Lawsuit seeks to enable NC paralegals, not just lawyers, to give basic legal advice

People who aren’t lawyers should be able to give out legal advice in North Carolina without running afoul of the law, a new lawsuit says.

The unlicensed practice of law is a crime in North Carolina. With few exceptions, anyone who gives out legal advice, without first being recognized as a practicing attorney by the North Carolina State Bar, can be charged with a misdemeanor and hit with civil lawsuits seeking payment.

Some advocacy groups and paralegals want to change that. A group of them are suing the state, saying its law prevents poor and middle-income people from receiving basic advice that should be allowed under the U.S. Constitution.

North Carolina’s current system has been in place for generations. Supporters say the gatekeeping is necessary to ensure that people get solid legal advice on all kinds of important issues. It also ensures that bad or unethical lawyers can be stripped of their ability to practice law by the Bar.

Supporters of the status quo say allowing anyone to give out legal advice would mean no repercussions for those who don’t know what they’re doing.

But critics of the system say it forces many people who need legal help to go without it, if they can’t afford to hire a lawyer. The lawsuit, filed Thursday in federal court, seeks to strike down the law, at least in part, as an unconstitutional violation of the First Amendment's free speech guarantees.

It also frames the fight as one for equality, taking aim at what’s sometimes referred to as a two-tiered system of justice where rich people get better outcomes than poor people.

“Our goal in this lawsuit is to make legal services more accessible, and accessible to everyone whether you’re homeless or wealthy,” said S.M. Kernodle-Hodges, co-founder and executive director of the North Carolina Justice for All Project, which is a plaintiff in the lawsuit.

Spokespeople for the state Bar — which isn’t part of the lawsuit but is following it — as well as for Attorney General Josh Stein, the named defendant on behalf of the state, said they’re reviewing the complaint. They didn’t immediately provide comments on its claims or goals.

Kernodle-Hodges, who is also a Raleigh paralegal, says she and others like her — who work in the legal profession, just not as lawyers — know how to fill out the forms used in North Carolina courts for relatively straight-foward legal issues, yet are banned from helping others figure it out.

“The state’s prohibition on legal work by us non-lawyers prevents us from helping these vulnerable members of our communities,” said Alicia Mitchell-Mercer, another co-founder of the North Carolina Justice For All Project.

When someone in North Carolina is seeking a domestic violence protective order, or a simple divorce, they’re often given a form to fill out. But unless they can hire a lawyer, they have to navigate the form and everything that happens in court afterward by themselves. They can’t ask a non-lawyer for advice, nor can paralegals charge people to help. And that’s wrong, says Christian Lansinger, an attorney for the Institute For Justice, a nonprofit civil rights group representing the plaintiffs.

“These women have firsthand experience with these forms, and they understand the consequences when someone misunderstands their legal rights or fills out a legal form incorrectly,” Lansinger said. “Why not provide that advice on their own for free, or at a cost significantly less than a traditional attorney?”

The assumption that paralegals would charge less than attorneys is based on a number of factors, including the cost and extent of their training. Lawyers are required to have at least a bachelor’s degree and a law degree. Paralegals in North Carolina need only a high school diploma, although typically they have at least an associate’s degree.

The lawsuit doesn’t request to open the floodgates and let anyone try their hand at more complex legal work like writing contracts, filing lawsuits or making arguments in court. But for simpler legal issues that the courts already have forms set up to handle — dealing with common issues like evictions, foreclosures, domestic violence and child custody disputes — the lawsuit asks that people like Kernodle-Hodges and Mitchell-Mercer be allowed to give guidance on those forms.

The state courts website has 1,987 forms for various legal issues, or for spelling out the so-called local rules that differ from county to county when going to court.

Republican leaders in the General Assembly have passed a number of regulatory reforms in recent years dealing with professional licensure rules, among other topics. But they have not made changes to the rules for licensed attorneys.

Courts have forced other changes. Just a few weeks ago the Institute For Justice won another closely related case, in which it had argued that North Carolina’s licensing board for engineers was violating the First Amendment by enforcing its rules against unlicensed engineers giving out technical engineering advice.

Paul Sherman, an IJ lawyer, said Thursday that the cases are based on similar legal concepts. So that ruling in the engineering case gives him hope as the legal advice case now begins to move forward.

“The timing is certainly fortuitous,” he said.