15th Jud. Dist. Unified Bar Assoc. v. Glasgow

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

FILED

December 10, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

FIFTEENTH JUDICIAL DISTRICT )

UNIFIED BAR ASSOCIATION, )

)

Plaintiff/Appellee, )

) Wilson Chancery

) No. 96302

VS. )

) Appeal No.

) M1996-00020-COA-R3-CV

ANGIE GLASGOW, )

)

Defendant/Appellant. )

APPEAL FROM THE CHANCERY COURT FOR WILSON COUNTY

AT LEBANON, TENNESSEE

THE HONORABLE C.K. SMITH, CHANCELLOR

For the Plaintiff/Appellee: For the Defendant/Appellant:

Robert Evans Lee Henry Clay Barry

Lee & Lee Lebanon, Tennessee

Lebanon, Tennessee

Ruston L. Hill

Nashville, Tennessee

Page 1

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

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OPINION

This appeal involves a local bar association’s efforts to prevent the owner of a

typing service from practicing law without a license. The bar association filed suit in

the Chancery Court for Wilson County seeking to enjoin the owner from preparing

divorce papers and related documents for her clients. The trial court, sitting without

a jury, permanently enjoined the owner from engaging in the unauthorized practice of

law. The owner asserts on this appeal that the bar association lacked standing to

seek an injunction against her and that the statutory prohibition against the

unauthorized practice of law is unconstitutional. We have determined (1) that the bar

association has standing to seek injunctive relief, (2) that the trial court correctly

determined that the owner was engaging in the unauthorized practice of law, and (3)

that the owner has not carried her burden with regard to her constitutional challenges

to the statute of outlawing the unauthorized practice of law. Accordingly, we affirm

the trial court.

I.

Angie Glasgow operates a business in Wilson County called Divorce Typing

Service. Her clientele consists mostly of low-income persons who seek an

uncontested 1irreconcilable differences divorce and who have decided to represent

themselves. The services she provides, for a fee ranging from $99 to $148, 2 consist

of (1) preparing the complaint, the marital dissolution agreement, the final divorce

decree, and other related documents, (2) suggesting where the papers should be

filed, and (3) suggesting “approximately” when the papers should be filed. As a

general matter, Ms. Glasgow leaves it up to her clients to file the papers she

prepares. However, she concedes that she has, on occasion, filed divorce

complaints for her clients.

Ms. Glasgow obtains the information needed to prepare the divorce papers by

requiring her clients to complete a questionnaire. This questionnaire elicits personal

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information about the parties, information about their agreements concerning the

custody and support of the children, and information concerning the division of the

parties’ real and personal property. If the divorce will affect the title to jointly held

real property, the questionnaire permits the parties to request Ms. Glasgow to

prepare the necessary quitclaim deeds. The questionnaire also contains space for

her clients to list “special clauses” they desire to be included in the “divorce

agreement.” In addition to requiring her clients to sign the questionnaire, Ms.

Glasgow requires them to attest that they have received “no legal advice” from her

and that they understand that “there will be no refunds.”

In addition to drafting the documents, Ms. Glasgow contacts various judicial

officers in connection with her business. She testified that she discusses with the

clerk and master’s office in which court the divorce should be filed when one or

both parties do not live in Wilson County. She also testified that she has discussed

with the clerk and master’s office when her clients should file the proposed final

decree. Based on these conversations, she suggests to her clients where the divorce

complaint should be filed and when the final decree should be filed. 3

The Fifteenth Judicial District Unified Bar Association filed suit in the

Chancery Court for Wilson County seeking to enjoin Ms. Glasgow from engaging in

the unauthorized practice of law in violation of Tenn. Code Ann. § 23-3-103 (Supp.

1999). Ms. Glasgow moved to dismiss the complaint because the unincorporated

bar association lacked standing to sue. The trial court overruled Ms. Glasgow’s

motion and, following a bench trial, determined that she was practicing law without a

license. Accordingly, the trial court enjoined Ms. Glasgow from engaging in the

unauthorized practice of law.

II.

The Bar Association’s Standing

Ms. Glasgow asserts that the bar association does not have standing to seek

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to enjoin her from the unauthorized practice of law because it is unincorporated.

Without citation to Tennessee authority, she claims that the bar association cannot

bring suit in its own name because there is no statutory authority permitting it to do

so. This argument overlooks the decisions recognizing that unincorporated

associations may have standing to sue on behalf of their members.

