Petition To South Carolina Supreme Court Charges Righthaven With Unauthorized Practice Of Law

from the gift-that-keeps-on-giving dept

We just wrote about the effort by one of the people sued by Righthaven to file a massive response with counterclaims. One of those claims was that Righthaven was involved in the unauthorized practice of law in South Carolina. Now, the very same legal team has petitioned the South Carolina State Supreme Court -- which has specifically asked people to petition it on the unauthorized practice of law -- in order to get a declaratory judgment on the issue. The claims in this petition match, pretty much exactly, the claim in the original response lawsuit (with some more detail), but taking it straight to the state Supreme Court is definitely an interesting move.

To be honest, I've always found statutes or rules against "the unauthorized practice of law" to be a bit questionable in general. People should be able to avail themselves of the legal system without a lawyer, if they so choose (even if it's not very smart), and requiring one to become "licensed" has always struck me as much more of a method of limiting supply (and increasing costs), rather than any real attempt to maintain quality. That said, the unauthorized practice of law, remains against the law, and it appears that Righthaven may have to defend itself on this one.

The filing does list out some interesting cases, basically state by state by state by state, that highlight "sham" assignments for the sake of lawsuits, and compares them all to Righthaven... and then notes that Righthaven is worse than almost all of those other cases:
Righthaven is far worse than the debt collectors referenced in the cases cited above. In every single one of those cases, the debt collector at least tried to collect the debt prior to litigation.... But with Righthaven, its first and only act in the collection of alleged debts is to prosecute a lawsuit. That is all Righthaven does and all it ever did. Righthaven is not a debt collector who unintentionally ran afoul of the law of unauthorized practice, Righthaven is an entity set up ab initio for the express purpose of committing the unauthorized practice of law.
Clearly, it seems the lawyers are hoping for a sympathetic ruling here in the South Carolina Supreme Court, which will, in turn, help even further the claims in the original case, that this whole thing is really racketeering. I still think that claim is a long shot, but if this petition actually goes forward, Righthaven may be in a lot more trouble than it had ever imagined.

As with the response in the lawsuit, this petition has some amusing moments. My favorite, concerning Righthaven's continued (and continuing) efforts to rewrite its agreement with Stephens Media to get just enough control to be allowed to sue, the filing mocks the repeated attempts by Righthaven to find the magic words, and says:
It's a wonder Righthaven's pleadings don't end with 'arbracadabra.'
It also later claims: "Righthaven and the truth are not well acquainted." It's always fun when you find a lawyer who's willing to go out on a limb a bit with some humor in these filings, though, certainly, some courts have problems with such cheeky attitudes. Either way, if these lawsuits do well, Righthaven may be in a lot more trouble than people already think it's in.


Reader Comments (rss)

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    identicon
    Anonymous Coward, Jun 28th, 2011 @ 12:33pm

    The laywer appears to have crossed the line from a filing to rather personal attacks that cannot be supported. It's the type of thing the courts frown upon, in part because they often spaw retribution lawsuits, which wastes more of the courts time beyond this initial frivolous filing.

     

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    Anonymous Coward, Jun 28th, 2011 @ 12:34pm

    HA

     

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    out_of_the_blue, Jun 28th, 2011 @ 12:36pm

    IF not so timid, your second paragraph could redeem you.

    But half measures and faintness don't work against the truly evil, so you fail.

    As Shakespeare said, "First, kill all the lawyers."

     

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    Anonymous Poster, Jun 28th, 2011 @ 12:44pm

    See, the Green Lanterns had the right idea -- make the lawyer suffer the same fate as their client.

     

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    Overcast (profile), Jun 28th, 2011 @ 1:41pm

    To be honest, I've always found statutes or rules against "the unauthorized practice of law" to be a bit questionable in general. People should be able to avail themselves of the legal system without a lawyer, if they so choose (even if it's not very smart), and requiring one to become "licensed" has always struck me as much more of a method of limiting supply (and increasing costs), rather than any real attempt to maintain quality. That said, the unauthorized practice of law, remains against the law, and it appears that Righthaven may have to defend itself on this one.

    Seriously - although I DO understand a law to protect the average person from hiring someone who only claims to be a lawyer with no backing.

    But by and large it's a scam for the trail lawyers. It would be somewhat like a law saying you can't work on a car unless you are ASE certified.

    No doubt that will come soon in this corrupted nation.

     

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      Hephaestus (profile), Jun 28th, 2011 @ 2:08pm

      Re:

      "trail lawyers"

      Those aren't those the guys that come after you in public parks for walking on the grass.

       

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        Anonymous Coward, Jun 28th, 2011 @ 2:35pm

        Re: Re: "trail lawyer"

        Funny ...
        If you do a Google search for "trail lawyer", you get over 34,200 results.
        Them thar trails need lotsa lawyerin'!

         

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      Hephaestus (profile), Jun 28th, 2011 @ 2:33pm

      Re: correction .... need an edit button

      "trail lawyers"

      Aren't those the guys that come after you in public parks for walking on the grass.

