5.08. Reading: Darby v. MS State Bd. of Bar Admissions, 185 So. 2d 684 (Miss. 1966)

Reading Guide
The Strange World of UPL: Everyone is subject to UPL regulations – lawyers and non-lawyers. Think about how the rules are enforced against these different categories. What consequences can a lawyer suffer? What about a non-lawyer?

Issues:
– How is the practice of law defined?
– Where does the definition of the practice of law come from?
– What is the purpose of the prohibition on unauthorized practice?
– Who brought this claim against Darby for the unauthorized practice of law?

Darby v. Mississippi State Bd. Of Bar Admissions

185 So. 2d 684 (Miss. 1966)

ETHRIDGE, Chief Justice.

[Elizabeth Darby, the Chancery Clerk for Neshoba County, Mississippi is not licensed to practice law.  She would assist those coming to the Chancery Court draft legal documents such as deeds, deeds of trust, notes, bills of sale, and title certificates. She must have been pretty competent at what she was doing – because the court notes that even local banks would accept title certificates that she prepared to make loans on property in Neshoba County. The Mississippi Bar Association as well as the local Neshoba County Bar Association sought to enjoin Darby, arguing that her actions constituted the unauthorized practice of law.]

What is the Practice of Law?

The practice of law includes the drafting or selection of documents, the giving of advice in regard to them, and the using of an informed or trained discretion in the drafting of documents to meet the needs of the person being served. So any exercise of intelligent choice in advising another of his legal rights and duties brings the activity within the practice of the legal profession. … The preparation of deeds and other legal papers in defendant’s office was a daily affair, not limited to unusual situations. She made a campaign promise to prepare land deeds, deeds of trust, and notes for the local populace. Apparently this practice had been going on for several decades, including her father’s preceding administration as chancery clerk.

The chancery court found on ample evidence that defendant received compensation, directly and indirectly, for many of the legal services performed by her. However, the practice of law does not necessarily involve charging or receiving a fee for services performed. The element of compensation for such services may be a factor in determining whether specified conduct constitutes the practice of law, but it is not controlling. The character of the service and its relation to the public interest determines its classification, not whether compensation is charged for it.

The objective of both the legislature and the courts in supervising admissions to the bar is the protection of the public against injuries from acts or services, professional in nature, constituting the practice of law, and done or performed by those not deemed to be qualified to perform them. A gratuitous service by a licensed doctor or lawyer is none the less professional. The welfare of the public is the principal consideration. … In short, the prohibition against others than members of the bar of the State of Mississippi from engaging in the practice of law is not for the protection of the lawyer against lay competition, but is for the protection of the public.  ….

A statute makes it a crime for an unlicensed person to practice as an attorney and counsellor at law. Miss. Code Ann. s 2332 (1956). Section 8669 makes it unlawful for a clerk of any court ‘to exercise the profession or employment of an attorney or counsellor at law,’ or to engage in the practice of law or to receive any fee for any such service, and designates this a misdemeanor. Miss. Code Ann. s 8669 (1956). Another statute makes it unlawful for any person to engage in the practice of law without a license, stating that any person ‘who shall for a fee or reward or promise, directly or indirectly, ‘write any paper to be filed in a proceeding or dictate a bill of sale, deed, deed of trust, mortgage, contract, or will, or make or certify to any abstract of title, ‘shall be held to be engaged in the practice of law.’ Miss. Code Ann. s 8682 (1956).

The acts designated in Section 8682 as constituting the practice of law are not all-exclusive nor all-inclusive. Manifestly there are many others which might be performed by an unlicensed person which may also constitute the practice of law. Section 8682 simply provides that the designated acts under the defined circumstances constitute the unlawful practice of law, but it does not encroach on the constitutional power of the judiciary to determine that other acts may also do so…. Such statutes are not a complete enumeration. The courts have inherent authority, independent of statute, to decide what acts constitute the practice of law. …

Affirmed.

BRADY, PATTERSON, SMITH and ROBERTSON, JJ., concur.