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Saturday, June 20, 2009

Ind. Decisions - What Constitutes "Practicing Law"?

The Supreme Court on June 19th* posted a disciplinary order file-stamped and signed April 30th: In the Matter of Douglas W. Patterson. The Court fines Patterson $500 for practicing law after he was suspended for three years from such practice. From the opinion:

This Court has not attempted to provide a comprehensive definition of what constitutes the practice of law, see Miller v. Vance, 463 N.E.2d 250, 251 (Ind. 1984), but it is clear the core element of practicing law is the giving of legal advice to a client. See State ex rel. Indiana State Bar Ass'n v. Northouse, 848 N.E.2d 668, 672 (Ind. 2006); State ex rel. Disciplinary Comm'n v. Owen, 486 N.E.2d 1012, 1013 (Ind. 1986). The practice of law includes making it one's business to act for others in legal formalities, negotiations, or proceedings. See Matter of Mittower, 693 N.E.2d 555, 558 (Ind. 1998). In Miller v. Vance, this Court concluded that lay employees of banks were not engaged in the practice of law when performing the routine service of filling in information on standard real estate mortgage forms. See 463 N.E.2d at 252. The Court, however, cautioned that a non-attorney "may not give advice or opinions as to the legal effects of the instruments he prepares or the legal rights of the parties." Id. at 253.

At least some of the activities Respondent admits he undertook during his suspension constitute the practice of law. The Proposal was not a routine transaction. Respondent's reviewing the Proposal to ensure accuracy with respect to the Owners' exemption rights, ensuring the Proposal's description of the bankruptcy process was accurate, and advising the Owners that the Proposal offered unsecured creditors more than they would receive if the Owners filed for bankruptcy require detailed knowledge of state exemption law and federal bankruptcy law. Thus, these actions constitute the practice of law under the circumstances of this case.

* The Court appears to have had some "glitch" in posting recent Orders to the website. This follows on a glitch about this same time last year in transmitting cases to the COA judges after being fully briefed.

Posted by Marcia Oddi on June 20, 2009 08:38 AM
Posted to Ind. Sup.Ct. Decisions