West Virginia State Bar v. Earley

• Decision Date: 09 June 1959
• Docket Number: No. 11021,11021
• Citation: 144 W.Va. 504,109 S.E.2d 420
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA STATE BAR et al. v. Emmett J. EARLEY.

Page 420

109 S.E.2d 420

144 W.Va. 504

WEST VIRGINIA STATE BAR et al. v. Emmett J. EARLEY.

No. 11021.

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1959.

Decided June 9, 1959.

Syllabus by the Court

1. A court of equity has jurisdiction to prevent by injunction the unlawful practice of law by a layman when such relief is sought by attorneys at law acting for themselves and other affected members of the legal profession or by a duly constituted and recognized bar association.

2. Though the right to practice law is not a natural or constitutional right or an absolute or de jure right, it is a valuable special privilege in the nature of a franchise which may be protected by injunction against invasion.

3. The practice of law, both in court and out of court, by a person not licensed to practice is an illegal usurpation of the personal privilege of a duly licensed attorney at law.

4. A layman who appears in behalf of claimants for compensation at hearings before the State Compensation Commissioner, an administrative agency or tribunal, and his duly appointed trial examiners, and prepares notices of appeal from the rulings of the commissioner to the Workmen's Compensation Appeal Board, is engaged in the practice of law and such conduct constitutes the unauthorized practice of law which may be prevented by injunction.

5. The character of the act, and not the place where it is performed, is the decisive factor in determining whether the act constitutes the practice of law.

6. The justification for excluding from the practice of law persons who are not admitted to the bar and for limiting and restricting such practice to licensed members of the legal profession is not the protection of the members of the bar from competition or the creation of a monopoly for the members of the legal profession, but is instead the protection of the public from being advised and represented in legal matters by unqualified and undisciplined persons over whom the judicial department of the government could exercise slight or no control.

7. The judicial department of the government has the inherent power to define, supervise, regulate and control the practice of law and the Legislature can not restrict or impair this power of the courts or permit or authorize laymen to engage in the practice of law.

8. The judicial department of the government has the inherent power, independent of any statute, to inquire into the conduct of a natural person, a lay agency, or a corporation to determine whether he or it is usurping the function of an officer of a court and illegally engaging in the practice of law and to put an end to such unauthorized practice wherever it is found to exist.

9. The State Compensation Commissioner, as an administrative agency or tribunal, is without authority, by rule or otherwise, to permit an agent who is not a duly licensed attorney to practice before him, and a provision of any such rule which attempts to permit an agent who is not a duly licensed attorney to practice before the commissioner is void and of no force or effect.

10. In the exercise of their inherent power the courts may supervise, regulate and control the practice of law by duly authorized attorneys and prevent the unauthorized practice of law by any person, agency or corporation.

Carl B. Vickers, Fayetteville, for appellant.

Woodroe & Kizer, John O. Kizer, Charleston, for appellees.

HAYMOND, Judge.

In this suit in equity, instituted in the Circuit Court of Fayette County, West Virginia, in January 1956, the plaintiffs, The West Virginia State Bar, a statutory association composed of all licensed attorneys at law engaged in the practice of law within the State of West Virginia, and Samuel D. Littlepage, George D. Bailey, Wilson Anderson, Leonard A. Shawkey, J. E. Watson, Fred O. Blue and Arthur Ritz Kingdon, individually as duly licensed attorneys at law and as members of the Committee on Unlawful Practice of such association, seek to enjoin and restrain the defendant, Emmett J. Earley, from engaging in the practice of law within the State of West Virginia.

