Many Americans anticipate receiving income tax refunds in the spring so that they can buy a new car, take a vacation or pay down debt. However, others who are less fortunate look forward to being able to do the thing they’ve wanted but been unable to afford to do for months or even years: file for bankruptcy. Each year, the number of bankruptcy filings in the U.S. increases dramatically in March and April, according to one Washington Post report.
Millions of American consumers face the prospect of bankruptcy each year, but for low-income families, being unable to afford a lawyer only adds to their troubles. Although an online search can reap some general information on bankruptcy, the internet won’t give any specific advice for those struggling financially; they must hire a lawyer for that. Without legal representation, debtors are left to navigate the complicated bankruptcy process on their own, which can lead to missed deadlines, inaccurate paperwork and predictably bad outcomes.
Giving free legal advice without a law degree is illegal in most states, as many believe it should be. However, Rohan Pavuluri, CEO and co-founder of Upsolve, a tech nonprofit that helps low-income families file for bankruptcy for free, is challenging the constitutionality of such laws.
In January, Pavuluri and Rev. John Udo-Okon, a minister in the Bronx, N.Y., filed a federal lawsuit charging that the New York state law prohibiting people who are not lawyers from providing legal advice is unconstitutional and violates First Amendment rights. According to the complaint, Upsolve should have the ability to make legal advice more accessible, specifically by empowering people to access advocates in their community who are trained to provide free, safe and accountable legal advice.
“The way that our system is designed today is a civil rights injustice,” Pavuluri recently told Time. “There are so many areas within our civil legal system, including this, where we have modern-day literacy tests and poll taxes in the form of complicated legal forms and legal fees that stop people from accessing their rights.”
The lawsuit focuses on Liz Jurado, Christopher Lepre and Tyler Evertsen, who were all wrongfully sued for a surprise medical bill, a loan for a previously returned inoperative vehicle and debt that did not belong to them, respectively. Each of the three faced bankruptcy and more financial setbacks because they could not afford legal fees to challenge the allegations made against them. Two of the individuals used Upsolve when they filed for bankruptcy.
Inquiring about whether to file bankruptcy is widely considered asking for legal advice. According to the legal website FindLaw, giving legal advice is the same as practicing law. Only a licensed attorney may provide actual legal advice, whereas non-lawyers can only recite legal information. Alternative legal service providers (ALSPs), niche companies that provide routine legal services that law firms traditionally offer, can perform specific tasks, such as legal research and document review, at a lower cost. However, non-lawyers who willingly or unknowingly give individualized legal advice without the authority (and license) are violating the law by participating in the unauthorized practice of law (UPL).
Under the Sixth Amendment, criminal defendants have the right to legal representation, even if they cannot pay for it. However, for the most part, civil litigants are not entitled to free legal representation, and help can be hard to come by. Many legal aid offices help only those with incomes below a certain level, and some consider all assets, no matter what the income is. Federally funded legal services typically will not help anyone who is an undocumented immigrant. Since nonprofit organizations with lawyers or legal assistants on staff often rely primarily on funding from individuals or grants, they are frequently understaffed, and as a result, overworked.
Some say one way to give disadvantaged people greater access to the legal system might be to change the law to allow more flexibility in how they pay their attorneys. According to the Post report, this idea has support among many bankruptcy judges. In addition, Sen. Elizabeth Warren (D-Mass.), recognized as one of the nation’s top experts on bankruptcy, has said reform is needed. However, with Congress unable to agree on much of anything lately, such legislation does not appear likely.
Pavuluri says a ruling in his favor would dramatically expand access to the U.S. legal system and civil rights. “Do we want to live in a country where low-income, working-class families can access the legal rights they’re supposed to be entitled to and can access equal rights under the law?” he asks. “Or don’t we?”