       

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      anymouse (profile), Jun 28th, 2011 @ 4:54pm

      Re:

      No law required....

      They only sell the 'tools' that allow working on the vehicles to the 'approved' shops, those who try to work on vehicles they don't have the 'authorized tools' to access are sued with DCMA violations for 'reading' the trouble codes out of the vehicles...

       

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      Paul Keating, Jun 30th, 2011 @ 12:07am

      Re: Unauthorized Practice of Law

      The rules do not prevent you from representing yourself. The rules only prevent you from representing someone else if you are not a licensed attorney. For corporations, because they are treated as "persons" under the law, they are in a unique situation of not being able to represent themselves (other than in small claims court) and generally must hire licensed counsel. The attorney can be an employee or from an independent firm - but they must be licensed.

      The license applies on a per/state basis. A license to practice in CA gives me no rights to advise anyone as to the laws of another state.

      In a trial context, most courts allow a "foreign" licensed attorney to appear and argue before the court and even conduct trials. However, they in most cases must apply for permission and have a local attorney sponsor their application. The permission applies for that particular trial.

      Federal courts are slightly different as every attorney licensed in a state is permitted to appear in federal court regardless of where it is located. You must only apply. The permission is limited to the practice of federal matters before the court but not matters of state law claims. In Righthaven's situation, as long as the issue was only federal copyright (no state law claims), then provided the attorney was licensed in Nevada and had applied to be admitted by the federal court, I (unfortunately) doubt there would be a basis for complaining here. It is a bit of splitting hairs. For example, the same Nevada attorney could not argue or advise as to the underlying copyright "assignment" contract if that contract specified that a some state law other than Nevada state law applied to the contract.

      "But by and large it's a scam for the trail lawyers. It would be somewhat like a law saying you can't work on a car unless you are ASE certified. "

      You can work on your car all you want. Just don't work on mine.

      And, no I do not favor RH here. I was an early poster suggesting that RICO claims be brought by all those who may have paid to settle.

       

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    Anonymous Coward, Jun 28th, 2011 @ 2:43pm

    Mike, you are confusing two issues with the unauthorized practice of law.
    Any natural person has the right to represent him or herself in a court of law, for all purposes, with limited exceptions. (businesses are not a natural person, and do not have the right of going "pro se." The supreme courts of the US and many states require a person to have certain qualifications, inlcuding experience, to practice in front of that court)
    If the person can show that they are competent, that person may represent themselves completely, or can request, or the court can order "stand by counsel." "Stand by counsel" is a licenced attorney who will answer questions of law and procedure for the person representing himself.

    A business can not represent itself, because any owners and investors have the right to expect a licensed qualified representitive represent their interests.

    Yes, the licensure of attorneys is monopolistic and protectionist for law schools and all current attorneys. However, the same argument could be made for electricians, and many other service providers.

     

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    btr1701 (profile), Jun 29th, 2011 @ 4:06pm

    Unauthorized Practice

    > I've always found statutes or rules against
    > "the unauthorized practice of law" to be a
    > bit questionable in general. People should
    > be able to avail themselves of the legal
    > system without a lawyer, if they so choose
    > (even if it's not very smart), and requiring
    > one to become "licensed"

    This isn't quite accurate. People *do* have the right to file lasuits and represent themselves in court in both civil and criminal trials. It's called appearing pro se.

    What you can't do, and to which the unauthorized practice of law refers, is represent *other* people as an attorney without being licensed to practice in that jurisdiction.

     

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      dwg, Jun 29th, 2011 @ 4:22pm

      Re: Unauthorized Practice

      There's a whole lot more you can't do. If you stick to the letter of the (unauthorized practice of) the law, you can't, for example, tell someone whether he needs to use copyright or trademark law to protect his or her novel; (2) tell someone whether his perpetual motion machine is patentable; (3) tell someone whether his personal version of file-sharing is legal. The list goes on and on. It's as if someone came up to you with a gangrenous foot and you said "damn, you should have that foot checked out" and BAM: unauthorized practice of medicine.

      I wish I were joking about any of this.

       

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    Gene Cavanaugh (profile), Jun 29th, 2011 @ 8:30pm

    Righthaven in South Carolina

    "To be honest, I've always found statutes or rules against "the unauthorized practice of law" to be a bit questionable in general. People should be able to avail themselves of the legal system without a lawyer, if they so choose (even if it's not very smart), and requiring one to become "licensed" has always struck me as much more of a method of limiting supply (and increasing costs), rather than any real attempt to maintain quality"
    WHAT? I don't know of a state where you CAN'T. The license is required if you represent someone else for hire!

    In fact, it is fairly common in some cases for someone to hire a lawyer for legal advice ONLY, and actually try the case themselves (and often successfully).

    The license is to protect the COURTS, BTW. unlicensed parties tend to take large amounts of time, trying to introduce material not allowed, making frivolous pleadings, etc. Some judges fall just short of insisting that an ex parte party have access to legal advice, as well as someone who understands the local rules, otherwise, very little gets done.

     

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