Boykin v. Hopkins
| Citation | 162 S.E. 796,174 Ga. 511 |
| Decision Date | 25 February 1932 |
| Docket Number | 8430. |
| Parties | BOYKIN, Solicitor General, v. HOPKINS et al. |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
"Practice of law" prior to 1931 included giving advice or rendition of any service requiring legal knowledge or skill (Civ. Code 1910, § § 4932, 4940, 4941; Laws 1916, p. 76).
The scope of the "practice of law" before the enactment of Acts 1931, p. 191 et seq., defining practice of law, was not confined to practice in the courts, but included preparation of pleadings and other papers incident to action or special proceeding, conveyancing, preparation of legal instruments whereby legal right is secured, rendering of opinions as to validity or invalidity of title, the giving of legal advice, and any action taken for others in any matter connected with the law.
Courts cannot grant charters authorizing corporations to practice law whether within or outside courts (Civ. Code 1910, § 2823 as amended, and § § 4930-4935, 4940, 4942, 4945; Laws 1916 p. 76).
Application for charter authorizing corporation to render legal advice give opinions on titles, furnish briefs, act as attorney in fact, prepare pleadings, wills, etc., should be denied as authorizing "practice of law" (Civ. Code 1910,§ 2823, as amended, and § § 4930-4935, 4940, 4942, 4945; Laws 1916, p. 76).
1. The decision of this court in Atlanta Title & Trust Co. v Boykin, 172 Ga. 437, 157 S.E. 455, is not authority for the proposition that the superior courts of this state, under the Civil Code 1910, § 2823, as amended, can grant a charter to a corporation authorizing it to practice law in this state.
2. Under the provisions of the Civil Code of 1910, the practice of law is not confined to practice in the courts of this state.
3. The practice of law, as that term is commonly used, embraces much more than the conduct of litigation. The greater, more responsible, and delicate part of a lawyer's work is in other directions. Practicing law, according to the laws and customs of courts, is the giving of advice or rendition of any sort of service when the giving of such advice or rendition of such service requires the use of legal knowledge or skill.
4. The superior courts of this state are not clothed with authority and jurisdiction, under the Civil Code of 1910, § 2823, as amended, to grant charters which authorize corporations to practice law in this state in any of its branches, whether the practice is confined to the courts or out of the courts.
5. The charter applied for, if granted, would confer upon the corporation the power to practice law.
6. The judge erred in refusing to grant the interlocutory injunction prayed for.
Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Suit by John A. Boykin, Solicitor General of the Atlanta Judicial Circuit, against J. G. Hopkins and another to enjoin defendants from prosecuting application for charter. Petitioner's application for interlocutory injunction was denied, and petitioner brings error.
Reversed.
Bond Almand, Elbert P. Tuttle, Henry A. Beaman, William G. Grant, Stephens Mitchell, and Madison Richardson, all of Atlanta, for plaintiff in error.
George G. Finch and F. L. Breen, both of Atlanta, for defendants in error.
Joseph G. Hopkins and Frank C. Crawley filed in Fulton superior court their petition in which they prayed to be incorporated as "Legal Services Incorporated." The application for charter was brought under the Civil Code of 1910, § 2823, as amended, which provides that "the superior courts of this State shall have power to create corporations, except for banking, insurance, railroad, trust, canal navigation, express, and telegraph companies, by compliance with" the provisions embraced in said section. Petitioners prayed that the right be granted to the corporation to The Solicitor General of the Atlanta judicial circuit, acting for and on behalf of the state on relation of Bond Almand and others, instituted an action against the petitioners for charter, in which he alleged that they were causing the application for said charter to be advertised; that the state is interested in the allowance of the proposed charter; and that each of the acts, which it is sought to confer upon such corporation the right to do, constitutes the practice of law, which cannot lawfully be performed by a corporation. The Solicitor General prayed that the incorporators be enjoined from further prosecuting said application for charter, in so far as it relates to the powers designated above as paragraphs (a), (b), (c), (d), (e), (f), (g), (h), and (i).
The defendants filed an answer in which they denied that the acts enumerated in their application for charter constitute the practice of law. The judge denied the application for an interlocutory injunction, upon the ground that, under the decision in Atlanta Title & Trust Co. v. Boykin, 172 Ga. 437, 157 S.E. 455, 458, the restrictions as to the practice of law imposed under the various Code sections of this state refer to the practice of law in the courts. To this ruling and judgment the Solicitor General excepted.
1. The first question for our determination is whether the above decision of this court is authority for the proposition that the practice of law in this state is confined to practice in its courts. In other words, is that decision authority for the proposition that any person, natural or artificial, can perform acts which constitute the practice of law, if such acts are not done or performed in the courts of this state, but are done or performed outside of such courts? If the statement of the justice who wrote the opinion in that case, as to what constitutes the practice of law, was concurred in by a majority of the justices of this court, it would be authority therefor. This statement was not concurred in by a majority of the justices of this court. The Chief Justice dissented, and Justice Gilbert concurred specially, and the writer concurred only in the result. So there were only three justices who can be said to have concurred in the statement upon this subject expressed by Justice Atkinson that "the restrictions upon the right to practice law refer to practice in the courts," and in effect do not extend to any legal matters performed outside of the courts. In that case the question was whether or not the charter of the Atlanta Title & Trust Company could be so amended as to confer upon that corporation the power "to prepare any and all papers in connection with conveyance of real and/or personal property that it may be requested to prepare by a customer." The Solicitor General and counsel associated with him therein insisted that the amendment sought by the title company, if allowed, would confer upon that company the right to practice law. The Chief Justice was of the opinion that the amendment would confer upon the title company the right to practice law; and for this reason he did not agree to the opinion or the result reached in that case. Justice Gilbert (as the writer understood) and the writer were of the opinion that the power to prepare any and all papers connected with the conveyance of real and personal property, which the title company might be requested to prepare by a customer, referred to the performance of mere clerical work, and did not constitute the practice of law. So the Chief Justice, Justice Gilbert, and the writer did not agree to the narrow and limited definition of what constitutes the practice of law, as was announced by Justice Atkinson in the opinion he wrote in that case. At the time the court had under consideration the decision in that case, the writer vigorously protested against the definition of what constitutes the practice of law, as given by Justice Atkinson in his opinion. The writer's opinion was, and still is, that the definition of what constitutes the practice of law as announced by Justice Atkinson in that case was too limited and narrow. Besides, the decision in that case was by a majority only of the court, and therefore is not binding as a precedent. We are strongly and decidedly of the opinion that the practice of law is not confined to practice only in the courts of this state.
2. At the time the decision was rendered in the case to which we have referred, and at the time the judgment was rendered in the case which we now have...
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