State Ex Rel. Comm'n On Unauthorized Practice of Law v. Yah

• Decision Date: 22 April 2011
• Docket Number: No. S–10–882.,S–10–882.
• Parties: STATE of Nebraska ex rel. Commission on Unauthorized Practice of Law, relator,v.M.A. YAH, doing business as Parental Rights, respondent.
• Court: Nebraska Supreme Court

281 Neb. 383

796 N.W.2d 189

STATE of Nebraska ex rel. Commission on Unauthorized Practice of Law, relator,

v.M.A. YAH, doing business as Parental Rights, respondent.

No. S–10–882.

Supreme Court of Nebraska.

April 22, 2011.

Syllabus by the Court

1. Rules of the Supreme Court: Attorneys at Law. The Nebraska Supreme Court has the inherent power to define and regulate the practice of law and is vested with exclusive power to determine the qualifications of persons who may be permitted to practice law.

2. Rules of the Supreme Court: Attorneys at Law. The inherent power of the Nebraska Supreme Court to define and regulate the practice of law includes the power to prevent persons who are not attorneys admitted to practice in this state from engaging in the practice of law.

3. Attorney and Client: Actions. A legal proceeding in which a party is represented by a person not admitted to practice law is considered a nullity and is subject to dismissal.

4. Rules of the Supreme Court: Attorneys at Law. Pursuant to its inherent authority to define and regulate the practice of law in Nebraska, the Nebraska Supreme Court has adopted rules specifically addressed to the unauthorized practice of law.

Sean J. Brennan, Special Prosecutor, for relator.M.A. Yah, pro se.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.PER CURIAM.

This is an original action to enjoin the unauthorized practice of law. We conclude that the injunction should issue.

BACKGROUND

On May 24, 2010, the Nebraska Supreme Court's Commission on Unauthorized Practice of Law (Commission) filed a petition for injunctive relief against M.A. Yah, doing business as Parental Rights (Respondent). The Commission alleged that it had received complaints that Respondent was engaging in the unauthorized practice of law within the State of Nebraska and that it had investigated such complaints and found them to have merit. Specifically, the Commission alleged that from June 1, 2009, until the date of the filing of the petition, Respondent had engaged in the unauthorized practice of law in that

(A) the Respondent is giving advice or counsel to another entity or person as to the legal rights of that entity or person or the legal rights of others for compensation, direct or indirect, where a relationship of trust or reliance exists between the party giving such advice or counsel and the party to which it is given;

(B) the Respondent has been selecting, drafting, or completing, for another entity or person, legal documents which affect the legal rights of the entity or person.

The Commission further alleged that pursuant to Neb. Ct. R. § 3–1014(F) (rev.2008), it sent Respondent written notice of its findings and offered Respondent an opportunity to enter into a written consent agreement to refrain from engaging in the unauthorized practice of law, but he declined to enter into a consent agreement and continued to engage in the unauthorized practice of law. Based upon the allegations of the petition, the Commission requested this court to invoke the procedures set forth at Neb. Ct. R. § 3–1015(C) through (F) and enjoin Respondent “from engaging in the unauthorized practice of law in the State of Nebraska under threat of punishment pursuant to the contempt powers of this Court and assess costs of the proceedings against the Respondent.”

Respondent was served with a copy of the petition and summons on June 9, 2010. He filed an answer admitting that he is a resident of Nebraska and conducts business in this State, but denying the material allegations of the petition. On the Commission's motion, this court appointed a hearing master pursuant to § 3–1015(F). On November 9, the hearing master conducted an evidentiary hearing at which Respondent appeared telephonically at Respondent's request. Following the hearing, the hearing master filed a report which included the following findings of fact (citations to the record are omitted):

1. Respondent is a resident of the State of Nebraska and conducts business in Douglas County, Nebraska.

2. Respondent is not licensed to practice law in the State of Nebraska.

3. At all pertinent times, up until October of 2010, the Respondent conducted business as Parental Rights at 1941 South 42nd Street, Suite 410 in Omaha, Douglas County, Nebraska. In ... a complaint filed in a case styled M.A. Yah, Parental Rights, Plaintiff, v. Jane Burk [sic], et al., filed in the District Court of Douglas County, Nebraska, and found at Docket 1105 No. 408, Respondent himself alleges that he does business as Parental Rights and holds himself out as specializing in services related to domestic relations cases.

4. On or about August 28, 2009, the Respondent entered into a written agreement denominated as an “Agent/Client Agreement” with Glen Krueger under which Respondent agreed, for the sum of $1,425.00 to prepare a “Complaint for Custody” and to file the same in the District Court of Douglas County.