The standing doctrine provides courts with a vehicle for determining whether a

particular party is entitled to judicial relief. See Knierim v. Leatherwood, 542

S.W.2d 806, 808 (Tenn. 1976). A standing inquiry requires the court to determine

whether the party seeking relief has a sufficient stake in the outcome of the

controversy to warrant the exercise of the court’s authority on its behalf. See

Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov’t, 842 S.W.2d

611, 615 (Tenn. Ct. App. 1992); Browning-Ferris Indus., Inc. v. City of Oak Ridge,

644 S.W.2d 400, 402 (Tenn. Ct. App. 1982).

The primary focus of a standing inquiry is on the party seeking relief, not the

merits of the party’s claim. Accordingly, a party’s standing does not hinge on the

likelihood that it will succeed on the merits of its claim. See Metropolitan Air

Research Testing Auth., Inc. v. Metropolitan Gov’t, 842 S.W.2d at 615. However,

a party’s standing may stand or fall on the nature of its claims. See Allen v. Wright,

468 U.S. 737, 752, 104 S. Ct. 3315, 3325 (1984). Thus, when the claimed injury

involves a statutory violation, the court must determine whether the entity seeking

judicial relief fits within the classification of persons the statute was intended to

protect. See Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 2206 (1975);

Metropolitan Air Research Testing Auth., Inc. v. Metropolitan Gov’t, 842 S.W.2d

at 615.

The fact that an association is unincorporated does not undermine its ability to

seek judicial relief on behalf of its members. Tennessee courts have accorded

standing to unincorporated associations in at least two reported cases. See Barnes

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v. Fort, 181 Tenn. 522, 530, 181 S.W.2d 881, 884 (1944); Curve Elementary Sch.

Parent & Teacher’s Org. v. Lauderdale County Sch. Bd., 608 S.W.2d 855, 858

(Tenn. Ct. App. 1980). In the latter case, this court recognized that an association

had standing to sue in its own name on behalf of its members when: (1) its members

would otherwise have standing to sue in their own right, (2) the interests the

association seeks to protect are germane to its purpose, and (3) neither the claim

asserted nor the relief requested requires the participation of individual members in

the lawsuit. See Curve Elementary Sch. Parent & Teacher’s Org. v. Lauderdale

County Sch. Bd., 608 S.W.2d at 858.

The bar association in this case meets all three preconditions to standing.

First, its individual members, the licensed lawyers practicing in the Fifteenth Judicial

District, have standing on their own to enjoin Ms. Glasgow from practicing law

without a license. In addition to their potential loss of business, these lawyers have

palpable interest in the public’s perception of the legal profession and the quality of

justice in the courts of the Fifteenth Judicial District. Persons engaging in the

unauthorized practice of law threaten the quality of justice in the Fifteenth Judicial

District. When the quality of the practice of law is threatened, all members of the

profession are aggrieved. Second, the interests the bar association seeks to protect

are germane to the association’s purpose. Finally, there is no need for the individual

association members to be personally involved in this suit. The injury caused by

Ms. Glasgow’s unauthorized practice of law is to the public and the legal profession

as a whole. Even though her business reflects on the members of the bar as a whole,

no single member is seeking damages for loss of business opportunities or any other

recovery.

III.

Ms. Glasgow’s Activities

An increasing number of persons are undertaking to represent themselves in

legal proceedings in which their personal and property rights are at stake. This case

does not provide the occasion to analyze the reasons for this phenomenon or the

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advisability of participating in judicial proceedings without the assistance of counsel.

It does, however, require us to join the ranks of courts that have been called upon

to consider whether various sorts of out-of-court lay assistance to individuals

engaged in self-representation amounts to the unauthorized practice of law.

Cases involving the unauthorized practice of law are heavily fact-dependent.

They require the courts to focus specifically on the conduct of the person alleged to

be practicing law without a license. It is not our task as an intermediate appellate

court to announce broad rules concerning the types of assistance pro se litigants

may obtain from non-lawyers. 4 We leave that responsibility to the Tennessee

Supreme Court because it alone has the power to regulate the practice of law in

Tennessee. See In re Petition of Burson, 909 S.W.2d 768, 773-74 (Tenn. 1995).

Our role is to carefully analyze Ms. Glasgow’s conduct in light of the commonly

accepted understanding of what the practice of law entails and then to determine

whether her conduct amounts to the practice of law.

