## Facts

- Arkansas auto dealerships affiliated with Asbury charged purchasers a “documentary” (document-preparation) fee tied to preparing vehicle-sale and financing paperwork, including retail installment contracts.
- A putative class of purchasers sued, alleging the documentary fee involved preparation of legal instruments by nonlawyers and thus constituted unauthorized practice of law (UPL).
- The class asserted claims under the Arkansas Deceptive Trade Practices Act (ADTPA), unjust enrichment, and sought to add a breach-of-fiduciary-duty theory based on the dealerships’ role in preparing legal documents.
- The litigation also included a separate challenge to a financing fee imposed in some transactions.
- Asbury argued it acted in good-faith reliance on Act 1600 of 2001, which purported to authorize dealers to charge documentary fees.
- The circuit court: (1) granted summary judgment for the class on UPL; (2) granted summary judgment for Asbury on the ADTPA documentary-fee claim; (3) denied leave to amend and class certification on a fiduciary-duty claim; (4) denied class certification on the financing-fee claim; and (5) dismissed unjust enrichment regarding the documentary fee.
- The class appealed the adverse rulings; Asbury cross-appealed the UPL ruling and related determinations.

## Issues

1. Whether charging a documentary fee for preparing vehicle purchase and financing forms constituted the unauthorized practice of law.
2. Whether the ADTPA provides a private cause of action based on UPL by nonlawyers without intruding on the judiciary’s authority to regulate the practice of law.
3. Whether Asbury could assert a good-faith-reliance defense based on Act 1600 after the statute was declared unconstitutional.
4. Whether alleged UPL in preparing legal instruments could support a breach-of-fiduciary-duty claim and whether the class should have been allowed to amend and seek class treatment on that theory.
5. Whether unjust enrichment was barred because the parties’ relationship was governed by sales and financing contracts.
6. Whether the financing-fee claim satisfied class-certification requirements.

## Decision

- Affirmed the determination that Asbury’s documentary-fee practice constituted UPL.
- Reversed summary judgment for Asbury on the ADTPA documentary-fee claim and remanded, holding ADTPA liability may be based on UPL by nonlawyers.
- Rejected Asbury’s asserted good-faith-reliance defense grounded in Act 1600.
- Reversed the denial of leave to amend and related rulings foreclosing the fiduciary-duty theory, allowing the class to pursue a breach-of-fiduciary-duty claim tied to UPL.
- Reversed dismissal of unjust enrichment, holding contracts did not automatically preclude equitable relief concerning the challenged fee.
- Affirmed the denial of class certification on the financing-fee claim.
- Overall disposition: affirmed in part; reversed and remanded in part on the direct appeal; affirmed on the cross-appeal.

## Legal Principles

- A nonlawyer’s preparation of legally operative instruments for another, especially for a separate fee, may constitute the unauthorized practice of law.
- Consumer-protection statutes may supply civil remedies against nonlawyers for conduct amounting to UPL without displacing the judiciary’s exclusive authority to regulate the practice of law.
- A party cannot avoid liability by claiming good-faith reliance on an unconstitutional statute where the statute purports to authorize conduct within the judiciary’s regulatory domain.
- When a business undertakes to perform legal services for a customer, fiduciary obligations analogous to attorney-like duties may arise, supporting a breach-of-fiduciary-duty claim.
- The existence of written contracts does not categorically bar unjust-enrichment claims where the challenged benefit is alleged to be unlawful or improperly retained.
- Class certification may be denied where transaction-specific variations prevent common issues from predominating, particularly for heterogeneous fee practices such as certain financing-fee arrangements.

## Conclusion

The court held that dealerships charging a separate documentary fee for preparing legal purchase and financing instruments engaged in UPL, that such conduct could support ADTPA, fiduciary-duty, and unjust-enrichment claims, and that reliance on an unconstitutional statute did not supply a defense, while leaving in place the denial of class certification for a more individualized financing-fee claim.


Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21 (Ark. 2011)