Birmingham Bar Ass'n v. Phillips & Marsh

• Decision Date: 28 March 1940
• Docket Number: 6 Div. 604.
• Citation: 239 Ala. 650,196 So. 725
• Parties: BIRMINGHAM BAR ASS'N v. PHILLIPS & MARSH ET AL.
• Court: Alabama Supreme Court

196 So. 725

239 Ala. 650

BIRMINGHAM BAR ASS'N v. PHILLIPS & MARSH ET AL.

6 Div. 604.

Supreme Court of Alabama

March 28, 1940

Rehearing Denied June 6, 1940.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Proceeding by the Birmingham Bar Association against Phillips & Marsh Inc., and others, to suppress alleged unlawful practice of law. From a judgment of non-suit, the plaintiff appeals.

Affirmed.

Where there is breach of duty to public, remedy of quo warranto is available in name of state by any member of public upon a compliance with the statute. Code 1923, § 9929 et seq.

The specifications set forth in the petition are as follows:

"(a) In a representative capacity each of said defendants, separately and severally, draws papers and documents, to-wit, releases and non-waiver agreements and other papers or documents of a similar nature or character in connection with proceedings pending or prospective before a court officer or commission, body or board 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 a subdivision thereof.

"(b) Each of said defendants, separately and severally, 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.

"(c) Each of said defendants, separately and severally, for a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, acts in a representative capacity in behalf of other persons, firms, associations or corporations, tending to obtain or secure for such persons, firms, associations, or corporations the prevention or the redress of a wrong, or the enforcement or establishment of a right.

"(d) Each of said defendants, separately and severally, as a vocation, enforces, secures, settles, adjusts, or compromises, defaulted, controverted or disputed accounts, claims or demands between persons with neither of whom such defendant is in privity or in the relation of employer and employee in the ordinary sense.

"(e) Each of said defendants, separately and severally, solicits employment from other persons, firms, associations and corporations to do or perform one or more of the acts above enumerated; and each of said defendants, separately and severally, enters into written or oral agreements with such persons, firms, associations and corporations, to do or perform one or more of the acts above enumerated.

"(f) Acted in a representative capacity and as attorney for insurance corporations in compromising and settling claims made against said insurance corporations and claims made against those insured by insurance corporations, arising out of alleged contracts and commission of torts, and has negotiated settlement therefor with claimants and lawyers representing claimants.

"(g) Advised, directly or indirectly, and counseled directly or indirectly, insurance corporations and individuals insured by insurance corporations with reference to their legal rights and in matters relating to secular rights of insurance corporations and those insured by them, and has advised and counseled claimants.

"(h) Drawn and caused to be drawn documents and instruments affecting the legal and secular rights of insurance corporations, those insured by insurance corporations, persons, firms and corporations. Included among said papers and documents are the following: releases, agreements of compromise and settlement, contracts, orders, answers to interrogatories, covenants not to sue, agreements for award under the Workmen's Compensation Law, demand for damages, notice to those insured by insurance corporations to the extent of coverage under their policies, and divers other papers, documents and instruments relating to legal and secular rights of insurance corporations, persons, firms and corporations and those making claims against them.

"(i) Controlled, directed, supervised and passed upon the acts of licensed attorneys at law in the handling of negotiations, drawing of documents and trial of matters before lawfully constituted courts and bodies.

"(j) Acted in a representative capacity and as attorney for insurance corporations in compromising and settling claims made against those insured by insurance corporations arising out of alleged contracts and commissions of torts, and have negotiated settlements therefor with claimants and lawyers representing claimants, although at the time said adjuster was not in privity with the insurance corporation, nor in the relation of employer and employee in the ordinary sense with said insurance corporation.

"(k) Advised, directly or indirectly, and counseled directly or indirectly, individuals insured by insurance corporations with reference to their legal rights and in matters relating to secular rights of insurance corporations and those insured by them, and has advised and counseled claimants.

