Arkansas Bar Ass'n v. Union Nat. Bank of Little Rock

• Decision Date: 13 December 1954
• Docket Number: No. 5-484,5-484
• Parties: ARKANSAS BAR ASSOCIATION et al., Appellant, v. UNION NATIONAL BANK OF LITTLE ROCK, Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 408

273 S.W.2d 408

224 Ark. 48

ARKANSAS BAR ASSOCIATION et al., Appellant, v. UNION NATIONAL BANK OF LITTLE ROCK, Arkansas, Appellee.

No. 5-484.

Supreme Court of Arkansas.

Dec. 13, 1954.

Julius C. Acchione and U. A. Gentry, Little Rock, for appellant.

Moore, Burrow, Chowning & Mitchell, Little Rock, for appellee.

WARD, Justice.

This suit was instituted by the Bar Association of Arkansas, acting through its proper committee [joined by the local Bar Association of Pulaski County] to enjoin the Union National Bank of Little Rock from engaging in the unauthorized practice of law.

After hearing testimony relative to certain activities on the part of the Bank alleged to constitute unlawful practice, the Chancellor sustained appellant's contentions as to certain activities and rejected their contentions as to certain others. This appeal seeks to reverse the decree as to the activities held by the Chancellor not to constitute unauthorized practice.

Appellee is a banking corporation organized under the National Bank Act and is authorized thereunder, 12 U.S.C.A. § 248, to act as personal representative of decedents' estates, of minors' and incompetents' persons and estates, to act as trustee of property held in trust, and otherwise to act generally in a fiduciary capacity. The Bank has two full time employees who are licensed attorneys and who look after all trust and estate matters as indicated above, and, generally speaking, these attorneys prepare all related orders, petitions, and other instruments, and make all necessary presentations of the same in the Probate and Chancery Courts.

Although considerable testimony was introduced before the Chancellor it is not brought forward in the record. In lieu thereof both sides have agreed that the narrative statement [copied in the record] of one of the Bank's attorneys fairly represents the factual situation with which we are dealing. In addition to the decree, which is shown in the record, the Chancellor made a somewhat exhaustive finding of facts and law, designated as his 'Opinion' which likewise is in the record, and there is no contention that the factual situation contained in the 'Opinion' is not correct.

The complaint sets forth numerous activities on the part of the Bank incident to the handling [through its attorneys] of trust and estate matters, and the Chancellor, in his 'Opinion', considered these activities separately and concluded which activities amounted to unlawful practice of law and which did not. The 'Opinion' groups the aforesaid activities under three classifications, as follows: (1) Drafting of wills; (2) Drafting of trust instruments; and, (3) Preparation of pleadings and instruments and making appearances in Probate and Chancery Courts.

Since the Chancellor based some of his conclusions on a premise or rule with which we do not agree, we likewise do not agree with some conclusions reached. However, before evaluating the respective contentions, we deem it expedient and helpful to announce certain general conclusions which we have reached, and which, we think, will help to clarify the points of disagreement between the parties hereto. Some of the general conclusions set out below are not controverted but others, as will be indicated, have been arrived at after careful consideration of decisions in other jurisdictions.

One. Corporations Cannot Practice Law. Section 1, Act 182 of 1929, now appearing as Ark.Stats., § 25-205 reads as follows:

'It shall be unlawful for any corporation or voluntary association to practice or appear as an attorney at law for any person in any court in this State or before any judicial body, or to make it a business to practice as an attorney at law for any person in any of the said courts or to hold itself out to the public as being entitled to practice law, or to tender or furnish legal services or advice, or to furnish attorneys or counsel, or to render legal services of any kind in actions or proceedings of any nature or in any other way or manner, or in any other manner to assume to be entitled to practice law or to assume or advertise the title of lawyer or attorney, attorney at law, or equivalent terms in any language in such manner as to convey the impression that it is entitled to practice law, or to furnish legal advice, service or counsel, or to advertise that the either alone or together with or by or through any person, whether a duly and regularly admitted attorney at law, or not, it has, owns, conducts or maintains a law office or any office for the practice of law, or for furnishing legal advice, services or counsel.'

Nor can the corporation do indirectly what it is forbidden to do directly.

'The fact that any officer, trustee, director, agent, or employee shall be a duly and regularly admitted attorney at law shall not be held to permit or allow any such corporation or voluntary association to do the acts prohibited herein nor shall such fact be a defense upon the trial of any of the persons mentioned herein for a violation of the provisions of this act.' (§ 25-208).

Two. An Individual Can Practice Law for Himself. It is generally conceded that an individual who is not a licensed attorney can appear in the courts and engage in what is commonly conceded to be practicing law provided he does so for himself and in connection with his own business. A corporation may also represent itself in connection with its own business or affairs in the courts of this state provided it does so through a licensed attorney. This is specifically provided in Section 5 of the above mentioned Act now appearing as Ark.Stats. § 25-209. It further appears clear to us that under the above statute the attorney representing a corporation may be a full time employee of the bank.

Three. A Trustee or Personal Representative Does Not Act for Himself. It is our conclusion, after reviewing many decisions of other jurisdictions and from a study of our own statutes, that an individual or a corporation such as the appellee here is not looking after its own business when, acting as an administrator, an executor, guardian or in a similar fiduciary capacity, it undertakes to use the processes of the courts of this state in administrating and settling the affairs of its cestui que trust. Stated specifically we hold that a person who is not a licensed attorney and who is acting as an administrator, executor or guardian cannot practice law in matters relating to his trusteeship on the theory that he is practicing for himself. Again we hold specifically that the appellee corporation although acting through an employee, who is a licensed attorney, cannot practice law in the Probate and Chancery Courts on the theory that it is handling its own business. The very term itself it seems to us implies that a trustee or personal representative is not acting for himself and in connection with his own business affairs but on the contrary is acting for others who ordinarily would be the beneficiaries.

Appellee, in support of the view contrary to the one we have expressed above, cites authorities which it is contended hold that trustees and personal representatives can practice law in connection with trust affairs on the ground that they are practicing for themselves. Among the cases relied on by appellee in support of its view are Judd v. City Trust & Savings Bank, 133 Ohio St. 81, 12 N.E.2d 288, Detroit Bar Ass'n v. Union Guardian Trust Co., 282 Mich. 216, 276 N.W. 365, Groninger v. Fletcher Trust Co., 220 Ind. 202, 41 N.E.2d 140, and Merrick v. American Security & Trust Co., 71 App.D.C. 72, 107 F.2d 271. We have examined the holdings in these cases along with the statutes and reasoning upon which the conclusions were based, and it is sufficient here to say, particularly in view of what we later say, that we find nothing which binds us to adopt appellee's view in this connection.

The view which we have taken in this matter has been approved in other jurisdictions. The issue before us was discussed in In Re Otterness, 181 Minn. 254, 232 N.W. 318, 319, 73 A.L.R. 1319, where the court used this language:

'The probate courts of this state are courts of record with exclusive original jurisdiction over the estates of deceased persons and persons under guardianship. Conducting proceedings in those courts constitutes practice of law.'

Again the court said:

'An executor, administrator, or guardian, as such, has no right to conduct probate proceedings, except in matters where his personal...