McKenzie v. Burris, No. 73--73

• Court: Supreme Court of Arkansas
• Writing for the Court: FOGLEMAN
• Citation: 500 S.W.2d 357,255 Ark. 330
• Parties: , 61 A.L.R.3d 250 Charles N. McKENZIE et al., Petitioners, v. Myrtle BURRIS et al., Respondents.
• Decision Date: 22 October 1973
• Docket Number: No. 73--73

Page 357

500 S.W.2d 357 255 Ark. 330, 61 A.L.R.3d 250 Charles N. McKENZIE et al., Petitioners,
v.
Myrtle BURRIS et al., Respondents. No. 73--73. Supreme Court of Arkansas. Oct. 22, 1973.

[255 Ark. 331]

Page 359

Williams & Gardner, Russellville, Wright, Lindsey & Jennings, Smith, Williams, Friday, Eldredge & Clark, Little Rock, for petitioners.

Krivcher & Cox, Memphis, Tenn. and Mobley & Smith, Russellville, by Oscar Fendler, Blytheville, for respondents.

[255 Ark. 332] FOGLEMAN, Justice.

Petitioners are defendants in a medical malpractice action brought by Myrtle and Billy D. Burris in the Circuit Court of Pope County. They seek by writ of certiorari to quash the order of that court granting the motion of Mobley and Smith, as attorneys for the Burrises, to enter the name of James S. Cox as an attorney of record in this case to assist them, as associate counsel, in all phases of trial of the action. Mobley and Smith is a firm of attorneys licensed to practice in Arkansas and residing in Pope County. It was employed by the Burrises and, pursuant to that employment, filed a complaint. After answer had been filed by petitioners, Mobley and Smith filed the motion in question. Petitioners then moved to strike the order granting the motion of Mobley and Smith, alleging that this case was not one wherein a nonresident attorney was seeking admission for a single or particular case because, they alleged, Cox was practicing law in Arkansas without having been licensed to practice in Arkansas. This motion was denied.

It is admitted that Cox is a resident of Memphis, Tennessee, where he maintains his office for the practice of law and that he has been admitted to practice law in all courts of the state of Tennessee, but has not been licensed in any other state. Cox had previously participated, as associate counsel, in one personal injury case, a will contest, and six medical malpractice actions filed in Arkansas. He had also consulted with Arkansas attorneys with respect to two other medical malpractice cases in which no suit has been filed.

It has been suggested that the petitioners, as the adversaries of the plaintiffs who would be represented by Cox, have no standing to question, on certiorari, the right of Cox to participate in the trial, or the right of respondents or their attorneys, Mobley and Smith, to employ Cox as an associate attorney in the case. It has been recognized in this state for 135 years that a party whose interest might be jeopardized by prosecution of a suit against him may require even a regularly licensed attorney, duly admitted to practice in the courts of this state, to show his authority to represent an adversary. Tally, [255 Ark. 333] Admr. v. Reynolds, 1 Ark. 99. See also, Cartwell v. Menifee, 2 Ark. 356. This right has subsequently been recognized in Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S.W. 83; Red Bud Realty Co. v. South, 153 Ark. 380, 241 S.W. 21; and Nunez v. O.K. Processors, Inc., 238 Ark. 429, 382 S.W.2d 384. It is widely held in other jurisdictions

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that proceedings in a suit instituted or conducted by one not entitled to practice are a nullity, and if appropriate steps are timely taken the suit may be dismissed, a judgment in the cause reversed, or the steps of the unauthorized practitioner disregarded. See Bennie v. Triangle Ranch Co., 73 Colo. 586, 216 P. 718 (1923); Niklaus v. Abel Construction Co., 164 Neb. 842, 83 N.W.2d 904 (1957); Landis v. Superior Ct., 232 Cal.App.2d 548, 42 Cal.Rptr. 893 (1965); City of Downey v. Johnson, 263 Cal.App.2d 775, 69 Cal.Rptr. 830 (1968); Stevens v. Jas. A. Smith Lumber Co., 54 S.D. 170, 222 N.W. 665 (1929); Duysters v. Crawford, 69 N.J.L. 229, 54 A. 823 (1903); Hazard v. Phoenix Woodworking Co., 78 N.J.Eq. 568, 80 A. 456 (1911); Maso Holding Corp. v. Einstein, 17 N.Y.S.2d 655 (Mun.Ct.1939); Goldstein v. Marriott, 14 Pa.D. & C. 635 (1929), followed in Winters v. Sheporwich, 83 Pa.D. & C. 484 (1952); Colton v. Oshrin, 155 Misc. 383, 278 N.Y.S. 146 (1934); Anderson v. Coolin, 27 Idaho 334, 149 P. 286 (1915); Application of County Collector, 1 Ill.App.3d 707, 274 N.E.2d 164 (1971); Leonard v. Walsh, 73 Ill.App.2d 45, 220 N.E.2d 57 (1966). See 7 C.J.S. Attorney and Client § 16b, p. 725. The question was raised in Goldstein by a motion by the adverse party to strike the complaint. In Stevens, it was raised by the plaintiff's motion to strike an answer signed only by nonresident attorneys. In Colton, where the court said that prejudice was to be conclusively presumed, the question was presented by the adverse party's motion for mistrial. In City of Downey v. Johnson and Application of County Collector, the question was raised by the appellate court. In North Laramie Land Co. v. Hoffman, 27 Wyo. 271, 195 P. 988 (1921), it was held that the adverse party might properly move to strike a petition signed only by nonresident attorneys not admitted to practice in the state. See also Bradley v. Sudler, 172 Kan. 367, 239 P.2d 921 (1952); 174 Kan. 293, 255 P.2d 650 (1953).

