J. H. Marshall & Associates, Inc. v. Burleson

HOOD, Chief Judge,

Retired (concurring in part and dissenting in part) :

I agree that under the authorities cited the conduct of appellant in bringing and prosecuting this action against appellee constituted the unauthorized practice of law, and that this was available to appellee as a defense to the action against him. But I do not agree that appellee had a right to bring and maintain his counterclaim for an injunction restraining appellant from engaging in the unauthorized practice of law. 1

Assuming, as the court says, that under present rules a defendant has the same freedom of pleading independent claims against a plaintiff as a plaintiff has against a defendant, we must view appel-lee’s counterclaim as a separate and independent claim. So viewed I do not think it can be sustained.

In his counterclaim appellee alleged he is licensed to practice law and has an active law practice, but he made no allegation that appellant’s activities interfered with or adversely affected his practice. He did not, and likely could not, allege that his counterclaim was brought on behalf of the legal profession. What then gives appellee standing to bring and prosecute his counterclaim ?

In Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972), the Supreme Court makes plain that standing to invoke the judicial process, except in cases of specific statutory authorization, depends upon whether the party has a personal stake in the outcome, that economic injury furnishes the foundation for standing to sue, and that a special interest in the outcome is not sufficient. As appellee has alleged no economic injury to himself and apparently relies only on his special interest as an individual member of the bar, I feel he has no standing to bring the counterclaim.

The court’s opinion cites numerous cases where unauthorized practice of law was enjoined, but the actions in those cases were brought by the attorney general of the state or by a bar association or a committee of a bar association having some official or semi-official standing. An example of this type of action is American Automobile Ass’n v. Merrick, 73 App.D.C. 151 , 117 F.2d 23 (1940), where the action was brought by the Committee on the Suppression of Unauthorized Practice of Law of the Bar Association of the District of Columbia. As noted in the concurring opinion, it has been held that a state bar association has standing to maintain such an action, but a single member of the bar has no such standing in the absence of showing specific injury to himself. New Jersey State Bar Ass’n v. Northern New Jersey Mtg. Assoc., 22 N.J. 184 , 123 A.2d 498 (1956). See also Delaware Optometric Corp. v. Sherwood, 36 Del.Ch. 223 , 128 A.2d 812 (1957).

It should be observed that when this action was filed and heard, admission to the bar in the District of Columbia was a function of the United States District Court for the District of Columbia. 2 That *602 court recognized the District of Columbia Bar Association’s Committee on Suppression of Unauthorized Practice as a proper party to seek the enjoining of unauthorized practice. American Automobile Ass’n v. Merrick, supra. As of April 1, 1972, this court was authorized to make rules for examination, qualification and admission to its bar, and members of the bar of this court became eligible to practice in the District of Columbia courts. 3 Under its newly acquired authority this court established a unified bar of the District of Columbia, and, among other things, established a Committee on Unauthorized Practice of Law, and provided that unauthorized practice is “subject to injunctive relief in a proceeding to be commenced by the Committee on Unauthorized Practice.” 4 It appears to me that in this jurisdiction there is a clearly recognized practice that actions to enjoin unauthorized practice of law should be brought by a committee of the bar and not by an individual member of the bar. Leaving aside the question of standing to sue, the established procedure of committee action, after due investigation, leads to a more orderly process than indiscriminate filing of actions by individual lawyers.

Finally, I question the jurisdiction of the trial court to issue the injunction. As before noted, the injunction was issued at a time when control over the practice of law was vested in the United States District Court. While I recognize the authority of the trial court “to maintain its freedom from unauthorized practice of the law,” 5 and its power to punish for contempt one who is guilty of unauthorized practice of law in that court, 6 the court here enjoined many activities outside the court, and this, it seems to me, was an infringement on the prerogative of the District Court at that time to regulate the practice of the law in the District of Columbia.

In my opinion when the court sustained appellee’s defense to appellant’s action, it granted him all the relief to which he was entitled, and the counterclaim should have been dismissed. If so inclined, the trial court could have called upon the appropriate bar committee to investigate appellant’s activities and take such action it deemed best.

For the foregoing reasons I would hold that the injunction was improperly issued.

. I am not referring to that part of the counterclaim which sought $50,000 in damages. That part of the counterclaim does not appear to have been acted upon by the trial court and it plays no part in the present appeal.

. D.C.Code 1967, § 11-2101 et seq.

. D.C.Code 1973, § 11-2501 et seq.

. See our rule 46B.

. In re Brown, 147 U.S.App.D.C. 156, 166 , 454 F.2d 999, 1009 (1971).

. Heiskell v. Mozie, 65 App.D.C. 255 , 82 F.2d 861 (1936).