Brown v. Phelps
| Decision Date | 01 March 1912 |
| Citation | 97 N.E. 762,211 Mass. 376 |
| Parties | BROWNE et al. v. PHELPS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. M Browne and John S. Richardson, for plaintiffs.
A. L Richards, for defendant.
This is an action by a firm of attorneys, consisting of father and son practicing in this state, to recover for services rendered and disbursements made in behalf of the defendant. The main question is whether the transactions were illegal as being in violation of R. L. c. 165, § 45.
This statute so far as material reads as follows: 'Whoever not having been admitted to practice as an attorney at law in accordance with the provisions of this chapter, represents himself to be an attorney or counselor at law, or to be lawfully qualified to practice in the courts of this commonwealth, by means of a sign, business card, letter head or otherwise, shall * * * be punished' by fine or imprisonment.
The senior member of the firm, the father, is a citizen of this state and a member of the bar here in good standing, having practiced in the various courts of the state and in the federal courts for the past 35 years. The junior member, the son, having been educated in this state, became in 1903 a citizen of the state of New Hampshire and was admitted to the bar of that state in June, 1906. Since his admission he has been actively engaged in general practice of the law in the courts of Maine, New Hampshire, Rhode Island, New York and Massachusetts, and also before various federal courts, as a member of the plaintiff firm. He never has been admitted as a member of the bar in this commonwealth, but has practiced here without objection. There is no doubt that in the various ways described in this statute he has represented himself to be an attorney and counselor at law lawfully qualified to practice in the courts of this commonwealth. And the question more precisely stated is whether, being a citizen of New Hampshire and a member of the bar of that state, but not of this, he is included in the phrase 'whoever, not being admitted to practice as an attorney at law in accordance with the provisions of this chapter.'
The section under consideration first appeared as St. 1891, c. 418, and mutatis mutandis was substantially in the form in which it now stands. Instead of the words 'in accordance with the provisions of this chapter,' the words were 'in accordance with chapter one hundred and fifty-nine of the Public Statutes.' This was the chapter providing for the admission of attorneys and so far as material was substantially the same as R. L. c. 165.
The contention of the plaintiffs is that the son is not among those who are forbidden by section 45 to practice in this commonwealth. And in support of that contention they argue that the provisions of Pub. St. 1882, c. 159, in force at the time of the passage of St. 1891, c. 418, as well as those of R. L. c. 165, relate only to citizens or inhabitants of this commonwealth (Pub. Sts. c. 159, §§ 34, 38; R. L. c. 165, §§ 41, 43), and that the prohibition contained in St. 1891, c. 418, as re-enacted in R. L. c. 165, § 45, relates only to the same class of persons, namely, citizens or inhabitants of the commonwealth. In a word the argument is that the prohibition is directed only against the citizens or inhabitants of this commonwealth and so is not applicable to a citizen of New Hampshire.
The plaintiffs are right in saying that at the time of the passage of St. 1891 and of R. L. c. 165, § 45, no citizen of a sister state could be admitted to practice as an attorney at law of our state courts; but it by no means follows that he could practice as an attorney here without being admitted. The prohibition applies to every person who has not been admitted to our courts in accordance with the provisions of our statute. It in effect divides persons into two classes: First, those who have been so admitted; and, second, those who have not. The language of the prohibition is broad enough to include all not embraced in the first class. Such is its plain import and such is the sense of the thing. The interpretation for which the plaintiffs contend would allow attorneys from other states, or even persons not attorneys in any state, provided they did not reside in this state, to hold themselves out here as attorneys duly authorized to practice law in this commonwealth. Such an interpretation would materially weaken the efficacy of the statute to reach the evil against which it is manifestly directed; it is unreasonable and cannot be adopted.
It is urged by the plaintiffs that it always ...
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