State v. Milliman
802 N.W.2d 776, 2011 WL 2982293, 2011 Minn. App. LEXIS 91 (2011)
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Rule of Law:
When a statute authorizes an "attorney" to perform a legal procedure, such as executing a levy on a judgment, the term refers exclusively to a licensed attorney-at-law, not an attorney-in-fact acting under a power of attorney. A non-lawyer performing such a procedure on behalf of another constitutes the unauthorized practice of law.
Facts:
- In May 2007, James Getzkow obtained a civil judgment of approximately $8,000 against two individuals.
- Getzkow engaged Lance Gerald Milliman, who is not a licensed attorney, to help collect on the judgment.
- In April 2008, Getzkow executed a power-of-attorney form, appointing Milliman as his attorney-in-fact.
- In July 2008, Milliman served a "Notice of Levy on Earnings and Disclosure" on the employer of one of the judgment debtors.
- The notice identified Milliman as Getzkow's "attorney in fact" and demanded the employer withhold a portion of the debtor's earnings.
- In response to the notice, the employer withheld the judgment debtor's earnings and delivered the amount to Milliman.
Procedural Posture:
- The state of Minnesota charged Lance Gerald Milliman in Meeker County district court (a court of first instance) with the petty misdemeanor of unauthorized practice of law.
- The case was submitted for a one-day bench trial based on stipulated facts.
- The district court found Milliman guilty and imposed a $100 fine.
- Milliman, as appellant, appealed the conviction to the Minnesota Court of Appeals, arguing the evidence was insufficient.
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Issue:
Does a non-lawyer acting as an 'attorney-in-fact' under a power of attorney engage in the unauthorized practice of law by executing a levy on a judgment debtor's earnings on behalf of a judgment creditor?
Opinions:
Majority - Johnson, Chief Judge
Yes, a non-lawyer acting as an attorney-in-fact engages in the unauthorized practice of law by executing a levy because the statute authorizing an "attorney" to perform this action refers exclusively to a licensed attorney-at-law. The court's reasoning is based on statutory interpretation of the term "attorney" in Minn. Stat. § 551.01. At the time the statute was enacted in 1990, the plain and common meaning of "attorney" was attorney-at-law, or a licensed lawyer. The historical definition of "attorney" as a mere agent or deputy (attorney-in-fact) was archaic. The court noted that when the legislature and courts intend to refer to an agent with a power of attorney, they explicitly use the term "attorney-in-fact." Therefore, the legislature intended to limit the execution of a levy to licensed lawyers. It is well-established that a principal cannot authorize an agent, via a power of attorney, to engage in the practice of law.
Analysis:
This decision clarifies the critical legal distinction between an attorney-at-law and an attorney-in-fact within the context of statutory interpretation. It establishes that certain legal procedures, even those that may seem administrative like executing a levy, are reserved for licensed attorneys. The ruling reinforces the state's interest in regulating the legal profession to protect the public, setting a clear precedent that a power of attorney cannot be used to circumvent licensing requirements for practicing law. This impacts collection agencies and other non-lawyers by strictly defining the limits of their authority in executing judgments.