The definition of “[l]aw business” in Tenn. Code Ann. § 23-3-101(1) (Supp.

1999) includes “the drawing or the procuring of or assisting in the drawing for a

valuable consideration of any paper, document or instrument affecting or relating to

secular rights . . ..” Likewise, the definition of “[p]ractice of law” in Tenn. Code

Ann. § 23-3-101(2) includes “the drawing of papers, pleadings or documents . . . in

connection with proceedings pending or prospective before any court . . ..” Both of

these statutory definitions must be read in conjunction with Tenn. S. Ct. R. 8, EC

3-5. 5 Thus, the acts included in Tenn. Code Ann. § 23-3-101 constitute the

unauthorized practice of law if performed by a non-lawyer only when performing

those acts requires the professional judgment of a lawyer. See In re Petition of

Burson, 909 S.W.2d at 776.

The Tennessee Supreme Court has held that the “preparation and filing of a

complaint” is the practice of law because it requires the professional judgment of a

lawyer. See Old Hickory Eng’g & Mach. Co. v. Henry, 937 S.W.2d 782, 786

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(Tenn. 1996). We do not construe the Court’s use of the conjunction “and” in the

phrase “preparation and filing” to mean that persons who prepare complaints but do

not file them are not engaging in the practice of law. The preparation of the

complaint is precisely the work that requires a lawyer’s professional judgment.

Accordingly, we conclude that with its decision in Old Hickory Eng’g & Mach. Co.

v. Henry, the Court has aligned Tennessee with the majority of jurisdictions holding

that the drafting of pleadings and legal documents or the selection and completion of

form documents constitutes the practice of law.6

Ms. Glasgow, by her own admission, is performing more than mere clerical

work for her clients. She is not simply reducing her clients’ words to writing or

filling in blanks on pre-printed forms at the specific direction of her clients. Rather,

she is preparing legal documents that require more legal knowledge than is

possessed by ordinary lay persons. She is eliciting information from her clients and

then incorporating the information into unique legal documents that she creates.

These documents, which include divorce complaints, marital dissolution agreements,

final divorce decrees, and quitclaim deeds, will potentially have significant,

far-reaching effects not only on her clients, but also on the members of her clients’

families. Thus, Ms. Glasgow, merely by creating the complaints and other

documents to be filed in court, is engaging in the unauthorized practice of law.

Despite Ms. Glasgow’s protestations to the contrary, we conclude that she

has also been providing other assistance to her clients that constitutes the

unauthorized practice of law. She has been advising her clients concerning how and

when to file the papers she prepares, 7 and she has been obtaining this information

from the clerk’s office on her clients’ behalf. Thus, Ms. Glasgow has been engaging

in the unauthorized practice of law when she selects the court in which a complaint

should be filed and suggests when her clients should file the complaint. Similarly,

she is engaging in the unauthorized practice of law when she suggests that her clients

file the draft final decree five days before the end of the statutory waiting period.

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Ms. Glasgow’s own description of the services she provides to her clients

provides ample evidentiary support for the trial court’s conclusion that she is

engaging in the unauthorized practice of law in at least two ways – drafting divorce

complaints and associated court papers and quitclaim deeds and advising her clients

concerning where and when to file the papers she prepares for them. Accordingly,

we affirm both the trial court’s conclusion that Ms. Glasgow is engaging in the

unauthorized practice of law and the order enjoining her from continuing to engage in

the unauthorized practice of law.

IV.

The Constitutionality of the Definition of “Practice of Law”

As a final matter, Ms. Glasgow launches a broadside attack on the

constitutionality of Tenn. Code Ann. § 23-3-103. She asserts that this statutory

prohibition against engaging in the unauthorized practice of law is unconstitutional

because (1) it amounts to a prior restraint on her freedom of expression, (2) it is

overly broad, and (3) it infringes on the right of the general public to represent

themselves in judicial proceedings. We find these constitutional arguments to be

procedurally defective.

Constitutional challenges to legislative acts are serious matters, not

make-weight arguments. Their importance is reflected in the elaborate rules and

procedures governing how these issues must be raised. Tenn. Code Ann. §

29-14-107(b) (1980) and Tenn. R. Civ. P. 24.04 require parties to serve or notify the

Attorney General and Reporter that they are challenging the constitutionality of a

statute, and Tenn. R. App. P. 32 ensures that the Attorney General and Reporter will

receive notice when the constitutionality of a statute is challenged on appeal. These

procedural requirements serve two purposes: first, to assure the existence of a

genuine case or controversy, and second, to assure that the challenged statute will be

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vigorously defended.

