Nolo Press/Folk Law, Inc., In re

• Decision Date: 15 April 1999
• Docket Number: No. 98-0724,98-0724
• Parties: 42 Tex. Sup. Ct. J. 539 In re NOLO PRESS/FOLK LAW, INC., Relator.
• Court: Texas Supreme Court

Page 768

991 S.W.2d 768

42 Tex. Sup. Ct. J. 539

In re NOLO PRESS/FOLK LAW, INC., Relator.

No. 98-0724.

Supreme Court of Texas.

Argued Oct. 21, 1998.

Decided April 15, 1999.

R. James George, Peter D. Kennedy, Austin, for Relator.

James Donald Blume, Bretton C. Gerard, Dallas, Wesley V. Geary, Plano, J. Rodney Gilstrap, Marshall, Larry W. Lay, Austin, Clint W. Lewis, Beaumont, James N. Rader, Steven W. Young, Linda A. Acevedo, Austin, for Respondent.

Justice HECHT delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice OWEN, Justice BAKER, Justice HANKINSON, Justice O'NEILL, and Justice GONZALES join.

In this original proceeding, Nolo Press, Inc., a publisher of self-help legal books and computer software, petitions for a writ of mandamus compelling the Unauthorized Practice of Law Committee to produce documents and information related to the Committee's operations in general, and in particular, to its current investigation into whether certain of Nolo Press's publications constitute the unauthorized practice of law in Texas. Alternatively, Nolo Press requests clarification or modification of this Court's September 16, 1986 Order ¹ that limits disclosure of Committee records. We hold that the Court lacks jurisdiction to grant the requested relief by mandamus, and that Nolo Press's petition should be treated in part as an administrative rather than a judicial matter. By administrative order issued today, ² we vacate the Court's 1986 Order to permit disclosure of Committee records as provided by newly adopted Rule 12 of the Rules of Judicial Administration. ³

I

We begin by describing the Unauthorized Practice Committee and then summarizing the events which have given rise to this proceeding.

A

The Supreme Court of Texas has inherent power to regulate the practice of law in Texas for the benefit and protection of the justice system and the people as a whole. ⁴ The Court's inherent power is The practice of law in Texas is restricted to members of the State Bar, with limited exceptions permitted by this Court. ⁹ The "practice of law" is defined in the State Bar Act as:

                derived in part from Article II, Section 1 of the Texas Constitution, which divides State governmental power among three departments. 5  The authority conveyed to the Supreme Court by this constitutional provision includes the regulation of judicial affairs and the direction of the administration of justice in the judicial department. 6  Within this authority is the power to govern the practice of law. 7  The Court's inherent power under Article II, Section I to regulate Texas law practice is assisted by statute, primarily the State Bar Act. 8
                

the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined. ¹⁰

This statutory definition, however, is by its own terms "not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law." ¹¹ From time to time the Legislature has imposed civil and criminal penalties on the unauthorized practice of law. ¹² Most recently The entity charged with policing the unauthorized practice of law is the Unauthorized Practice of Law Committee. The first such entity, the Committee on the Lay and Corporate Encroachment of the Practice of Law, was created in 1932 by the voluntary Texas Bar Association and its members appointed by the Association's president. ¹⁴ The Committee's sole purpose was to draft and urge enactment of a statute defining the practice of law and prohibiting the unauthorized practice. That goal having been accomplished in the 1933 legislative session, ¹⁵ the Committee was made a standing committee of the Bar Association with the name, the Committee on Unlawful Practice of the Law. ¹⁶ The Committee's purposes were enlarged to include informing local bar associations about the problems of the unauthorized practice of law, investigating possible violations of the new statute, and enforcing the statute by injunctions and criminal prosecutions. ¹⁷ Shortly after the integrated State Bar of Texas was formed in 1939, ¹⁸ this Court promulgated rules governing its operations, which called for local grievance committees to investigate and prosecute the unauthorized practice of law. ¹⁹ The State Bar also created a state committee on unauthorized practice to assist the local grievance committees, stimulate interest, and disseminate information. ²⁰ The state committee was not a standing committee, however, and its role was largely advisory; investigation and prosecution of the unauthorized practice of law was left to local grievance committees. ²¹ Rules amendments adopted by the bar and approved by this Court in 1952 established the Unauthorized Practice of Law Committee as a permanent entity in the State Bar administration and gave the Committee investigative and prosecutorial powers, as well as the responsibility to inform the State Bar and others about the unauthorized practice of law. ²² In 1979, the Legislature amended the State Bar Act to require that members of the UPL Committee be appointed by this Court rather than by the president of the State By Order dated November 17, 1980, ²⁴ the Court promulgated rules governing "the Unauthorized Practice of Law Committee for the State Bar of Texas". The Committee's duties are prescribed as follows:

