Ky. Bar Ass'n v. Brooks

• Decision Date: 23 September 2010
• Docket Number: No. 2010-SC-00000139-KB.,2010-SC-00000139-KB.
• Parties: KENTUCKY BAR ASSOCIATION, Movant, v. Sandra Camille BROOKS, Respondent.
• Court: United States State Supreme Court — District of Kentucky

325 S.W.3d 283

KENTUCKY BAR ASSOCIATION, Movant,
v.
Sandra Camille BROOKS, Respondent.

No. 2010-SC-00000139-KB.

Supreme Court of Kentucky.

Sept. 23, 2010.

OPINION AND ORDER

Upon motion of the Kentucky Bar Association (KBA), this Court entered an order directing Sandra Camille Brooks to show cause why this Court should not hold her in contempt for her continued unauthorized practice of law in violation of an August 25, 2005 Order of this Court. The 2005 order held Respondent in contempt for her failure to abide by a 1997 KBA directive to cease and desist engaging in the unauthorized practice of law and, again, ordered her to refrain from the unauthorized practice of law. Respondent failed to timely respond to this Court's April 22, 2010 Show Cause Order. Nevertheless, a response was filed upon this Court's granting of Respondent's motion for an extension of time.

At the outset, we must address a challenge to this Court's jurisdiction. Respondent filed a motion to dismiss this case, asserting that the KBA has failed to state a claim upon which relief can be granted and further asserting that this Court lacks subject matter jurisdiction. Although there is no accompanying explanation or argument, we surmise that Respondent is questioning this Court's authority to discipline her, a non-lawyer, for the violation of a Supreme Court Rule governing the practice of law. First, Respondent's assertion would have been better directed to the previous 2005 proceedings wherein this Court sanctioned her and enjoined her from the unauthorized practice of law. At this juncture, the proceedings are merely contempt proceedings for Respondent's violation of our previous order. Clearly, there can be no legitimate challenge to this Court's jurisdiction to enforce its own order and to impose contempt sanctions for violations of such order. Nevertheless, because of the significance of a jurisdictional challenge, we will address the underlying issue of this Court's jurisdiction to enjoin and sanction non-lawyers for the unauthorized practice of law.

This Court has long exercised its jurisdiction to sanction and enjoin non-attorneys from practicing law without a license. See, e.g.,

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Hargett v. Lake, 305 S.W.2d 523 (Ky.1957); Carter v. Brien, 309 S.W.2d 748 (Ky.1956); Hobson v. Kentucky Trust Co. of Louisville, 303 Ky. 493, 197 S.W.2d 454 (Ky.1946); Kentucky State Bar Ass'n v. First Fed. Sav. & Loan Ass'n of Covington, 342 S.W.2d 397 (Ky.1961); Frazee v. Citizens Fid. Bank & Trust Co., 393 S.W.2d 778 (Ky.1964); Kentucky State Bar Ass'n v. Kelly, 421 S.W.2d 829 (Ky.1967); Kentucky Bar Ass'n v. Fox, 536 S.W.2d 469 (Ky.1976); Kentucky State Bar Ass'n v. Bailey, 409 S.W.2d 530 (Ky.1966). Furthermore, the contention that this Court does not have jurisdiction to proceed against a nonmember of the legal profession for the unauthorized practice of law was expressly rejected in Kentucky State Bar Ass'n v. First Fed. Sav. & Loan Ass'n of Covington, 342 S.W.2d 397 (Ky.1960), a holding that was reaffirmed in Kentucky State Bar Ass'n v. Tussey, 476 S.W.2d 177 (Ky.1972).

Along with prior instances of sanctions and injunctions imposed by Kentucky's highest Court against non-lawyers for the unauthorized practice of law, First Federal relied on In re Baker, 8 N.J. 321, 85 A.2d 505 (1951) for its exercise of jurisdiction over non-lawyers. Baker, a decision of New Jersey's highest court, explained that jurisdiction was expressly granted by its Constitution, but even absent such express authority, inherent power existed in the Court to exercise jurisdiction over laymen who were practicing law without a license. Significantly, New Jersey's constitutional provision, N.J. Const. Art. VI, § 2, is very similar to Ky. Const. § 116. ¹ Both provisions provide for the state's supreme court to govern admission to the bar and to discipline members of the bar. Baker explained that this express authorization to regulate licensed attorneys necessarily carried with it an implied corollary power to sanction those who invade the province of the profession without obtaining admission to the bar. Baker eloquently stated the rationale as follows:

It is generally conceded throughout the country that the power to control admissions to the bar and to discipline members of the bar is inherent in the judiciary. Here these powers have been expressly conferred on the Supreme Court by art. VI, sec. II, par. 3 of the Constitution: “The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted.” But whether inherent or express, these powers over the admission and discipline of members of the bar would be meaningless and futile if laymen might practice law with impunity.... The reason for prohibiting the unauthorized practice of law by laymen is not to aid the legal profession but to safeguard the public from the disastrous results that are bound to flow from the activities of untrained and incompetent individuals, assuming to practice a learned profession which entails years of preparation and without being bound by the high standards of professional conduct and integrity which are imposed on members of the bar by the Canons of Professional Ethics, which are zealously enforced by the courts for the public good.

Baker, 85 A.2d at 511-12.

Baker gleaned insight from the highest courts of Illinois and Vermont, which had already addressed the issue. In In re Morse, 98 Vt. 85, 126 A. 550, 553 (1924), the Supreme Court of Vermont said:

That the express legislative grant to this court of exclusive and full authority to determine who shall practice as attorneys

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before the courts of this state carries with it the implied power to do whatever may be reasonably necessary to make such grant effective, even to punishing for contempt those pretending to such office, cannot be doubted.

Similarly, in People ex rel. Ill. State Bar Ass'n v. Peoples Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901, 906 (1931), the Supreme Court of Illinois stated:

Having inherent and plenary power and original jurisdiction to decide who shall be admitted to practice as attorneys in this state, this court also has all the power and jurisdiction necessary to protect and enforce its rules and decisions in that respect. Having power to determine who shall and who shall not practice law in this state, and to license those who may act as attorneys and forbid others who do not measure up to the standards or come within the provisions of its rules, it necessarily follows that this court has the power to enforce its rules and decisions against offenders, even though they have never been licensed by this court. Of what avail is the power to license in the absence of power to prevent one not licensed from practicing as an attorney? In the absence of power to control or punish unauthorized persons who presume to practice as attorneys and officers of this court the power to control admissions to the bar would be nugatory. And so it has been held that the court, which alone has authority to license attorneys, has a necessary corollary ample implied power to protect this function by punishing unauthorized persons for usurping the privilege of acting as attorneys.

A related concept was addressed in Hobson v. Kentucky Trust Co. of Louisville, supra, which explained that unauthorized practice of law proceedings could be initiated not only by the bar association but by any practicing attorney because “an acquired right to practice law vests the holder with a ‘property right’ which he or she may protect against an intruder into the profession who has not...