"(l) Drawn and caused to be drawn documents and instruments affecting the legal and secular rights of those insured by insurance corporations, persons, firms, and corporations. Included among said papers and documents are the following: releases, agreement of compromise and settlement, contracts, orders, answers to interrogatories, covenants not to sue, agreements for award under the Workmen's Compensation Law, demands for damages, notice to those insured by insurance corporations to the extent of coverage under their policies, and divers other papers, documents and instruments relating to legal and secular rights of those making claims against said insurance corporations.

"(m) Investigated claims for compensation under the Alabama Workmen's Compensation Act for the purpose of advising insurance corporations who carry Workmen's Compensation Insurance on various industries in Alabama of their liability under their policy to the employer or to the employee for such compensation, and having conferred with persons who had claims against their employer for workmen's compensation for a settlement of said claims, although said adjuster was not in privity with the employer, nor did they bear the relation of employer and employee, one or the other, in the ordinary sense, and negotiated settlement with workmen making claims against those insured by insurance corporations; and procured settlements of workmen's compensation claims against employers and preparing papers relating to the negotiation of such settlements."

Horace C. Wilkinson and Wm. S. Pritchard, both of Birmingham, for appellant.

W. M. Rogers, E. L. All, and W. H. Forlines, all of Birmingham, Dan MacDougald, of Atlanta, Ga., Bradley, Baldwin, All & White, of Birmingham, MacDougald, Troutman & Arkwright, of Atlanta, Ga., McCorvey, McLeod, Turner & Rogers, of Mobile, Alexander A. Marks, of Montgomery, and Coleman Spain, Stewart & Davies, Mead & Moebes, Lange, Simpson, Brantley & Robinson, Herbert J. Ward, and p>Page James A. Simpson, all of Birmingham, for appellees.

BOULDIN Justice.

Birmingham Bar Association instituted a proceeding in the Circuit Court of Jefferson County with the ultimate purpose of putting an end to the alleged practice of law in Jefferson County by unlicensed individuals, associations and corporations connected with the insurance business.

Demurrers were sustained to the petition, complaint, or bill in equity as originally filed and as amended. Because of these adverse rulings a non-suit was taken. The appeal is to review such rulings. The initial pleading was filed on the law side, summons issued by the clerk and served on the several respondents.

The numerous parties respondent or defendant, omitting one designated as "Official Respondent," are divided into three classes:

(1) "Claim Adjusting Respondents," three corporations and one individual, charged with engaging in the unlawful practice of law, separately and severally, through their officers, agents, or employees, as set out in specifications, (a) (b) (c) (d) (e) (f) (g) (h) (i) which appear in the report of the case. Specifications (J) (K) (L) and (M) added by the amended petition or complaint also appear in the report of the case.

(2) The second class of respondents is designated as "Individual Respondents," alleged to be the acting officers, employees, or agents of the "Claim Adjusting Respondents" through whom these adjustment companies or bureaus are engaged in the unlawful practice of law as specified.

(3) "Accessory Respondents." These are numerous insurance companies doing business in Jefferson County, some in the fire insurance business and the like, and some in the various forms of casualty insurance. They are charged with aiding and abetting the unauthorized practice of law, separately and severally, in employing the "Claim Adjusting Respondents" and the "Individual Respondents, or one or more of them, to commit one or more of the aforesaid acts enumerated" in the specifications.

The amended prayer reads:

"The premises considered, Plaintiff prays that the defendants and each of them, separately and severally, be required to appear before this Court on such day and date as the Court may fix then and there to show cause, if any, why they should not be adjudged guilty of unlawfully practicing law in the Tenth Judicial Circuit of Alabama, and upon being found guilty of such practice, why necessary and appropriate steps should not be taken to suppress said unlawful practice of law by the defendants in the Tenth Judicial Circuit of Alabama.

"And plaintiff prays that the Court will suppress the unlawful practice of law in the Tenth...