Application of Christianson

Citation215 N.W.2d 920
Decision Date31 January 1974
Docket NumberNos. 8520,8761,s. 8520
PartiesApplication of Elmo T. CHRISTIANSON for Reinstatement to the Bar of the State of North Dakota.
CourtUnited States State Supreme Court of North Dakota
Syllabus by the Court

1. A suspended attorney has the burden of clearly establishing his qualifications for reinstatement by sufficient proof to overcome the prior adverse judgment leading to his suspension.

2. A suspended attorney who draws and supervises the execution of a will and

obtains articles of incorporation for another is engaged in the unauthorized practice of law.

3. A disbarred or suspended attorney engages in the unauthorized practice of law when he performs services customarily performed by licensed attorneys which require legal expertise, even though such acts may lawfully be performed by laymen in some circumstances, unless his qualifications to perform such services derive from sources other than his law training and law experience.

4. A disbarred or suspended attorney may be employed as a law clerk by a licensed attorney.

Elmo T. Christianson, pro se.

Donald J. Olson, Grand Forks, for Grievance Commission of the Supreme Court.

VOGEL, Judge.

The petitioner was suspended from practice as an attorney at law in this State on September 18, 1956, upon conviction of a felony in Federal Court. See Christianson v. United States, 226 F.2d 646 (CA8 1955), cert. denied 350 U.S. 994, 76 S.Ct. 543, 100 L.Ed. 859 (1956). On May 16, 1957, his right to practice was reinstated.

On February 13, 1970, he was suspended for reasons which appear in In re Christianson, 175 N.W.2d 8 (N.D.1970). The decision provided that the petitioner would 'have the privilege of applying for reinstatement of a certificate of admission to the bar one year after the entry of this order, on a showing that he has made restitution . . . and that he is otherwise qualified to be reinstated as a member of the bar of the state of North Dakota.'

On March 2, 1971, he applied for reinstatement as an attorney at law. The matter was referred to the appropriate grievance committee of the State Bar Association which, upon investigation, found that certain complaints were made against the conduct of the petitioner. The Grievance Commission of this court held a hearing on the complaints, as well as upon the petition for reinstatement, and filed its report with this court. In April 1972, a hearing was held on the report and recommendations of the Grievance Commission, and on May 5, 1972, this court ordered 'that the certificate of admission of Elmo T. Christianson to the bar of the State of North Dakota shall remain suspended, with a provision that the said Elmo T. Christianson may reapply for reinstatement after January 1, 1973, and may be reinstated upon a proper showing at that time.' Application of Christianson, 202 N.W.2d 756 (N.D.1972).

By application dated January 8, 1973, the petitioner again applied for reinstatement. The matter was again referred to the grievance committee, again further complaints developed, again they were investigated, and again the Grievance Commission conducted an investigation and made its recommendation. The findings of fact and conclusions of law and recommendation of the Grievance Commission are as follows:

FINDINGS OF FACT

'1. That the certificate of admission of Elmo T. Christianson to the Bar of the State of North Dakota was suspended in 1970 by action of the Supreme Court of North Dakota as reported in 175 N.W.2d 8.

'2. That suspension thereof was continued by action of the Supreme Court of North Dakota as reported in 202 N.W.2d 756.

'3. That under Rule XIII of the Supreme Court Rules of Disciplinary Procedure, the burden is upon an applicant seeking reinstatement to establish the averments of his application by clear and convincing evidence.

'4. That the petitioner in his petition stated, in part:

'1) that petitioner has observed the mandate of the Court in every respect and has not practiced law since its order of suspension. . . .'

'5. That the petitioner during the suspension of his certificate of admission to the Bar of North Dakota prepared a Will for one Rosa Johnson.

'6. That during the period of suspension, the petitioner incorporated The Par Bar and received check No. 3020 dated October 31 in the amount of $55.00 for his work in forming the said corporation.

'7. That during the period of suspension, the petitioner incorporated J & R Automotive Jobbers, Inc. and received therefor check No. 101 dated March 9, 1973 in the amount of.$442.95 bearing the notation 'corporation tax and records', a part of which represented fees for his work in setting up the corporation.

'8. That the petitioner in his statement to Grievance Committee No. 1 on March 24, 1973 falsely denied having received any money in connection with the incorporation of J & R Automotive Jobbers, Inc. when in fact he had received the check referred to in paragraph 7 hereof on or about the date it bears, namely March 9, 1973.

'9. That the petitioner during the period of suspension actively undertook with Attorney Robert Fiedler (sic) of Grand Forks the representation of one Robert A. Blackburn in a criminal case; that the petitioner participated in every aspect of the case except actual court room appearances, and that his work included investigation and preparation of pre-trial motions, trial briefs and closing argument.

'10. That for his work, the petitioner received payment from Robert Blackburn in the total sum of $250.00 by checks as follows:

Check No. 459 dated April 3, 1972 $ 50.00

Check No. 289 dated March 10, 1972 $100.00

Check No. 297 dated March 18, 1972 $ 50.00

Check No. 409 dated April 28, 1972 $ 50.00

'11. That the petitioner falsely stated to the Grievance Committee No. 1 on March 24, 1973, that he had not received any money from Blackburns and that he had been paid for his work by Attorney Fiedler (sic).