                in 1993, the Legislature made the unauthorized practice of law, defined somewhat differently in the Penal Code than in the State Bar Act, a Class A misdemeanor or, for multiple convictions, a third degree felony. 13
                Bar. 23  Since then the Court has appointed Committee members
                

The Committee shall keep the Court and the State Bar informed with respect to the unauthorized practice of law by laypersons and lay agencies and the participation of attorneys therein, and concerning methods for the prevention thereof. The Committee shall seek the elimination of the unauthorized practice by action and methods as may be appropriate for that purpose, including the filing of suits in the name of the Committee. ²⁵

Section 81.104 of the State Bar Act defines the UPL Committee's responsibilities similarly. ²⁶ The UPL Committee is thus empowered, not to adjudicate whether activities constitute the unauthorized practice of law, but to seek adjudication of that issue in appropriate forums, and to provide information concerning such activities to this Court and the State Bar of Texas. To further these purposes, the Court's 1980 Order provides that the UPL Committee may adopt rules and procedures to guide its operations ²⁷ and may subpoena witnesses and tangible evidence. ²⁸ But the Committee has no authority to adjudicate whether a particular activity constitutes an unauthorized practice of law; indeed, the Order prohibits the Committee from issuing even advisory opinions concerning the unauthorized practice of law. ²⁹

Section 81.103 and the 1980 Order ³⁰ both provide that the UPL Committee is comprised of nine members, at least three of whom must not be lawyers, appointed by this Court for staggered three-year terms. Members receive no monetary compensation for their service, but Section 81.103(f) and the 1980 Order ³¹ require the State Bar to pay the Committee's necessary and actual expenses. (The State Bar is, and is declared by statute to be, a public corporation and an administrative agency of the judicial department of government. ³² ) Section 81.106 gives the UPL Committee and persons to whom it delegates authority immunity from liability "for any damages for an act or omission in the course of the official duties of the committee", and gives complainants and witnesses before the Committee the same immunity they would have in a judicial proceeding. The 1980 Order provides a similar grant of immunity. ³³ Section 81.105 provides that the UPL Committee is not prohibited from using local subcommittees, and the 1980 Order expressly authorizes the appointment of subcommittees The UPL Committee's authority to institute legal proceedings to prohibit the unauthorized practice of law is not exclusive. Such proceedings have been prosecuted by grievance committees, ³⁶ local bar associations, ³⁷ and groups of attorneys. ³⁸ Criminal proceedings would ordinarily, of course, be conducted by criminal prosecuting attorneys.

                of one or more persons. 34  Finally, this Court's September 16, 1986 Order prohibits disclosure of the Committee's records except for use in enforcement proceedings, to satisfy any requirements of the State Bar Act, to assist law enforcement agencies and prosecutors, and in furtherance of this Court's orders. 35
                

B

In June 1997, the Chair of the Houston UPL Subcommittee wrote Nolo Press the following letter:

The Unauthorized Practice of Law Committee has received information that you may have engaged in activities which constitute the unauthorized practice of law. More specifically, it is our information that you have prepared and distributed to citizens of the State of Texas certain software and a User's Guide which represent that your forms as well as the suggested information to be inserted will properly affect legal rights. This software includes "Living Trust Maker--2.0". Your activities, the representations made, the form of the presentations and other aspects of these programs may constitute the unauthorized practice of law.

The Unauthorized Practice of Law Committee is appointed by the Supreme Court of the State of Texas, and is charged by statute to...