Thursday, April 22, 2010

Montana Unauthorized Practice Commission Dissolved

The Supreme Court of Montana has responded to a petition by its Commission on the Unauthorized Practice of Law by entering an opinion and order dissolving the commission effective April 20, 2010. The original petition had proposed rule changes that were submitted for public comment. The court noted that an array of persons and organizations had filed "voluminous, thoughtful comments...Indeed, we cannot recall a matter on which there has been more comment by members of the public on a matter before [the court]."

The committee had responded to the comments by filing a motion to dissolve under an agreement that has complaints of unauthorized practice handled by the state Attorney General's Office of Consumer Protection. Lawyers who are licensed elsewhere will be referred to the Office of Disciplinary Counsel by the Attorney General.

The court concluded (contrary, I believe, to the holdings of many state high courts) that it lacks the authority to regulate or even define the unauthorized practice of law. Further, the parameters of unauthorized practice are not clearly defined ("...we are mindful of the movement towards nationalization and globalization of the practice of law, and with the actions taken  by federal authorities against state attempts to localize, monopolize, regulate, or restrict the interstate or international provision of legal services.").

The court commended the commission  for it's "excellent, and often frustrating, work..." along with the State Bar and Attorney General for establishing a "better way for handling complaints of unauthorized practice."

(Mike Frisch)

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Comments

I agree that this is a rare position. If not the court to define the practice of law (at the least in the absence of legislation), then who? And my understanding is that several state courts do not even allow the legislature to do it, assuming exclusive power under "inherent power." Anyway, interesting post, Mike.

Posted by: Alan Childress | Apr 22, 2010 2:53:15 PM

Remember, we're talking about judges here. A band of black-robed Ba'athists, who have arrogated absolute despotic power unto themselves. You know the rule: "Boni judicis est ampliare jurisdictionem." That any state judge would actually follow a literal reading of a constitution is as remarkable as it is rare.

Where else but in America will you see the spectacle of a judge deciding an appeal in which she is a defendant in tort, the case belongs in another court, and more than a dozen non-conflicted judges are available and authorized by statute to hear it? That was too much, even for Micronesia.

Posted by: Bouldergeist | Apr 23, 2010 5:44:27 AM

Where else but in America would you witness the spectacle of a judge deciding an case wherein she was a defendant in tort, and other judges were available and authorized by statute to hear it, Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005) (per curiam), cert. denied [no cite available]; cf., Caperton v. A. T. Massey Coal Co., No. 08-22 (U.S. Jun. 9, 2009) (Theodore Olson, as plaintiff’s counsel; in this Third World judicial system, you get a different result when you can afford an attorney), and where else would you find any reviewing court giving a juridicial abortion like that sanction, but in the Tent Circus? Smith v. Bender, No. 09-1003 (10th Cir. Sept. 11, 2009) (unpublished), appeal docketed (U.S. 2010). That was too much, even for Micronesia. Ruben v. Petewon, 14 FSM Intrm. 146 (Chk. S. Ct. App. 2006) (Micronesia). To call ours a Third World judicial system is an unwarranted insult to Third World countries, many of which are actually TRYING to implement the rule of law.

That a band of judges should actually restrain themselves, coloring inside the lines of their constitutional role, is as remarkable as it is rare.

Posted by: Bouldergeist | Apr 23, 2010 6:02:27 AM

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