New York County Lawyers' Ass'n v. Dacey

• Decision Date: 24 October 1967
• Parties: Petition of NEW YORK COUNTY LAWYERS' ASSOCIATION, Petitioner-Respondent, v. Norman F. DACEY, Norman F. Dacey doing business as National Estate PlanningCouncil, Crown Publishers Inc., Doubleday & Co., Inc. and Brentano's Inc.,Respondents-Appellants, for a decree pursuant to Section 750B of the JudiciaryLaw adjudgingthe respondents guilty of a criminal contempt of Court, an injunction and otherrelief.
• Court: New York Supreme Court — Appellate Division

Page 984

283 N.Y.S.2d 984

28 A.D.2d 161

Petition of NEW YORK COUNTY LAWYERS' ASSOCIATION Petitioner-Respondent, v. Norman F. DACEY, Norman F. Dacey doing business as National Estate PlanningCouncil, Crown Publishers Inc., Doubleday &amp Co., Inc. and Brentano's Inc.,Respondents-Appellants, for a decree pursuant to Section 750B of the JudiciaryLaw adjudgingthe respondents guilty of a criminal contempt of Court, an injunction and otherrelief.

Supreme Court, Appellate Division, First Department.

Oct. 24, 1967.

James F. Dwyer, New York City, of counsel (Jean C. Lucas and Robert M. Callagy, New York City, with him on the brief; Satterlee, Warfield & Stephens, New York City, attorneys), for appellants Crown Publishers, Inc., Doubleday & Company, Inc. and Brentano's, Inc.

Arthur Stephen Penn, New York City, for appellants Norman F. Dacey and Norman F. Dacey doing business as National Estate Planning Council.

Daniel M. Shientag, New York City, for petitioner-respondent.

Before STEVENS, J.P., and EAGER, CAPOZZOLI, TILZER, and McNALLY, JJ.

EAGER, Justice.

The respondents appeal from an order rendered in a proceeding brought by the New York County Lawyers' Association pursuant to Judiciary Law, section 750, subdivision B, to punish the respondents for contempt and for an injunction in the matter of alleged unlawful practice of law activities in the publication, distribution and sale of the book or treatise entitled 'How To Avoid Probate!'

Special Term concluded that the respondent Dacey, including his doing business as National Estate Planning Council, was guilty of criminal contempt, and adjudged him guilty of such contempt in that he did 'willfully and knowingly, engage in an unauthorized practice of law within the State of New York'. The order of Special Term further provided that Dacey and the respondents Crown Publishers, Inc., Doubleday & Co. Inc. and Brentano's Inc. (the publishers, distributors and sellers of the book) should be permanently enjoined from '(p) racticing or assuming to practice law in the State of New York, directly or indirectly'; from '(r)epresenting or holding themselves out to the public of the State of New York, as being authorized, qualified or competent to give legal advice or render legal opinions to the public'; from '(r)endering opinions, representing, advising or recommending to the public in the State of New York, in any manner or in any media, distributed, disseminated, published or broadcast to, or intended to reach, residents of the State of New York, orally, in writing, or by mechanical, electronic or electromagnetic devices, reproductions, records or recording devices intended to reproduce voices, writings, pictures, or any combination thereof, directly or indirectly, that any 'form', writing, instrument, or document, directed, designed, written or printed by the respondents, or any of them, or any other person * * * is legally sufficient, suitable or proper for use for any specific legal purpose, or will create, or abrogate any jural relationship or effect any transfer of property * * *'; from '(i)nstructing, advising, or recommending to residents of the State of New York with respect to the manner and method in which any 'form', writing, instrument or document is to be prepared, completed, executed, witnessed, filed, or recorded, or otherwise treated or dealt with for the purpose of effecting a legally sufficient transfer of specific property or establishing a specific jural relationship * * *'; and from '(o)ffering for sale, selling, distributing, or disseminating 'forms', writings, instruments or documents under such circumstances or in such a manner as would imply to or cause a resident of the State of New York to believe that such 'form', writing instrument or document was represented to be legally sufficient or proper for use for the purpose of effecting a transfer of specific property, or creating or abolishing a specific jural relationship * * *.'

Although we agree in the main with the reasoning and conclusions of Special Term as set forth in its well-written opinion, we conclude that the injunctive provisions of its judgment, insofar as they are directed against respondents other than Dacey, are too broad and sweeping in their terms and should be modified.

