State ex rel. Pearson v. Gould

• Court: Indiana Supreme Court
• Writing for the Court: DeBRULER; GIVAN
• Citation: State ex rel. Pearson v. Gould, 437 N.E.2d 41 (Ind. 1982)
• Decision Date: 13 July 1982
• Docket Number: No. 581S122,581S122
• Parties: STATE of Indiana ex rel. Linley E. PEARSON, Attorney General of Indiana, Relator, v. Eli W. GOULD, Respondent.

Page 41

437 N.E.2d 41

STATE of Indiana ex rel. Linley E. PEARSON, Attorney General of Indiana, Relator, v. Eli W. GOULD, Respondent.

No. 581S122.

Supreme Court of Indiana.

July 13, 1982.

Linley E. Pearson, Atty. Gen., Ronald D. Buckler, Deputy Atty. Gen., Indianapolis, for relator.

Ronald E. Elberger, Indianapolis, for respondent.

David W. Gotshall, Anderson, for amicus curiae Indiana Federation of Teachers.

Fred O. Towe, Indianapolis, for amicus curiae Indiana State Employees' ass'n.

Richard J. Darko, Thomas M. Hinshaw, Indianapolis, for amicus curiae Indiana State Teachers Ass'n.

Jamie L. Weinberg, C. Chris Sautter, Bloomington, for amicus curiae Legal Services Organization of Indiana, Inc.

DeBRULER, Justice.

This is an original action brought by the Attorney General pursuant to the provisions of Ind.R.Adm. & Dis. 24 to restrain conduct alleged to constitute the unauthorized practice of law. A hearing on the petition was held before a commissioner appointed by the Court which resulted in findings of fact and a conclusion that respondent Gould engaged in the unauthorized practice of law in representing a complainant before the State Employees' Appeals Commission. Briefs by the Attorney General, respondent, and Amicus Curiae have been received, and oral argument held.

The statute, the State Personnel Act, pursuant to which the subject hearing was held creates a system of personnel administration in which all incidents of employment in the state service as defined are governed. The system is based upon "merit principles and scientific methods relating to appointment, compensation, promotion, transfer, lay-off, removal and discipline of employees." Ind.Code Ann. Sec. 4-15-2-1. The state personnel board and director have the duty to classify positions, administer entrance and promotion tests, maintain eligibility, promotion and re-employment lists, and provide employee training. As part of this personnel system, a complaint procedure for employees is erected. An employee may formally complain "if his status of employment is involuntarily changed or if he deems conditions of employment to be unsatisfactory." Ind.Code Ann. Sec. 4-15-2-35. The process commences with the immediate supervisor and may continue step by step through the intermediate supervisor, the appointing authority, the state personnel director, the state employees appeals commission (hereinafter commission), and finally binding arbitration.

The commission consists of five members, the qualifications for which are that they be "citizens of the state who are in sympathy with and have knowledge of the scientific application of merit principle to public employment with particular appreciation for fairly and impartially determining the validity of employee appeals or lack thereof". Ind.Code Ann. Sec. 4-15-1.5-1 and 2 (since amended). If the resolution of the complaint is not in favor of the employee, the employee may seek an appeal to the commission, which is charged with the duty of conducting a public hearing "with the right to be represented and to present evidence". Ind.Code Ann. Sec. 4-15-2-35. If the decision of the commission is not agreeable to the employee, the employee may elect to go further and submit the complaint to arbitration which is the last step in the complaint process.

The question before this Court is whether the conduct of one who represents an employee before the commission engages in the practice of law reserved exclusively to licensed lawyers. Respondent Gould, in his appearance on behalf of the employee Kiger, filed an appearance form and requests for issuance of subpoenas. At the hearing he presented evidence, and arguments and examined and cross-examined witnesses. Mr. Gould is not a member of the bar, but rather carries the designation of labor relations representative, and is an employee of the Indiana State Employees Association.

A person who gives legal advice to clients and transacts business for them in matters connected with the law is engaged in the practice of law. Fink v. Peden, (1938) 214 Ind. 584, 17 N.E.2d 95. The practice of law includes the preparation of legal instruments and contracts by which legal rights are secured although the matter may or may not be pending in a court. Eley v. Miller, (1893) 7 Ind.App. 529, 34 N.E. 836. The preparation and drafting of a will and the giving of advice as to the contents and legal effect of a will is the practice of law. State ex rel. Indiana State Bar Association v. Osborne, (1961) 241 Ind. 375, 172 N.E.2d 434. Negotiating a settlement on behalf of a widow and children with a railroad on claim for death of deceased employee was the practice of law. Fink v. Peden, supra. In a more recent case, negotiating a settlement on...