The bill of complaint charges that the defendant, an adult resident of Boomer, Fayette County, West Virginia, who has never been admitted or licensed to engage in the practice of law within the State of West Virginia or to represent that he is qualified or authorized to engage in such practice, has been for several years and is now engaged in the practice of law within the State of West Virginia and represents that he is is qualified and authorized to engage in such practice, in violation of the provisions of Section 4, Article 2, Chapter 30, Code, 1931, the common law, and the rule of this Court promulgated March 28, 1947, effective May 1, 1947, pursuant to Section 4a, Article 1, Chapter 51, Code, 1931, as amended. It specifically alleges that the defendant, during the period 1951 to 1955, did advise and represent eleven separate claimants in adversary proceedings before the State Compensation Commissioner of West Virginia in hearings and proceedings before the commissioner or his duly appointed trial examiners and in behalf of two such claimants prepared notices of appeal to the Workmen's Compensation Appeal Board from awards and rulings of the commissioner involving issues of fact and questions of law.

The prayer of the bill of complaint is that the defendant be permanently restrained and enjoined from (a) directly or indirectly advising any person or persons concerning his or their rights or remedies under the provisions of the Workmen's Compensation Law of West Virginia; (b) prosecuting before the State Compensation Commissioner of West Virginia, or his duly authorized representatives, in behalf of any person or persons, claims for compensation for injuries under the Workmen's Compensation Law of West Virginia; (c) appearing in hearings and proceedings before the State Compensation Commissioner, or his duly authorized representatives, in behalf of claimants for compensation and representing the interests of such person or persons before the commissioner by examining and cross-examining witnesses, offering and introducing evidence, objecting to the introduction of evidence and testimony offered by others, and presenting statements and arguments in behalf of such person or persons; (d) advising any person or persons with respect to appeals from awards and findings of the State Compensation Commissioner to the Workmen's Compensation Appeal Board and preparing and filing in behalf of any person or persons appeals from the awards and rulings of the commissioner to the appeal board; and (e) in any way or manner, directly or indirectly, engaging in the practice of law or advising any person or persons as to his or their legal rights or remedies in the State of West Virginia; and that the plaintiffs be granted general relief.

Transcripts of the record in each of the proceedings in which the defendant appeared in behalf of the claimants are filed as exhibits with the bill of complaint.

The answer of the defendant admits that he appeared before the State Compensation Commissioner in behalf of the claimants in the proceedings mentioned in the bill of complaint and filed notices of appeal to the Workmen's Compensation Appeal Board in the two instances mentioned in the bill of complaint but denies that he advised any of the claimants represented by him or other persons with respect to their legal rights and remedies. The answer also denies that the defendant has engaged in the practice of law or represented that he was qualified and authorized to practice law within the State of West Virginia and alleges that by virtue of a rule, which permits persons to appear before the commissioner by attorney or agent, promulgated by the State Compensation Commissioner under the statute which confers upon the commissioner the authority to promulgate reasonable rules and regulations, and because he was permitted by the commissioner to appear in such proceedings, he has the right as an agent to represent claimants in proceedings and hearings before the commissioner; that he received no compensation for services performed by him in behalf of claimants; and that such services were incidental to his employment by a local union, Local 89, United Chemical Workers, CIO, of which the claimants whom he represented were members.

The case was heard by the circuit court upon the bill of complaint and exhibits filed with it, the answer of the defendant, a stipulation containing an agreed statement of facts and exhibits filed with it, and the briefs and the oral arguments of counsel for the respective parties.

By final decree entered May 19, 1958, the defendant was permanently enjoined, restrained and inhibited from (a) prosecuting before the State Compensation Commissioner, or his authorized representatives, in behalf of any person or persons, claims for compensation under the Workmen's Compensation Law of this State; (b) appearing in hearings and proceedings before the commissioner, or his authorized representatives, in behalf of such claimants and representing the interests of such person or persons before the commissioner by examining and cross-examining witnesses, offering and introducing evidence, objecting to introduction of evidence and testimony offered by others, and presenting statements and arguments in behalf of such person or persons; (c) advising any person or persons with respect to appeals from the awards and findings of the commissioner to the Workmen's Compensation Appeal Board and preparing and filing in behalf of any other person or persons notices of appeal from the awards, findings and rulings of the commissioner to the appeal board; and (d) engaging in any activity or doing any thing which constitutes the practice of law as defined by this Court in its order entered March 28, 1947, effective May 1, 1947. From that decree this Court granted this appeal and supersedeas...