Editor's Note: See M.R.P.C. 5.4, 5.5, 8.4.
AIDING THE UNAUTHORIZED PRACTICE OF LAW- A lawyer shall not aid a non-lawyer in the unauthorized practice of law.
The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the following situation:
Lawyer A represents a client with regard to the company's collections in Justice of the Peace Court. Lawyer A is paid a monthly retainer for this work. When the loan company desires to file suit in the Justice of the Peace Court, the loan company employee types up a "fill-in-the-blanks" declaration and files it in the Justice of the Peace Court. Lawyer A's name appears on the declaration as the attorney for the Plaintiff Loan Company. However, Lawyer A does not sign the declaration; did not see the declaration before it was filed; and is not aware that the specific declaration is being filed. The declaration requests an award of attorney's fees as provided for in the note. If the defendant does not appear, default judgment is taken for the amount of the note sued for, plus attorney's fee, and lawyer A will never be aware that the suit is filed. The attorney's fee will be paid to the Loan Company. If the defendant contests the action, then the Loan Company will notify Lawyer A and Lawyer A will handle the case from that point on. All attorney's fees obtained through these suits are paid to the Loan Company. Lawyer A is paid only his regular monthly retainer.
It is the opinion of the Ethics Committee that such activity would constitute unauthorized practice of law, and would therefore be improper and violative of Canon 3, Disciplinary Rule 3-101(A)). Code of Professional Responsibility.
Ethical Consideration 3-5 of the Code of Professional Responsibility addresses itself to this situation:
It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, non-lawyers, such as Court Clerks, Police Officers, Abstractors, and many Governmental employees may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional judgment is required.
Finally, Note I, of the Disciplinary Rule of Canon 3, provides as follows:
"The condemnation of the unauthorized practice of law is designated to protect the public from legal services by persons unskilled in the law. The prohibition of lay intermediaries is intended to insure the loyalty of the lawyer to the client unimpaired by intervening and possibly conflicting interest."