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Preston v. University of Arkansas for Medical Sciences11/6/2003
utes. They point out that the plaintiffs in Davenport lacked standing to file a wrongful-death action, because they were not personal representatives and did not make up all statutory beneficiaries joined as parties to the suit, as the statute required. The Prestons assert that they, as individuals, should not be seen as being engaged in the unauthorized practice of law, forever barring them from pursuing their cause of action.
The Prestons further urge that the present cause of action should be allowed to go forward even if this court determines that their attorneys were engaged in the unauthorized practice of law. They underscore that Arkansas has other methods of dealing with the unauthorized practice of law, as set forth in Davenport v. Lee, supra, such as dismissal, reversal of a judgment in the cause, and disregarding the actions taken by the unauthorized practitioner. They further maintain that they should be allowed to pursue their complaint regardless of who the attorneys are and even if they did not have counsel at all. Finally, they claim that their attorneys have previously been allowed to practice before various state courts in Arkansas and that, accordingly, they have the right to bring their cause of action.When we review an order granting a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See Davenport v. Lee, supra; Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Davenport v. Lee, supra; Goff v. Harold Ives Trucking Co., supra.
This point clearly turns on whether the Prestons' Oklahoma attorneys were engaged in the unauthorized practice of law in Arkansas. The Oklahoma counsel unquestionably were practicing law in Arkansas, because they filed a complaint on behalf of the Prestons in an Arkansas court. See Davenport v. Lee, supra; Arkansas Bar Assn. v. Union National Bank of Little Rock, 224 Ark. 48, 273 S.W.2d 408 (1954). The real question for this court to resolve is whether that legal practice was authorized under Arkansas law. In the past, we have emphasized the importance of being authorized to practice law in this state by noting:
It seems well settled that unauthorized practice of law, at least by court appearances, is an unlawful intrusion and usurpation of the function of an officer of the court, and constitutes a contempt of any court in which or under whose authority or sanction the unauthorized person pretends to act.
McKenzie v. Burris, 255 Ark. 330, 334-35, 500 S.W.2d 357, 361 (1973).
Admission to the bar of Arkansas and the practice of law in this state are governed by Ark. Code Ann. §§ 16-22-201 through 16-22-213 (Repl. 1999). Section 16-22-206 states: "No person shall be licensed or permitted to practice law in any of the courts of record of this state until he has been admitted to practice by the Supreme Court of this state, and every person so admitted shall be entitled to practice in all the courts of this state." Ark. Code Ann. § 16-22-206 (Repl. 1999). Section 16-22-209 reads: "Every person who shall attempt to practice law in any court of record without being licensed, sworn, and registered, as required in this subchapter, shall be deemed guilty of a contempt of court and shall be punished as in other cases of contempt." Ark. Code Ann. § 16-22-209 (Repl. 1999).
In Abel v. Kowalski, 323 Ark. 201, 913 S.W.2d 788 (1996) (per curiam), this court held that an unlicensed attorney may not practice law in Ark
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