MONTANA COURT RULES THAT COURTS DO NOT HAVE JURISDICTION TO REGULATE UNAUTHORIZED PRACTICE OF LAW – Does this reasoning apply in Kentucky?

Recently the Montana Supreme court dissolved the Montana Supreme Court Commission on the Unauthorized Practice of Law. In the opinion the court reasoned that under the Montana Constitution the court never had any authority to regulate the unauthorized practice of law. The Ruling said that regulation of non-lawyers is an Executive Branch function.

KY. CONST SECTION 116 STATES:

Rules governing jurisdiction, personnel, procedure, bar membership.

The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice. The Supreme Court shall, by rule, govern admission to the bar and the discipline of MEMBERS OF THE BAR.

Text as Ratified on: November 4, 1975, effective January 1, 1976.

History: Repeal and reenactment proposed by 1974 Ky. Acts ch. 84, sec. 1; original version ratified August 3, 1891, and revised September 28, 1891.

This language in the Kentucky constitution suggests that the Kentucky Supreme Court cannot regulate non-members of the bar association. Therefore the authority of the Ky. Supreme Court to regulate the conduct of non-lawyers is a relevant question yet undecided in Kentucky.

THE MONTANA CONSTITUTION STATES:

Section 2. Supreme court jurisdiction. (1) The supreme court has appellate jurisdiction and may issue, hear, and determine writs appropriate thereto. It has original jurisdiction to issue, hear, and determine writs of habeas corpus and such other writs as may be provided by law.

(2) It has general supervisory control over all other courts.

(3) It may make rules governing appellate procedure, practice and procedure for all other courts, admission to the bar and the conduct of its members. Rules of procedure shall be subject to disapproval by the legislature in either of the two sessions following promulgation.

(4) Supreme court process shall extend to all parts of the state.

The Kentucky Judicial Article appears to be limited to the conduct of “Members of the Bar” and does not apply to non-lawyers who sell legal forms etc. The reasoning of the Montana Supreme Court seems to provide a strong basis for non-members of the KBA to challenge regulation of their activities by the Supreme Court.

Two Kentucky Supreme Court Rules discuss the unauthorized practice of law grants to itself the right to regulate the unauthorized practice of law. That self-created right appears to conflict with Section 116 of the Kentucky Constitution. Other states such as Montana now take the position that regulation of non-lawyers is an Executive Branch function under laws passed by the Legislature. The Kentucky Constitution does not state that the Courts may amend the Ky. Constitution.

KY SCR 3.020 Practice of law defined

The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor. An appearance in the small claims division of the district court by a person who is an officer of or who is regularly employed in a managerial capacity by a corporation or partnership which is a party to the litigation in which the appearance is made shall not be considered as unauthorized practice of law.

HISTORY: Amended eff. 11-1-78; prior amendment eff. 7-2-71

 

Also see:

KY SCR 3.460 Unauthorized practices proceeding

(1) When it comes to the attention of the Director that any person or entity not having the right to practice law is directly or indirectly practicing law, the Director shall have the authority to cause such investigation to be made concerning the matter as he deems appropriate. Bar Counsel may participate in such investigation. The Director shall have the authority to subpoena any person or entity to produce any evidence relevant to the investigation including testimony by deposition pursuant to the Rules of Civil Procedure. Any motion to quash a subpoena shall be filed in and ruled on by the Supreme Court. If the Director determines that any person or entity has been engaged in the unauthorized practice of law, the Director shall send a letter or warning by certified mail, return receipt requested, to the person’s or entity’s last known address, requesting that the unauthorized practice of law be discontinued. If future violations occur and in the opinion of the Board action should be taken, it shall direct that a motion in the name of the Association for a show cause rule be filed with the Clerk. The Clerk shall docket the motion and issue a rule against the alleged offender to show cause why he/she should not be held in contempt for unauthorized practice of law. The rule shall be returnable on the 15th day following service. When procedure is by warning order, service shall be deemed to have been made thirty (30) days after the date of making the warning order.

(2) If the Respondent fails to file due response on the rule’s return day or files a response admitting the offense, the rule shall forthwith be made absolute, and the Court shall enter such orders as it deems appropriate to deter and punish, which may include injunctive relief.

