State v. Milliman

802 N.W.2d 776, 2011 Minn. App. LEXIS 91, 2011 WL 2982293
CourtCourt of Appeals of Minnesota
DecidedJuly 25, 2011
DocketNo. A10-1388
StatusPublished
Cited by1 cases

This text of 802 N.W.2d 776 (State v. Milliman) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Milliman, 802 N.W.2d 776, 2011 Minn. App. LEXIS 91, 2011 WL 2982293 (Mich. Ct. App. 2011).

Opinion

OPINION

JOHNSON, Chief Judge.

Lance Gerald Milliman was found guilty after a bench trial of the petty misdemean- or offense of engaging in the unauthorized practice of law. The conviction is based on stipulated evidence that Milliman executed on a civil judgment, on behalf of a judgment creditor, by levying on a judgment debtor’s earnings. On appeal, Milliman argues that he was authorized to perform the procedure because the levy statute permits an “attorney” to perform it and because the judgment creditor appointed him attorney-in-fact. We conclude that the levy statute refers to an attorney-at-law, not an attorney-in-fact, so that only an attorney-at-law may utilize the statutory procedure to levy on a judgment debtor’s earnings. Therefore, we affirm.

FACTS

In May 2007, James Getzkow and his wife obtained a judgment of approximately $8,000 against two individuals. Getzkow obtained Milliman’s agreement to help him collect on the judgment. In April 2008, Getzkow executed a power-of-attorney form to appoint Milliman to be his attorney-in-fact. Milliman is not licensed to practice law in the state of Minnesota.

In July 2008, Milliman served the employer of one of the judgment debtors with a document entitled “Notice of Levy on Earnings and Disclosure.” The notice was consistent in form with the requirements of sections 551.04 and 551.06 of the Minnesota Statutes except that Milliman is described in the notice as Getzkow’s “attorney in fact.” The levy papers informed the judgment debtor’s employer of the unpaid judgment and demanded that the employer withhold a portion of the judgment debtor’s earnings and deliver the withheld amount to Milliman. The employer did so.

In October 2009, the state charged Milli-man in Meeker County with the petty misdemeanor offense of the unauthorized practice of law, a violation of Minn.Stat. § 481.02, subd. 1 (2006). A one-day bench trial was held in July 2010 based on stipulated facts. In August 2010, the district court found Milliman guilty. The district court imposed a fine of $100. Milliman appeals.

ISSUE

Did Milliman engage in the unauthorized practice of law, a violation of section 481.02, subdivision 1, of the Minnesota Statutes, by levying on the income of a judgment debtor pursuant to a power of attorney granted by a judgment creditor?

ANALYSIS

Milliman argues that the evidence is insufficient to support his conviction. Milliman cannot challenge the district court’s findings of the historical facts, which consist entirely of the parties’ stipulated evidence. Rather, Milliman challenges the district court’s interpretation of the statute that prohibits the unauthorized practice of law. On established facts, a district court’s interpretation and application of a statute is a question of law, which is subject to a de novo standard of review. State v. Carufel, 783 N.W.2d 539, 542 [778]*778(Minn.2010); State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996); State v. Marinaro, 768 N.W.2d 393, 397 (Minn.App.2009), review denied (Minn. Sept. 29, 2009).

The offense of which Milliman was convicted is set forth in the following statute:

It shall be unlawful for any person or association of persons, except members of the bar of Minnesota admitted and licensed to practice as attorneys at law, to appear as attorney or counselor at law in any action or proceeding in any court in this state to maintain, conduct, or defend the same, except personally as a party thereto in other than a representative capacity, or, by word, sign, letter, or advertisement, to hold out as competent or qualified to give legal advice or counsel, or to prepare legal documents, or as being engaged in advising or counseling in law or acting as attorney or counselor at law, or in furnishing to others the services of a lawyer or lawyers, or, for a fee or any consideration, to give legal advice or counsel, perform for or furnish to another legal services, or, for or without a fee or any consideration, to prepare, directly or through another, for another person, firm, or corporation, any will or testamentary disposition or instrument of trust serving purposes similar to those of a will, or, for a fee or any consideration, to prepare for another person, firm, or corporation, any other legal document, except as provided in subdivision 3.

Minn.Stat. § 481.02, subd. 1 (2006) (emphasis added). The statute contains numerous exceptions for certain types of services. See id., subds. 3, 3a, 7. A violation of the statute may be punished as a criminal offense, id., subd. 8(a), enjoined in a civil action by a county attorney or the attorney general, id., subd. 8(b), or enforced in a civil action by a private party pursuant to section 8.31, the so-called “private attorney general” statute, id., subd. 8(c). Although the regulation of the practice of law is exclusively within the control of the judicial branch, the supreme court has recognized legislative enactments such as section 481.02, subdivision 1, “as a matter of comity as long as they are reasonable and in harmony with [its] exercise of its authority to regulate the bar.” In re Conservatorship of Riebel, 625 N.W.2d 480, 481 n. 3 (Minn.2001); see also Cowern v. Nelson, 207 Minn. 642, 647, 290 N.W. 795, 797 (1940) (“accepting] the legislative declaration of policy” concerning unauthorized practice of law as matter of comity).

In this case, the district court concluded that Milliman engaged in the unauthorized practice of law because he “prepare[d] legal documents” and “perform[ed] for or furnish[ed] to another legal services.” See Minn.Stat. § 481.02, subd. 1. The district court reasoned that Milliman prepared the notice required by chapter 551 of the Minnesota Statutes and performed a service for Getzkow by serving the notice on the judgment debtor’s employer. The district court considered Milliman’s contention that the statute authorizing the procedure permits “[a]n attorney for a judgment creditor” to execute a judgment by levying on indebtedness owed by the judgment debtor to a third party, see Minn.Stat. § 551.01 (2006), and that he was so authorized because Getzkow had appointed him to be his attorney-in-fact. The district court rejected this argument on the ground that the term “attorney,” as used in section 551.01, refers only to an attorney-at-law, not to an attorney-in-fact.

On appeal, Milliman reiterates the argument that he was authorized by section 551.01 and by Getzkow’s execution of a power of attorney to serve the levy papers on the judgment debtor’s employer. The argument necessarily hinges on the [779]*779meaning of the word “attorney,” as used in section 551.01. “The objective of all statutory interpretation is ‘to give effect to the intention of the legislature in drafting the statute.’ ” State v. Thompson, 754 N.W.2d 352, 355 (Minn.2008) (quoting State v. Iverson, 664 N.W.2d 346, 350 (Minn.2003)).

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Cite This Page — Counsel Stack

Bluebook (online)
802 N.W.2d 776, 2011 Minn. App. LEXIS 91, 2011 WL 2982293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-milliman-minnctapp-2011.