[255 Ark. 334] On the other hand, it has been held that if and when a nonresident attorney, not licensed to practice in the state where an action is pending, seeks to practice in that action, the matter of his qualification will then be addressed to the discretion of the trial court, State Bar of Texas v. Belli, 382 S.W.2d 475 (Tex.1964), and that, unless a party in interest in the particular case presents the question of the disqualification of a nonresident attorney to appear as counsel for an adverse party, his entitlement to practice before the court will be presumed and the question of his disqualification waived. Walker v. Walker, 123 So.2d 692 (Fla.Ct.App.1960). See also, Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930). Whichever view we might take of the situation, it only seems logical that an adverse party who could question the authority of the attorney to represent his opponent can also, to the same extent, question the authority of that attorney to practice in the state, or the particular court in which the litigation is pending, insofar as that case is concerned. We have no hesitancy in saying that petitioners' challenge to Cox's participation in the trial was appropriately and timely made in the trial court.

But it is contended by respondents that certiorari is not available as a remedy to review the action of the trial court in this regard, and they have moved to dismiss the petition for that reason, saying that there are other adequate remedies. Among those suggested are appeal from any eventual judgment against petitioners, complaint to the Supreme Court Committee on Professional Conduct, and prosecution for violation of Ark.Stat.Ann. § 25--101 et seq. (Repl.1962).

It is true that these and other remedies might have been appropriate at the instance of the proper party, if the facts should justify such actions. Petitions seeking judicial action against persons charged with the unauthorized practice of law have been entertained by the courts

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when filed by a local bar association or one of its committees or when presented on behalf of the state bar or one of its committees. 7 Am.Jur.2d 103, Attorneys at Law, § 89. See Arkansas Bar Association v. Union National Bank of Little Rock, 224 Ark. 48, 273 S.W.2d 408. It seems well [255 Ark. 335] settled that unauthorized practice of law, at least by court appearances, is an unlawful intrusion and usurpation of the function of an officer of the court, and constitutes a contempt of any court in which or under whose authority or sanction the unauthorized person pretends to act. Bessemer Bar Association v. Fitzpatrick, 239 Ala. 663, 196 So. 733 (1940). See also, Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930); New Jersey Photo Engraving Co. v. Schonert and Sons, 95 N.J.Eq. 12, 122 A. 307 (1923); State v. Barlow, 131 Neb. 294, 268 N.W. 95, 132 Neb. 166, 271 N.W. 282 (1936). While the pertinent authorities make it quite clear that contempt proceedings may be instituted by an interested bar association, or one of its committees, it does not seem that the right of an adverse litigant to initiate contempt procedures in such cases is so widely recognized. But there is respectable authority that the courts will not resort to this drastic remedy unless there is no other efficient remedy available and there is an evident need for summary action to protect the public and the jurisdiction of the court. See 7 C.J.S. Attorney and Client § 16c, p. 726 and cases cited. In any event, this remedy would undoubtedly be inadequate for petitioners, because it seems unlikely that punishment for contempt would be imposed after their motion to strike had been denied by the court in which the case was to be tried.

We have approved the granting of injunctive relief at the suit of the state bar association. See Arkansas Bar Association v. Union National Bank, supra; Beach Abstract & Guaranty Co. v. Bar Association of Arkansas, 230 Ark. 494, 326 S.W.2d 900. This is generally accepted as a proper form of relief, particularly where class actions are involved. See Conway-Bogue Realty Co. v. Denver Bar Assn., 135 Colo. 398, 312 P.2d 998 (1957); Hexter Title & Abstract Co., Inc. v. Grievance Committee, 5th Cong. Dist., State Bar of Texas, 142 Tex. 506, 179 S.W.2d 946, 157 A.L.R. 268 (1944); Ann. 90 A.L.R.2D 63, 14 A.L.R. 359. ¹ Here again the suitability [255 Ark. 336] and adequacy of this relief to an individual litigant to prevent his adversary from utilizing, as an attorney, a person not properly authorized to practice in the court wherein the litigation is pending are not so well recognized and are highly questionable, to say the least. This remedy is, generally speaking, an equitable one lying within the jurisdiction of our chancery courts. Harrison v. Knott, 219 Ark. 565, 243 S.W.2d 642, 28 A.L.R.2d 405; Ex parte Kennedy, 11 Ark. 598. The undesirability of one court's interfering with proceedings pending...