Boykin v. Hopkins, No. 8430.

• Court: Supreme Court of Georgia
• Writing for the Court: HINES
• Citation: 174 Ga. 511,162 S.E. 796
• Parties: BOYKIN, Solicitor General. v. HOPKINS et al.
• Docket Number: No. 8430.
• Decision Date: 25 February 1932

174 Ga. 511

162 S.E. 796

BOYKIN, Solicitor General.
v.
HOPKINS et al.

No. 8430.

Supreme Court of Georgia.

Feb. 25, 1932.

Syllabus by the Court.

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.

ATKINSON and HILL, JJ., dissenting.

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.

HINES, J.

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

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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 "(a) Prepare abstracts of titles to real property. (b) Render legal advice on all matters on questions of law. (c) Render opinions as to the validity or invalidity of titles to real or personal property. (d) Prepare and furnish its customers, when requested by them, briefs on any and all questions of law. (e) Act as attorney in fact for the settlement or adjustment of any and all claims of any nature, including personal injury, property damage, and/or collection of accounts. (f) Act as attorney in fact for its customers in procuring competent attorneys at law to represent such customers in any court or before any judicial body in this State in any contested or uncontested case or matter pending before such court or judicial body, when an attorney at law is necessary. (g) Prepare or draw any petition, answer, demurrer, plea, or other pleadings, order, appearance, or response of any sort to be filed in court by such customer. (h) Prepare or draw any will, trust agreement, deed, conveyance, or other legal instrument whereby rights or property is conveyed or secured to the parties to such instrument. (i) Furnish legal advice or legal services in connection with matters pertaining to the law, or to render such services or give such advice as to the law, where such contract for said services does not require an appearance in court. (j) Acquire and dispose of real estate." 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 fight 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 strong-

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ly 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 under consideration, the Legislature of this state had never undertaken to define what constitutes the practice of law in this state. It is true that the Civil Code, § 4930, declares that persons who had been regularly licensed under the laws of this state before the adoption of the Code, and those who are thereafter licensed in the manner prescribed by law, are entitled to practice law in the courts of this state. It is likewise true that section 4931 declares that persons who are admitted to practice in the superior courts may practice in any other court of this state, except the Supreme Court, for which another and special license must be obtained. From these statutes Justice Atkinson drew the conclusion that the practice of law in this state is confined to practice alone in the courts of this state. The Legislature, in passing the statutes now embodied in these Code sections, was not dealing with the formulation of a definition of what then constituted the practice of law in this state. It was not the legislative purpose to define the practice of law in this state, but the Legislature only intended to declare who were entitled to practice in the courts of this state. The purpose of these statutes is simply to define who could practice law in the various courts of this state. This is shown by other statutes passed by the Legislature. The...