit disagreed and cited more recent Supreme Court precedent released in 2022 in a state in a case called City of Austin vs Reagan National Advertising in Boston.
So there in that case in 2022, the Supreme Court said some restrictions on speech can still consider their message and remain content neutral if the classification is only considering the function or the purpose of the speech rather than the topic discussed or the idea or message expressed.
And after that case was handed down and after the district court ruled for Upsolve, the 2nd Circuit ruled on another case called Brocamp v. James in 2023 that held that New York's requirement that mental health counselors get a license was not content based because it did not turn on the content of what a person says, but rather applied regardless of what was said, only to speech having a particular purpose, focus and circumstance.
And following the reason of Brocamp in the Upsolve case. Now, the Second Circuit said that New York's UPL statutes apply only to speech having a particular purpose, focus and circumstance, which is specifically the rendering of legal advice and opinions directed to particular clients without regard to the content of a legal advice conveyed.
So the statute wasn't saying you can only give advice to debtors and not creditors, or vice versa, or only consumer protection attorneys can give legal advice on actions.
Rather, the statutes apply equally to any individuals practicing law, regardless of the type of law they are practicing, and they don't license only certain views the state finds acceptable.
The content of the legal advice isn't at issue. The Second Circuit said just who is giving it.
And so that's actually considered as content neutral law, not a content based law, according to the Second Circuit. And so intermediate scrutiny should apply.
And then the Second Circuit remanded the case to district court to determine whether the law could survive intermediate scrutiny.
So if that sounds a little confusing, I mean, just let me assure you right now it is.
First Amendment law is extremely complex and the lines are a little blurry.
So in the rest of the podcast, I want to talk about two things. First, first, the district court, just like I mentioned just last Friday, March 6, released a decision where it said New York's UPL statute does not does survive intermediate scrutiny, so it is not unconstitutional.
And the state's motion to dismiss Absolve's lawsuit was granted.
So I'll walk through the court's reasoning there.
And barring a reversal on appeal, which seems unlikely, upSolve only has one option left. The Supreme Court could reverse the 2nd Circuit's decision to apply intermediate scrutiny.
And so we'll talk a little bit about that at the end.
So first, for the district court decision, a little disclaimer.
My blog post was written before this most recent decision came out, and the blog post talks about how I thought the court could rule that the UPL statute should not survive intermediate scrutiny.
And obviously the court just thought the opposite, so it disagreed with me. So take my words with a grain of salt.
So let's dig into what the court said. And just as an FYI, the district judge that ruled on this question is different than the dis in the original district court judge that first granted Upsolve the preliminary injunction back in 2022. That judge was Paul Crotty, as I mentioned, and this judge is named Lewis Kaplan.
So going through the decision, the court first outlined the test for intermediate scrutiny, which is a two pronged test.
First, the Government must show that the UPL statute, quote, seeks to address government interests that are important and real as opposed to merely conjectural, and that the regulation will address the problem in a direct and material way.
Second, the government must show that the regulation does not burden substantially more speech than is necessary to further the government's interests.
In applying this test, Judge Lewis said that New York was able to satisfy both prongs.
He said that New York had a, quote, well established interest in regulating attorney conduct and in maintaining ethical behavior and independence amongst members of the legal profession.
He said New York's interests are, quote, particularly strong here since the UPL rules are being applied to the giving of, quote, individualized legal advice about how to respond to a pending lawsuit, including what legal defense to raise or not raise.
Many of the risks that the licensure of attorneys guard against are at or near the area pisces. In this context, ensuring that someone providing formal advice on how to complete an answer form is trained, examined and licensed clearly advances the state's interest in avoiding these risks, Lewis said.
And then on the second prong, Judge Lewis said that the UPL statutes are narrowly territored because they restrict only the giving of legal advice to a specific person about that person's individual legal problems.
Upsolve can lobby the government. They can raise hell about the debt collection action crisis and publish training guides and legal help materials. They just can't advise a specific person about his or her individual case. Which are the cases that Judge Lewis says in which incompetent and unscrupulous legal advice is most likely to be relied upon and cause harm?