5. Pursuant to the “Agent/Client Agreement,” the Respondent prepared what was entitled a “Complaint for Custody” and filed the same in the District Court of Douglas County, Nebraska in a case styled Glen Krueger v. Ashley McDermott and filed at Docket 1099 No. 165. On page three of the “Complaint for Custody” it indicates that the pleading was prepared by Parental Rights, P.O. Box 390945, Omaha, Nebraska 68139. The post office box is the same post office box listed on the business card of [Respondent], Regional Manager for Parental Rights.

6. In September of 2009, Mr. Krueger contacted Catherine Mahern, a professor of law at Creighton University and Director of the clinical program, who was volunteering at the self-help desk in the Douglas County Courthouse. Mr. Krueger stated to Ms. Mahern that [Respondent] had prepared the “Complaint for Custody” described above and provided him with legal advice on issues and process regarding the case. Mr. Krueger told Ms. Mahern that, pursuant to the “Agent/Client Agreement”, he had made at least one payment in addition to the initial payment made at the time of execution of the agreement. Mr. Krueger confirmed the identity of [Respondent] to Ms. Mahern through a review of mug shots that had been provided by the Sheriff's Department to the Douglas County District Court Clerk.

7. Respondent also drafted pleadings in a case styled Danner v. Barnes, in the District Court of Douglas County, Nebraska, at Docket 1101 No. 388. A “Complaint for Visitation” filed on or about November 4, 2009, in that case shows at the bottom thereof that it was prepared by Parental Rights, P.O. Box 390945, Omaha, NE 68139. Thereafter, in the same case, an “Amemded [sic] Motion for Temporary Allowance With Notice of Hearing” was likewise filed on or about the 8th day of December, 2009, with a notation that it was prepared by Parental Rights, P.O. Box 390945, Omaha, NE 68139.

8. Respondent also prepared pleadings in a case styled State of Nebraska on behalf of itself and minor child Quartez A. Joplin, Plaintiff, v. Timothy M. Thompson, Jr., Defendant, filed in the District Court of Lancaster County, Nebraska, as Case No. CI 05–1365. In the court file, there is a pleading entitled “Application to Modify” filed on behalf of Defendant Timothy M. Thompson, Jr., dated the 21st day of December, 2009, which contains a notation at the end to the effect that it was prepared by Parental Rights, P.O. Box 390945, Omaha, NE 68139. Thompson appeared in Court on the motion, which had not been set for a hearing, and provided to District Court Judge Karen Flowers a business card of the individual who had prepared the pleadings on his behalf. The business card is that of [Respondent], Regional Manager for Parental Rights, with the same post office box 390945 as appears at the foot of the filed “Application to Modify.”

9. On at least two occasions, Respondent was identified as the individual filing pleadings on behalf of third parties. In the case of State of Nebraska, et al., v. Lamensia Epperson, filed in the Douglas County District Court as Case No. 1009–084, personnel at the Douglas County District Court Clerk's office, who were familiar with Respondent, confirmed that he personally filed a pleading to modify an earlier decree and award Epperson custody of her children. Similarly, in a case styled Butler v. Butler, filed in the Douglas County District Court as Case No. 1091–049, personnel from the office of the Douglas County District Court Clerk confirmed that Respondent had filed an application to modify on behalf of Mr. Breyland Butler. Ms. Mahern confirmed, through conversations with Mr. Butler, that Mr. Butler learned of Respondent through an advertisement in the Thrifty Nickel, contacted Respondent, and entered into an agreement for at least $1,400.00 for which Respondent would prepare and file pleadings on his behalf in the case. Mr. Butler confirmed that Respondent prepared the pleadings and filed the same.

10. On at least two occasions, Respondent has filed actions in the Douglas County Court, Civil/Small Claims Division, seeking payment for the provision of legal services. In a case styled M.A. Yah v. Howard W. Dial, Jr., filed as Case No. SC–09–1367 in the Douglas County Court, Civil/Small Claims Division, on December 2, 2009, Respondent alleged that “the Defendant promised to pay [Respondent] the sum of $1,625.00 to file a Complaint for Custody; ...” Similarly, in a case styled M.A. Yah v. Rosetta L. Bush, filed as Case No. SC 09–1368 on December 14, 2009, in the Douglas County Court, Civil/ Small Claims Division, Respondent alleged that “Rosetta Bush signed a contract hiring [Respondent] to prepare and file a joint custody complaint, for the sum of $1,425.00. After the complaint was filed, the Defendant made a couple of payments, then quit paying [Respondent], breaking the written contract.”

11. The issue of Respondent possibly engaging in the unauthorized practice of law was brought to the attention of the [Co...