Fifth Judicial Bar v. Glasgow

• Decision Date: 10 December 1999
• Docket Number: 96-00020
• Parties: FIFTEENTH JUDICIAL DISTRICT UNIFIED BAR ASSOCIATION, Plaintiff/Appellee, VS. ANGIE GLASGOW, Defendant/Appellant. AppealIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Filed
• Court: Tennessee Court of Appeals

FIFTEENTH JUDICIAL DISTRICT UNIFIED BAR ASSOCIATION, Plaintiff/Appellee VS ANGIE GLASGOW, Defendant/Appellant

Appeal No. M1996-00020-COA-R3-CV

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Filed December 10, 1999

APPEAL FROM THE CHANCERY COURT FOR WILSON COUNTY AT LEBANON, TENNESSEE

Wilson Chancery No. 96302

THE HONORABLE C.K. SMITH, CHANCELLOR

This appeal involves a local bar association's efforts to prevent the owner of a typing service from practicing law without a license. The bar association filed suit in the Chancery Court for Wilson County seeking to enjoin the owner from preparing divorce papers and related documents for her clients. The trial court, sitting without a jury, permanently enjoined the owner from engaging in the unauthorized practice of law. The owner asserts on this appeal that the bar association lacked standing to seek an injunction against her and that the statutory prohibition against the unauthorized practice of law is unconstitutional. We have determined (1) that the bar association has standing to seek injunctive relief, (2) that the trial court correctly determined that the owner was engaging in the unauthorized practice of law, and (3) that the owner has not carried her burden with regard to her constitutional challenges to the statute of outlawing the unauthorized practice of law. Accordingly, we affirm the trial court.

For the Plaintiff/Appellee:

Robert Evans, Lee Lee & Lee, Lebanon, Tennessee

Ruston L. Hill, Nashville, Tennessee

For the Defendant/Appellant:

Henry Clay Barry, Lebanon, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

I.

Angie Glasgow operates a business in Wilson County called Divorce Typing Service. Her clientele consists mostly of low-income persons who seek an uncontested¹irreconcilable differences divorce and who have decided to represent themselves. The services she provides, for a fee ranging from $99 to $148,² consist of (1) preparing the complaint, the marital dissolution agreement, the final divorce decree, and other related documents, (2) suggesting where the papers should be filed, and (3) suggesting "approximately" when the papers should be filed. As a general matter, Ms. Glasgow leaves it up to her clients to file the papers she prepares. However, she concedes that she has, on occasion, filed divorce complaints for her clients.

Ms. Glasgow obtains the information needed to prepare the divorce papers by requiring her clients to complete a questionnaire. This questionnaire elicits personal information about the parties, information about their agreements concerning the custody and support of the children, and information concerning the division of the parties' real and personal property. If the divorce will affect the title to jointly held real property, the questionnaire permits the parties to request Ms. Glasgow to prepare the necessary quitclaim deeds. The questionnaire also contains space for her clients to list "special clauses" they desire to be included in the "divorce agreement." In addition to requiring her clients to sign the questionnaire, Ms. Glasgow requires them to attest that they have received "no legal advice" from her and that they understand that "there will be no refunds."

In addition to drafting the documents, Ms. Glasgow contacts various judicial officers in connection with her business. She testified that she discusses with the clerk and master's office in which court the divorce should be filed when one or both parties do not live in Wilson County. She also testified that she has discussed with the clerk and master's office when her clients should file the proposed final decree. Based on these conversations, she suggests to her clients where the divorce complaint should be filed and when the final decree should be filed.³

The Fifteenth Judicial District Unified Bar Association filed suit in the Chancery Court for Wilson County seeking to enjoin Ms. Glasgow from engaging in the unauthorized practice of law in violation of Tenn. Code Ann. 23-3-103 (Supp. 1999). Ms. Glasgow moved to dismiss the complaint because the unincorporated bar association lacked standing to sue. The trial court overruled Ms. Glasgow's motion and, following a bench trial, determined that she was practicing law without a license. Accordingly, the trial court enjoined Ms. Glasgow from engaging in the unauthorized practice of law.

