Pretending to be a Lawyer or Acting Like You are One is Wrongful
In April 2017, the Wando River Grill (Restaurant) became dissatisfied with the service of its linen supplier (Cintas) and Cintas’ ability to supply the type of linens Restaurant needed. Restaurant contacted another supplier to secure some or all of its required linens and notified Cintas of its need to suspend at least a portion of Cintas’ services. Cintas claimed Restaurant’s suspension of service constituted a breach of the parties’ contract, invoked a liquidated damages provision in the contract, sought more than $8,000 in damages, and hired Murkin to collect the outstanding debt. Petitioner, a South Carolina attorney, represented Restaurant in the resulting dispute.
In Ex Parte: Edward J. Westbrook, Petitioner: In Re: The Murkin Group, LLC, Appellate Case No. 2018-002263, Opinion No. 27957, State Of South Carolina In The Supreme Court (March 18, 2020) the Supreme Court of South Carolina exercised its original jurisdiction to determine whether the Murkin Group, LLC (Murkin) a collection agency, engaged in the unauthorized practice of law (UPL).
In April 2018, Murkin sent a demand-for-payment letter to Restaurant demanding $8,106.43. Email communications followed between Murkin and Restaurant regarding Restaurant’s issues with Cintas’ past performance of the parties’ contract and possible reinstatement of the contract, and Cintas’ provision of linens. Murkin claimed Cintas would waive its damages claim if Restaurant paid a “one-time processing fee for the reinstatement” of services and signed certain “documentation that [Restaurant] need[ed]” to sign to reinstate Cintas’ service. Murkin prepared and sent a reinstatement agreement to Restaurant with signature lines for Restaurant and “The Murkin Group, on behalf of Cintas Corporation – Charleston, SC.”
Because the Murkin-prepared reinstatement agreement materially altered the terms of the parties’ original contract and imposed new obligations on Restaurant and because the agreement’s terms were contrary to discussions Cintas personnel had directly with Restaurant, Restaurant sent the proposed reinstatement agreement to Petitioner, its lawyer. Restaurant’s manager also informed Murkin he was attempting to continue a dialogue with Cintas to resume Cintas’ linen service, but Cintas personnel refused to respond. Murkin informed Restaurant’s manager all communications were to be handled through Murkin.
After learning of Murkin’s response Petitioner requested Murkin have its South Carolina counsel contact him directly. Restaurant did not sign the reinstatement agreement, and no South Carolina counsel for Murkin or Cintas contacted Petitioner.
In response to Restaurant’s refusal to sign, a Murkin representative stated that, if Murkin did not hear back from Petitioner, Murkin would assume Restaurant was not willing to resolve the balance, and the representative would “make . . . specific recommendations on how I feel Cintas should proceed.”
In November 2018, Petitioner emailed Murkin asking for the South Carolina Bar numbers of several Murkin employees “if they are members of the Bar.” The Murkin representative responded stating Petitioner’s desire to deal with Murkin’s local counsel “means nothing, since that is a decision made between our client and our office.” The representative further claimed authority to bind any attorney to whom Murkin referred the matter.
Petitioner filed a petition seeking the Supreme Court’s review because Petitioner became aware of conduct that might constitute UPL. The Supreme Court referred the matter to the Honorable Kristi F. Curtis as special referee to take evidence and issue a report containing proposed findings of fact and recommendations of law. After careful consideration of the briefs and oral argument in this case, the Supreme Court adopted Judge Curtis’ recommendations and findings.
Judge Curtis found Murkin went beyond the mere collection of a debt and crossed into UPL by:
- becoming involved in negotiating a contract dispute between Cintas and Restaurant and interposing itself between the parties for the purpose of negotiating a settlement on behalf of Cintas;
- purporting to advise Cintas as to what legal action it should take;
- indicating to Restaurant that it would advise Cintas as to whether to accept a settlement offer;
- purporting to control whether and when the case would be referred to an attorney;
- purporting to control the actions of the attorney and claiming it could direct the attorney not to settle the claim or make payment arrangements with Restaurant;
- threatening to file suit and making specific claims about what types of damages would be recoverable in the lawsuit; and
- giving legal opinions and interpreting the terms of the contract between Restaurant and Cintas.
Pursuant to the South Carolina Constitution, the Supreme Court has the duty to regulate the practice of law in South Carolina. S.C. Const. art. V, § 4; In re Unauthorized Practice of Law Rules, 309 S.C. at 305, 422 S.E.2d at 124; see also S.C. Code Ann. § 40-5-10 (2011) (stating the Supreme Court has inherent power with respect to regulating the practice of law). The Court’s duty to regulate the practice of law and the legal profession is to protect the public from the potentially severe economic and emotional consequences which may flow from the erroneous preparation of legal documents or the inaccurate legal advice given by persons untrained in the law.
Thie practice of law is not confined to litigation, but encompasses activities and actions in other areas that entail specialized legal knowledge and ability. It is neither practicable nor wise to attempt a comprehensive definition of what constitutes the practice of law but, instead, to decide what is and what is not the unauthorized practice of law in the context of an actual case or controversy.
In the instant case, Murkin engaged in UPL when it interpreted Cintas’ service contract with Restaurant, gave legal opinions as to what damages were recoverable under the Cintas-Restaurant contract, sought to negotiate the contract dispute between Cintas and Restaurant, and purported to advise Cintas on whether to accept a settlement offer and to negotiate the amount of settlement.
Murkin engaged in UPL when it purported to advise Cintas when to file suit, gave legal opinions on what types of damages would be sought, and purported to control the actions of the attorney and to direct the attorney not to settle the case or accept payment arrangements.
Finally, while Murkin characterizes its action as “debt collection,” the Supreme Court agreed with Judge Curtis’ conclusion that the true nature of the underlying matter is a contract dispute.
Restaurant terminated the service contract with Cintas prior to its expiration and, while the contract contained a liquidated damages clause, these alleged damages were not an admitted debt but a contract dispute. All of the actions constituted the unauthorized practice of law.
Murkin’s actions constituted UPL and the court enjoined Murkin from engaging in any further such conduct.
It took me a long time, much study, working full time and going to law school at night to become a lawyer licensed to represent parties. When a person, claiming to be a collection agency, acts as if its employees are giving legal advice it defeats the purpose of licensing lawyers. The injunction was appropriate and the Restaurant may have a case against Murkin for damages and the expenses incurred to retain a lawyer and bring a declaratory relief action in the Supreme Court.
© 2020 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.