Dacey is not an attorney admitted to practice law. Nevertheless, on the basis of the undisputed facts, it appears that he planned to and did deliberately engage in activities constituting the practice of law in this State. Prior to his activities in New York, Dacey had written and distributed in the State of Connecticut a 30-page booklet describing and recommending the so-called 'Dacey Trust' and 'Dacey Will'. He met with those who were interested in his advice and assisted them in executing trust and will forms prepared and supplied by him. On the basis of his conduct in Connecticut, Dacey was enjoined by the court therein from engaging in the drafting and/or preparation of wills, trusts, trust agreements and similar documents and/or advising and counseling any person concerning the same or the effects thereof and the laws applicable thereto. (See Grievance Committee of Bar of Fairfield v. Dacey, 154 Conn. 129, 222 A.2d 39, rehearing den. 387 U.S. 938, 87 S.Ct. 2048, 18 L.Ed.2d 1006.) Having been enjoined from his unlawful practices in Connecticut, Dacey offered for publication in this State the book and forms entitled 'How To Avoid Probate!' Although there are no face-to-face meetings with customers or book purchasers here, this work and Dacey's activities in connection therewith were intended to and do serve as a large-scale expansion of the Connecticut booklet and operations. Clearly, it was Dacey's purpose to circumvent the effect of the Connecticut decree by substituting here a multiplicity of forms of legal instruments with particularized instructions as to each form so that they could be used on the basis of his written rather than face-to-face oral legal advice.

Dacey's present work consists of approximately 55 pages of text and approximately 310 pages of forms with accompanying instructions. The work contains a total of 26 declaration and deed of trust forms, 2 deed forms, 5 revocation of trust forms, 1 form of amendment of deed of trust and 12 will forms, with all of them in duplicate. These forms, as noted in the table of contents, 'are perforated for easy removal from the book'. A page or more of instructions accompanies each of the forms, advising a purchaser when and how to use them, including advice as to filling in of the blanks and the proper manner of executing and filing instruments. With each of the forms there is the general statement that it 'will be suitable for use' to effect a stated jural relationship or result. There is also the general statement in the text of the book, applicable to all of the forms, that: 'The instructions supplied with each instrument are quite precise. Any sensible person who reads them thoughtfully several times and checks his understanding of them with another person should have no difficulty'; that '(a)s to the forms provided in this volume * * * (t)hey are legally correct * * * and may be employed with complete assurance that they will serve the readers' purposes well'.

On the front and back covers of the book Dacey is represented to be 'One of America's Leading Professional Estate Planners' and 'America's best-known professional estate planner.' Prominently emphasized on the back cover is the direction and statement: 'ADMINISTER YOUR OWN ESTATE! This book will revolutionize estate administration in America! It tells you how to avoid the delay, expense and publicity of probate of: your home . . . your bank account . . . your stocks and bonds . . . your automobile . . . your close corporation . . . your mutual fund shares . . . your small unincorporated business . . . your personal effects.' On the whole, the book is represented and purports to be a compilation of instructions and legal counsel by Mr. Dacey, a non-lawyer.

The giving of legal advice and counsel, including instructions and advice as to the preparation and use of legal instruments, constitutes the practice of law which is forbidden in this State to all but duly licensed New York attorneys. This is well settled. (See Penal Law, §§ 270, 271, 280, subd. 3; 3 N.Y.Jur., Attorney and Client, § 1; Spivak v. Sachs, 16 N.Y.2d 163, 166--167, 263 N.Y.S.2d 953, 211 N.E.2d 329.) 'Protection of the members of the lay public of our State, when they seek Legal advice--and that is what defendant purported to furnish--is the basis of the requirements of licensing of attorneys by the State, and this protection must be deemed to embrace whatever kind of law or legal rights the layman seeks advice on (see Matter of New York County Lawyers Ass'n. (Standard Tax & Management Corp.), 181 Misc. 632, 43 N.Y.S.2d 479).' (Mtr. of N.Y. County Lawyers Assn. (Roel), 3 N.Y.2d 224, 231, 165 N.Y.S.2d 31, 37, appeal dismissed 355 U.S. 604, 144 N.E.2d 24.) Appropriate also is the statement in Rosenthal v. Shepard Broadcasting Service, 299 Mass. 286, 289--290, 12 N.E.2d 819, 821, 114 A.L.R. 1502, where the court held that the radio broadcasting of legal advice constituted the unlawful practice of law, and said: 'The giving of advice as to legal matters has been commonly recognized as an important part of the activities reserved for members of the bar and constitutes the practice of law.'

Here, Dacey prepared and drafted the many forms of legal instruments and documents contained in the book. Holding himself out as a qualified expert, he represented each form as suitable to accomplish a stated jural purpose or to effect a particular jural result, and gave specific advice as to the manner of completing, executing and filing the forms. Unquestionably, he intended that his forms and his advice be adopted and followed by laymen. This constitutes the practice of law. '(W)hen legal documents are prepared for a layman by a...