The importance of constitutional litigation is also reflected in the substantive

rules employed by courts to adjudicate constitutional issues. Courts presume that

the challenged statute is constitutional, see Riggs v. Burson, 941 S.W.2d 44, 51

(Tenn. 1997); In re Petition of Burson, 909 S.W.2d at 775, and, when possible, to

construe statutes in a way that renders them constitutional rather than

unconstitutional. See Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520,

529-30 (Tenn. 1993). In addition, the burden of rebutting the presumption of

constitutionality is on the person challenging the statute. See Helms v. Tennessee

Dep’t of Safety, 987 S.W.2d 545, 549 (Tenn. 1999); State v. Blanton, 975 S.W.2d

269, 286 (Tenn. 1998). To carry this burden with regard to a statute enacted

pursuant to the State’s police power, the person challenging the statute must

demonstrate that it is not reasonably related to a legitimate state interest or that it is

oppressive. See Fritts v. Wallace, 723 S.W.2d 948, 949-50 (Tenn. 1987).

In addition to the requirements specifically applicable to constitutional issues,

persons seeking to challenge the constitutionality of a statute on appeal must observe

the more generally applicable requirements for presenting issues to an appellate court

for decision. At a bare minimum, their briefs must meet the requirements of Tenn.

R. App. P. 27 and Tenn. Ct. App. R. 6. They must also provide the court with

arguments and authorities supporting their assertion that the challenged statute is

unconstitutional. Appellate courts, in their discretion, may decline to consider

arguments that do not meet these requirements. See Hunter v. Burke, 958 S.W.2d

751, 756 (Tenn. Ct. App. 1997) (issue not adequately briefed); Wilhite v.

Brownsville Concrete Co., 798 S.W.2d 772, 775 (Tenn. Ct. App. 1990) (no legal

arguments and no supporting authorities); State ex rel. Dep’t of Transp. v. Harvey,

680 S.W.2d 792, 794-95 (Tenn. Ct. App. 1984) (no supporting authority); Lowe v.

Preferred Truck Leasing, Inc., 528 S.W.2d 38, 41 (Tenn. Ct. App. 1975) (no

supporting authority).

Ms. Glasgow’s constitutional arguments do not meet any of these

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requirements. The record contains no indication that she ever notified the Attorney

General and Reporter of her challenge to the constitutionality of Tenn. Code Ann. §

23-3-103 as required by Tenn. Code Ann. § 29-14-107(b) and Tenn. R. Civ. P.

24.04. There is likewise no indication that she complied with Tenn. R. App. P. 32

by notifying the Attorney General that she intended to challenge the constitutionality

of Tenn. Code Ann. § 23-3-103 on appeal. In addition, the arguments in her brief

are superficial at best. They consist of two pages of general, conclusory statements

with no citations to legal authority to support her arguments.

The practice of law by untrained persons endangers the public’s personal and

property rights, as well as the orderly administration of the judicial system. See Bar

Ass’n of Tennessee, Inc. v. Union Planters Title Guar. Co., 46 Tenn. App. 100,

125-26, 326 S.W.2d 767, 779 (1959). Thus, the purpose of the statutory prohibition

against the unauthorized practice of law protects the public by ensuring that the

public receives high quality legal services. See In re Petition of Burson, 909 S.W.2d

at 776-77; Haverty Furniture Co. v. Foust, 174 Tenn. 203, 210, 124 S.W.2d 694,

697 (1939). In light of the salutary purpose of Tenn. Code Ann. § 23-3-103 and the

inadequacy of Ms. Glasgow’s arguments, we have determined that Ms. Glasgow has

failed to carry her burden of overcoming the presumption of the constitutionality of

Tenn. Code Ann. § 23-3-103.

V.

We affirm the judgment and remand the case to the trial court for whatever

further proceedings may be required. We tax the costs of this appeal to Angie

Glasgow.

____________________________

WILLIAM C. KOCH, JR., JUDGE

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CONCUR:

________________________________

SAMUEL L. LEWIS, JUDGE

________________________________

BEN H. CANTRELL, JUDGE

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