Berk v. State

• Decision Date: 26 May 1932
• Docket Number: 6 Div. 116.
• Citation: 142 So. 832,225 Ala. 324
• Parties: BERK v. STATE EX REL. THOMPSON.
• Court: Alabama Supreme Court

142 So. 832

225 Ala. 324

BERK v. STATE EX REL. THOMPSON.

6 Div. 116.

Supreme Court of Alabama

May 26, 1932

Rehearing Denied June 25, 1932.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Petition in nature of quo warranto by the State, on the relation of R Dupont Thompson, and R. Dupont Thompson individually, against Bernard Berk. From a judgment of ouster, respondent appeals.

Affirmed.

W Emmett Perry, of Birmingham, for appellant.

Marvin Woodall, David J. Davis, W. B. Harrison, Borden Burr, and John S. Stone, all of Birmingham, Harwood & McQueen, of Tuscaloosa, and Henry F. Reese, of Selma, for appellee.

THOMAS J.

The petition is in the nature of a quo warranto directed against one alleged to have and who is proposing to continue practicing law without the license required to lawfully engage in that profession.

The appeal is from a judgment rendered wherein the defendant was adjudged guilty of practicing law without a license, as required by law, and was prohibited from continuing the practice of law until he becomes regularly licensed to practice as required by law.

The petition was filed in the name of the state of Alabama on the relation of R. Dupont Thompson and by R. Dupont Thompson questioning the right of the defendant to engage in the profession of the practice of law, which requires a license, in Birmingham, Jefferson county, Ala., without first being so licensed. The relator alleges therein that he was a duly licensed practicing attorney, residing and practicing law in Birmingham, Jefferson county, Ala., and at that time was the president of the Birmingham Bar Association; that the defendant was engaged in the business of conducting a commercial collecting agency as a vocation, within the city of Birmingham, in which vocation he was holding himself out to the public as being ready, able, and willing, for a consideration paid or to be paid him, to represent out of court any one in the adjustment, collection, or compromise of any defaulted, controverted, or disputed account, claim, or demand, which such person might have against any one else, with neither of whom defendant was in privity or in the relation of employer or employee in the ordinary sense, and that when in defendant's judgment expedient to turn over to his attorney to prosecute in court any such claim or demand, and that the relator habitually did so turn over such claim or demand to his attorney for prosecution in court, when in his judgment it was necessary; and that the defendant had expressed his intention to continue handling such business in the future in the same manner.

It is further averred that in and about carrying on such business in Birmingham, before the institution of this suit on September 24, 1931, defendant, "by solicitation," secured from a person in the city of Birmingham with whom there was no relationship between them of employer or employee in the ordinary sense a defaulted, disputed, or controverted account, claim, or demand against a third person, which claim or demand was evidenced by a promissory note payable in a certain sum, and which note contained the following provision as a part thereof: "The parties to this instrument *** hereby severally agree to pay all costs of collecting or securing or attempting to collect or secure this note, including a reasonable attorney's fee."

It is further averred that thereafter, and before the institution of this suit, the respondent, in handling said note for collection, did the following things: He wrote a letter to the maker of the note, demanding payment of the same together with a collection fee as provided in the note, claiming $5 as such collection fee, and, when said letter was not answered by the maker of the note, the defendant mailed to the maker a notice which was received by him and was in matter and form made a part of the petition, together with the indorsement on the back of said notice, which appears to be in nature, form, and substance a threat on the part of the defendant to institute suit, and in aid thereof a garnishment forthwith against the maker of the note in the municipal court of Birmingham, wherein the employer of the maker of said note was to be made garnishee for the collection of said note by judicial proceedings, both as to principal, collection fee, and court costs. This formal notice is headed: "Final notice before garnishment."

It is alleged that thereupon the maker of said note called at the office of the defendant and conferred with him relative to the matter; disputed the correctness of the amount of said instrument, and that defendant demanded payment of said note in full of said maker, who then and there paid the defendant as such representative a sum less than the principal of said note in compromise of said claim, and, in addition thereto, paid him the further "sum of Five Dollars ($5.00) as his fee for services in compromising and collecting said note" in full settlement of said amount claimed; that defendant retained the $5 so collected as his fee, and remitted the principal amount collected of $14.66 to the owner or client in full settlement of his undertaking to collect said note.

It is then further averred that: "The defendant was operating at that time a general commercial collecting agency and solicited and made adjustment and collection and remittance as above set out; that the defendant during said time was not, is not, and has not been regularly licensed to practice law in the State of Alabama. Said defendant is at the present time handling notes in like manner as above set forth and admits that it is his intention to continue handling notes in that same manner in the future."

The defendant demurred to the petition filed, "and to each and every paragraph thereof separately and severally," assigning many grounds on which submission was had; as that the act in question was unconstitutional; did not show facts that constituted the practice of law; and that "said Act of the Legislature of Alabama entitled: 'An act to further regulate the practice of law; providing who may practice law; defining the practice of law; requiring a license for practicing law; and providing penalties for violations of the Act,' upon which this petition and writ of quo warranto are based, reenacts an existing law, namely, section 6248 of the Code of Alabama, 1923, and proceeds in an attempt to define the practice of law, and set out therein certain definitions, including other well known and recognized businesses which have not heretofore constituted the practice of law, and nothing is contained in the title to said act which would in anywise notify the persons to be affected thereby, namely, this defendant and others who are pursuing the business of an ordinary commercial collecting agency."

The trial court ordered and adjudged that said demurrer be overruled, and respondent refuse to plead further, whereupon the court ordered and adjudged "that the respondent, Bernard Berk, is now, has been, or proposes to continue unlawfully intruding into the profession of the practice of law (a profession requiring a license) in Birmingham, Jefferson County, Alabama. It is further ordered and adjudged by the court that the respondent, Bernard Berk, be and he is hereby excluded from said profession and prohibited from practicing law in Jefferson County, Alabama, until he becomes regularly licensed (as required by law) to practice law."

Under the facts alleged in the petition relative to the alleged business of defendant-appellant, was he, had he been, and did he propose "to practice law" unlawfully without having the required license to engage in such practice? Otherwise stated, the first question for decision is: Did the averred acts constitute "the practicing of law" per se?

The act regulating and defining the practice of law, approved July 20, 1931, provides in part as follows:

"Section 1. Only such persons as are regularly licensed have authority to practice law.

"Section 2. For the purposes of this Act, the practice of law is defined as follows: Whoever, (a) In a representative capacity appears as an advocate or draws papers, pleadings or documents, or performs any act in connection with proceedings pending or prospective before a court or a justice of the peace, or a body, board, committee, commission or officer constituted by law or having authority to take evidence in or settle or determine controversies in the exercise of the judicial power of the State or subdivision thereof; or, (b) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, advises or counsels another as to secular law, or draws or procures or assists in the drawing of a paper, document or instrument affecting or relating to secular rights; or, (c) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, does any act in a representative capacity in behalf of another tending to obtain or secure for such other the prevention or the redress of a wrong or the enforcement or establishment of a right; or, (d) As a vocation, enforces, secures, settles, adjusts or compromises defaulted, controverted or disputed accounts, claims or demands between persons with neither of whom he is in privity or in the relation of employer and employee in the ordinary sense; is Practicing Law. Nothing in this section shall be construed to prohibit any person, firm or corporation from attending to and caring for his or its own business, claims or demands; nor from preparing abstracts of title, certifying, guaranteeing or insuring titles to property, real or personal, or an interest therein, or a lien or encumbrance thereon." Gen. Acts 1931, p. 606.

This prescription or legislative definition...