And Judge Lewis actually said, as a matter of law, New York's UPL statutes do not need to be the least restrictive means of regulating speech, but rather some deference should be afforded to the government in the intermediate scrutiny test. And courts shouldn't, quote, second guess the New York Legislature's reasoned, policy laden decision as to how much training experience is enough training experience.
So that's what the court said in the ruling against upsolve. I think this decision was to be expected to be from the judge. Quite frankly, intermediate scrutiny is a much easier bar to clear than strict scrutiny. And so the government definitely had the advantage in the second round in the district court.
I think the biggest issue I have with Judge Reason's. Well, Judge Lewis's well reasoned decision, excuse me, is that he just kind of assumed the state had an important interest instead of making the government show that unauthorized practice of law is actually a real tangible problem and not just A theoretical one.
When he lays out the test, he says, quote, the government must show that the challenged law seeks to address governmental interests that are, quote, important and real, as opposed to, quote, merely conjectural.
But then he just kind of assumes that the issue of unlicensed lawyers running around taking advantage of indigent defendants in debt collection actions is a big problem.
He says it, quote, cannot reasonably be disputed that this interest qualifies as important.
Indeed, the Supreme Court has described it as compelling and substantial.
And the Supreme Court cases that he actually cites are from 1963, 1975 and 1919.
So from a different era. And I think my response is that today there is very little evidence that a trained pro bono volunteer program that only provides limited legal advice would actually cause consumer harm.
And on the other end of the spectrum, there is such a massive problem in the number of default judgments entered against defendants on meritless claims.
And so I don't actually think that the interest is that high in this instance.
And I think the judge should have demanded that the government actually show empirically or at least anecdotally, that this is a big, a big problem or a valid interest.
And secondly, I would argue that New York's ban on non legal legal, non lawyer legal advice is more extensive than necessary.
The ban treats a trained volunteer helping an indigent person respond to a possibly meritless lawsuit via a form, just filling out a form, the same as an unlicensed individual attempting to try a murder case in a courtroom.
The conduct regulated in Upsolve, I.e. verbal advice on how to fill out a form, is far removed from the core courtroom functions upon which traditional UPL cases have focused, like drafting complex pleadings, representing clients before a judge, or handling client funds.
And so, for these reasons and some others outlined in my blog post, I think Judge Lewis might have erred in this decision.
Finally, I promise, we talk about the Supreme Court case. So after the 2nd Circuit decision late last year, Upsolved filed an appeal at the Supreme Court, asking them to to review the decision to impose intermediate rather than strict scrutiny.
It's very, very unlikely that this petition for certiorari is granted, given that the Supreme Court only hears about 75 cases a year and thousands of cert petitions are filed.
The Supreme Court this term is about to release a decision on the case Chiles Visals are which might have major implications for the upsolve case.
Chile concerns Colorado's law banning conversion talk therapy by licensed therapists.
So their therapist in Colorado sued, arguing the ban violated her First Amendment rights. Under similar reasoning to upsol's volunteers.
And so Chile, which is expected to be released in the next couple weeks, might address whether state occupational licensing powers are subjected to strict First Amendment scrutiny or just intermediate if Chile comes down on the side of strict scrutiny, upsoft might be able to get the Second Circuit's decision overturned.
So this is a fast moving area of law, and I'm excited to see what's waiting for us in the next couple weeks. Regardless, I am sure upsolve is going to continue to do some amazing work expanding access to justice for people who have sometimes crippling consumer debt.
And whether or not their justice advocate program gets off the ground, they have a lot of other lines of effort that have already helped thousands of Americans across the country.
So check them out and stay up to date on this case.
Thanks for listening.
[00:21:48] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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Here's a sneak preview of what we'll bring you next week.
[00:22:16] Speaker C: So if you're in an accident in the 1920s, first of all, you're lucky if you get out of it okay.
Cars were not super safe back then, nor were roads particularly safe.
It was. It was quite a fraught experience driving in the early 20th century.
But say you did get in an accident and you survived and you needed to file some kind of action against the other driver.
If you were a member of an auto club like aaa, and thousands and thousands and thousands of American drivers were members of auto clubs at the time, there were over 1000 automobile clubs, offshoots of AAA around the country at that time, you would have had your own personal car lawyer to call.