'The Grievance Commission further reaches the following:

'CONCLUSIONS OF LAW

'1. That the petitioner, in violation of the mandate of the Supreme Court and the statutes of the State of North Dakota has engaged in the unauthorized practice of law during a period when his certificate of admission to the Bar was suspended.

'2. That the petitioner has wholly failed to sustain the burden of showing that he is entitled to reinstatement to the Bar of the State of North Dakota.

'3. That the petitioner has not established the averments of his application by clear and convincing evidence.

'RECOMMENDATION

'The Grievance Commission unanimously recommends that the suspension of petitioner's certificate of admission to the Bar of the State of North Dakota be continued indefinitely, and that the petitioner be assessed actual costs as determined by the Clerk of the Supreme Court.'

The petitioner admits that he prepared the will of Rosa Johnson, that he incorporated the Par Bar, that he incorporated J & R Automotive Jobbers, Inc., and that he assisted Attorney Robert Feidler in representing Robert A. Blackburn in a criminal case.

He attempts to excuse the drafting of the will by stating that Mrs. Johnson was hospitalized and afraid she would soon die; that she was talking in Icelandic and that a member of the hospital staff called the petitioner, who speaks Icelandic, and asked the petitioner to talk to her; and particularly that in drafting the will the petitioner was acting as the clerk of a practicing attorney, Wesley Argue, of Hamilton, North Dakota. He also denies receipt of a fee for incorporating the Par Bar.

Apparently neither Mrs. Johnson, who is still living, nor Mr. Argue was interviewed by representatives of the grievance committee or the Grievance Commission. Mr. Argue's affidavit is submitted on behalf of the petitioner, but it makes no reference whatever to the matter of the drafting of Mrs. Johnson's will. It states only that Mr. Argue 'knows of no instance where Mr. Elmo T. Christianson has engaged in the practice of law since the time of the suspension of his license' and 'that the affiant has no knowledge of any unauthorized practice of law by Mr. Elmo T. Christianson during the period of time when his license to practice law was suspended.' It is totally silent as to whether Mr. Christianson ever acted as clerk for Mr. Argue.

We discussed the difficulty of defining the term 'practice of law' at some length in Cain v. Merchants National Bank & Trust Company of Fargo, 66 N.D. 746, 268 N.W. 719 (1936), particularly as applied to the practice of law by a corporation employing a licensed lawyer in its trust department. We said: 'The exact scope of practicing law even under the best definitions laid down by the courts is not always readily discernible.' We concluded that:

'. . . a person who is not a member of the bar may draw instruments such as simple deeds, mortgages, promissory notes, and bills of sale when these instruments are incident to transactions in which such person is interested, provided no charge is made therefor. These simple instruments are usually prepared upon or with the aid of printed forms and seldom involve a high degree of legal skill. The drawing of complicated legal instruments such as wills or trust agreements require more legal knowledge than is possessed by the average layman. They must be framed from a mass of facts so as to convey the intention of the parties and bring about a desired legal result. One who draws such instruments for others practices law even though such instruments might, to some extent, be incident to a business such as that usually conducted by trust companies.

'In this case the facts disclose that in some instances the defendant has invaded the field of legal practice. The wills which we have previously mentioned constitute isolated instances of practicing law. . . .'

We find no difference between drawing wills for others and incorporating a corporation for others.

To obtain articles of incorporation for another is to practice law. Florida Bar v. Town, 174 So.2d 395 (Fla.1965...

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21 cases
  • Mitchell, In re
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 27, 1989
    ...engaged in the practice of law, and that his work and his opinions are presumably more valuable on that account." Application of Christianson, 215 N.W.2d 920, 925 (N.D.1974). See also Matter of Discipline of Jorissen, 391 N.W.2d 822, 825 (Minn.1986) ("Where the individual charged with unaut......
  • In re Blake
    • United States
    • Oklahoma Supreme Court
    • March 22, 2016
    ...the pleadings he drafted for his clients, or that he had not entered an appearance in any court.”).13 See also Application of Christianson, 215 N.W.2d 920, 925 (N.D.1974) (“[t]he public knows that [a disbarred lawyer] has a legal education, that he has engaged in the practice of law, and th......
  • In re Hoffman
    • United States
    • North Dakota Supreme Court
    • October 18, 2005
    ...character and of sufficient weight to overcome the former adverse judgment as to the petitioner's character." Application of Christianson, 215 N.W.2d 920, 923 (N.D.1974). We review proceedings for reinstatement de novo on the record and accord due weight to the findings, conclusions, and re......
  • Ranta v. McCarney, 11033
    • United States
    • North Dakota Supreme Court
    • July 16, 1986
    ...may recover compensation for his or her services. There are, however, two North Dakota cases which are analogous. Application of Christianson, 215 N.W.2d 920 (N.D.1974), involved legal work performed by a suspended lawyer which, the lawyer alleged, could be lawfully performed by a layperson......
  • Request a trial to view additional results

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