II. THE BAR ASSOCIATION'S STANDING

Ms. Glasgow asserts that the bar association does not have standing to seek to enjoin her from the unauthorized practice of law because it is unincorporated. Without citation to Tennessee authority, she claims that the bar association cannot bring suit in its own name because there is no statutory authority permitting it to do so. This argument overlooks the decisions recognizing that unincorporated associations may have standing to sue on behalf of their members.

The standing doctrine provides courts with a vehicle for determining whether a particular party is entitled to judicial relief. See Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976). A standing inquiry requires the court to determine whether the party seeking relief has a sufficient stake in the outcome of the controversy to warrant the exercise of the court's authority on its behalf. See Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov't, 842 S.W.2d 611, 615 (Tenn. Ct. App. 1992); Browning-Ferris Indus., Inc. v. City of Oak Ridge, 644 S.W.2d 400, 402 (Tenn. Ct. App. 1982).

The primary focus of a standing inquiry is on the party seeking relief, not the merits of the party's claim. Accordingly, a party's standing does not hinge on the likelihood that it will succeed on the merits of its claim. See Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov't, 842 S.W.2d at 615. However, a party's standing may stand or fall on the nature of its claims. See Allen v. Wright, 468 U.S. 737, 752, 104 S. Ct. 3315, 3325 (1984). Thus, when the claimed injury involves a statutory violation, the court must determine whether the entity seeking judicial relief fits within the classification of persons the statute was intended to protect. See Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 2206 (1975); Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov't, 842 S.W.2d at 615.

The fact that an association is unincorporated does not undermine its ability to seek judicial relief on behalf of its members. Tennessee courts have accorded standing to unincorporated associations in at least two reported cases. See Barnes v. Fort, 181 Tenn. 522, 530, 181 S.W.2d 881, 884 (1944); Curve Elementary Sch. Parent & Teacher's Org. v. Lauderdale County Sch. Bd., 608 S.W.2d 855, 858 (Tenn. Ct. App. 1980). In the latter case, this court recognized that an association had standing to sue in its own name on behalf of its members when: (1) its members would otherwise have standing to sue in their own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. See Curve Elementary Sch. Parent & Teacher's Org. v. Lauderdale County Sch. Bd., 608 S.W.2d at 858.

The bar association in this case meets all three preconditions to standing. First, its individual members, the licensed lawyers practicing in the Fifteenth Judicial District, have standing on their own to enjoin Ms. Glasgow from practicing law without a license. In addition to their potential loss of business, these lawyers have palpable interest in the public's perception of the legal profession and the quality of justice in the courts of the Fifteenth Judicial District. Persons engaging in the unauthorized practice of law threaten the quality of justice in the Fifteenth Judicial District. When the quality of the practice of law is threatened, all members of the profession are aggrieved. Second, the interests the bar association seeks to protect are germane to the association's purpose. Finally, there is no need for the individual association members to be personally involved in this suit. The injury caused by Ms. Glasgow's unauthorized practice of law is to the public and the legal profession as a whole. Even though her business reflects on the members of the bar as a whole, no single member is seeking damages for loss of business opportunities or any other recovery.

III. MS. GLASGOW'S ACTIVITIES

An increasing number of persons are undertaking to represent themselves in legal proceedings in which their personal and property rights are at stake. This case does not provide the occasion to analyze the reasons for this phenomenon or the advisability of participating in judicial proceedings without the assistance of counsel. It does, however, require us to join the ranks of courts that have been called upon to consider whether various sorts of out-of-court lay assistance to individuals engaged in self-representation amounts to the unauthorized practice of law.

Cases involving the unauthorized practice of law are heavily fact-dependent. They require the courts to focus specifically on the conduct of the person alleged to be practicing law without a license. It is not our task as an intermediate appellate court to announce broad rules concerning the types of assistance pro se litigants may obtain from non-lawyers.⁴ We leave that responsibility to the Tennessee Supreme Court because it alone has the power to regulate the practice of law in Tennessee. See In re Petition of Burson, 909 S.W.2d 768, 773-74 (Tenn. 1995). Our role is to carefully analyze Ms. Glasgow's conduct in light of the commonly accepted understanding of what the practice of law entails and then to determine whether her conduct amounts to the practice of law.

The definition of "[l]aw business" in Tenn. Code Ann. 23-3-101(1) (Supp. 1999) includes "the drawing or the procuring of or assisting in the drawing...