(3) If the Respondent timely files response denying the offense, the Court shall within twenty (20) days refer the case to a Trial Commissioner appointed under Rule 3.230 sitting as a Special Commissioner, who shall thereupon hold a hearing within sixty (60) days at such time and place as he/she may fix, at which hearing the Association shall be represented by counsel designated by the Board for that purpose. The parties may obtain compulsory attendance of witnesses and the production of documents as provided in the Civil Rules. The Special Commissioner, at the conclusion of the hearing, may permit the filing of briefs by the parties, with each brief being filed within thirty (30) days, and shall make and submit to the Court written findings of fact and recommendations within thirty (30) days thereafter.

(4) Upon filing of the Special Commissioner’s report, the Court may permit the filing of briefs by the parties or may summarily dispose of the matter and shall enter such order as may be appropriate. The Clerk shall furnish counsel and the Director copies of every order entered under this rule and every such order shall be reported and published as are other opinions of the Court.

(5) If the Respondent is adjudged guilty, he/she shall be liable for all Court costs, and the provisions of Civil Rule 73.07 shall apply.

HISTORY: Amended by Order 98-1, eff. 10-1-98; prior amendments eff. 1-1-86 (Order 85-2), 1-1-78, 10-14-74, 7-2-71

 

The only Kentucky Statute which may be applicable to this discussion is:

KRS 447.154 Laws not to limit right of Court of Justice to promulgate rules.

No act creating, repealing, or modifying any statute shall be construed directly, or by implication, to limit the right of the Court of Justice to promulgate rules from time to time or to supersede, modify, or amend any rule so promulgated. Nor shall any statute be construed to limit in any manner the power of the Court of Justice to make rules governing practice and procedure in the courts.

Effective: June 19, 1976

KRS 447.154 forbids the legislature to limit the Court of Justice from making rules governing practice and procedure IN THE COURTS.”

We would observe that the legislature by adoption cannot repeal Section 116 of the Kentucky constitution limiting the powers of the Supreme Court to only regulate “MEMBERS OF THE BAR”.

 

The Montana Court citing constitutional provisions similar to the Kentucky Judicial Article stated:

Ҧ5 First, we conclude that this Court is not authorized either directly or through a

Commission to regulate the “unauthorized practice of law.” Article VII, Section 2(3) of

Montana’s Constitution empowers this Court to “make rules governing appellate

procedure, practice and procedure for all other courts, admission to the bar and the

conduct of its members [subject to the legislature’s power to disprove rules which we

adopt]” (italics added). Pursuant to this Constitutional scheme, the legislature has

historically defined what constitutes the practice of law (§ 37-61-201, MCA)1 and has

charged the executive branch with the duties of investigating and prosecuting the

“unauthorized” practice of law (§ 37-61-214, MCA).”

 

Ҧ6 Second, we conclude that the array of persons and institutions that provide legal or

legally-related services to members of the public are, literally, too numerous to list. To

name but a very few, by way of example, these include bankers, realtors, vehicle sales

and finance persons, mortgage companies, stock brokers, financial planners, insurance

agents, health care providers, and accountants. Within the broad definition of § 37-61-

201, MCA, it may be that some of these professions and businesses “practice law” in one

fashion or another in, for example, filling out legal forms, giving advice …”

 

The Kentucky Court to our knowledge tolerates banks and insurance companies to prepare legal forms (deeds, mortgages etc.) to fill them out, and to charge for them. But private persons are limited by the Supreme Court Rules from doing the same thing. Critics of the regulation of non-lawyers suggest that the current structure hurts consumers by keeping legal costs high, and creating a monopoly in favor of the legal profession. We have found no good answer why the Courts have in fact exempted banks and insurance companies from sanctions for the unauthorized practice of law and allows them to draft legal documents. The same court prohibits private individuals from doing the same thing.

There is an interesting book on this subject which asks FIRST THING WE DO, LET’S DERUGLATE ALL THE LAWYERS. www.amazon.com/First-Thing-Lets-Deregulate-Lawyers/dp/..

 

This issue is seen by some as a consumer protection and anti-trust issue. The Justice Department is currently pursuing an anti-trust suit against the ABA for their conduct in accrediting law schools.

 

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