dissenting.
When this court handed down a per curiam in 1978 to create the Committee on the Unauthorized Practice of Law (CUPL), we said: “The Constitution and laws of this state vest in the Supreme Court the duty and authority to regulate the practice of law and to prohibit the unauthorized practice of law.” Rule of Court Creating a Comm. on the Unauthorized Practice of Law, 246 Ark. App’x 960 (1978) (per curiam). What we endorsed by that per curiam was the constitutional principle that this court and this |S7court alone regulates the unauthorized practice of law. See Ark. Const, amend. 28 (“The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.”).
The majority of this court now appears to contradict this court’s control over the unauthorized practice of law and our clear holdings that the Arkansas Deceptive Trade Practices Act (ADTPA) does not apply to the practice of law. See Preston v. Stoops, 373 Ark. 591, 594, 285 S.W.3d 606, 609 (2008) (“The suggestion that the practice of law can be regulated by an Act of the General Assembly is without merit.... We affirm the circuit court’s finding that the ADTPA does not apply to the practice of law.”); Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324 (recognizing that Stoops involved a claim regarding the unauthorized practice of law and that this court unequivocally said that the ADTPA does not apply to the practice of law).
Now this court is splitting hairs and hedging in my judgment with respect to this court’s constitutional power by saying that Stoops and Born only mean that the ADTPA does not apply to practicing attorneys, but it does apply for nonlawyers engaged in the unauthorized practice of law. In other words, the majority now concludes that practicing attorneys, including out-of-state attorneys unauthorized to practice in Arkansas, shall be regulated solely by this court while nonlawyers engaged in the unauthorized practice shall not be. That distinction not only makes no sense, but it is constitutionally questionable. When this court regulates the practice of law, that embraces the unauthorized practice of law.
IssWe have made the point clear in prior cases that nonlawyers practicing law are subject to this court’s regulation. See, e.g., Creekmore v. Izard, 236 Ark. 558, 565, 367 S.W.2d 419, 423-24 (1963) (holding that the preparation of deeds, mortgages, and bills of sale, for a fee, by a notary public clearly constitutes the practice of law and affirming an injunction against that practice); Pope County Bar Ass’n, Inc. v. Suggs, 274 Ark. 250, 256, 624 S.W.2d 828, 830-31 (1981) (recognizing that although the preparation of instruments to buy and sell real property by real estate brokers is “so indigenous to the practice of law” that it would be illogical to say it is not the practice of law, it is in the public interest to permit the limited, outside use of standard, printed forms). In Creekmore, this court affirmed sanctions in the form of an injunction against a nonlawyer notary public engaged in the practice of law.
Not only did this court establish the Committee on the Unauthorized Practice of Law by rule as part of our constitutional mandate, but we endowed that committee with the power to file complaints for declaratory and injunctive relief in circuit court. See Rule of Court Creating a Comm. on the Unauthorized Practice of Law, 264 Ark. App’x at 961. For the majority to now say that the CUPL has no enforcement power and can levy no sanctions is simply not the case. An injunction brought in circuit court against one engaged in the unauthorized practice of law is clearly a sanction which the CUPL sets in motion. The majority cites to a case that makes this clear. See American Abstract & Title Co. v. Rice, 358 Ark. 1, 186 S.W.3d 705 (2004). In Rice, this court determined that the CUPL had the authority to file a complaint in circuit court, obtain a declaration finding that a person is unlawfully practicing law, and | ^request an injunction to force the person to stop the unauthorized practice of law. Id. at 7, 186 S.W.3d at 708. The majority either overlooks this authority or determines that an injunction is not a sanction, which, of course, is untrue. Injunctions are definitely sanctions. See Black’s Law Dictionary 1369 (8th ed.2004) (defining sanction as a penalty or coercive measure that results from failure to comply with a law, rule, or other order).
What Stoops and Bom manifestly prohibit is a legislative foray into regulating the practice of law via the ADTPA, period. The majority, though, chooses to draw an artificial distinction between an Oklahoma lawyer unauthorized to practice in Arkansas, which was the situation in Stoops, and a lay person who attempts to practice law in this state. The client damaged by the unauthorized attorney in Stoops had no recourse under the ADTPA. The Campbell class, said to be damaged by a nonlaw-yer in the instant case, does. The majority endorses this disparate outcome despite the fact that there is no legitimate difference as far as the unauthorized practice of law between a lawyer licenced in another state who practices without authorization in Arkansas and a nonlawyer who practices without a license in Arkansas. Both are engaged in the practice of law, which, under amendment 28, falls within the exclusive jurisdiction of this court. The majority’s conclusion that “nonlawyers engaging in what we have exclusively defined as the practice of law are currently beyond [the judicial department’s] purview for purposes of sanction” does not accord with our precedent, with the actual powers of the Committee on the Unauthorized Practice of Law, or with our constitution.
|4nBy today’s decision, the court has ceded regulation of the unauthorized practice of law to the General Assembly and essentially washed its hands of its longstanding authority, which, again, has its genesis in the Arkansas Constitution. It is a mistake to do so and will have significant repercussions. Furthermore, our CUPL has been essentially emasculated by today’s opinion. The ADTPA was never designed to provide tort relief for the unauthorized practice of law. The majority has now squeezed the unauthorized practice under the ADTPA umbrella and created a private cause of action for these violations. I respectfully dissent on this point.
While I disagree that the ADTPA applies to afford a remedy to the class in this case, I do agree that unjust enrichment and fraud as related to the financing fee are proper remedies for the class to pursue. Moreover, I agree with the remaining conclusions in the majority’s opinion. For that reason, I dissent in part and concur in part.