Chicago Bar Ass'n v. Quinlan & Tyson, Inc.
| Decision Date | 25 January 1966 |
| Docket Number | No. 39131,39131 |
| Parties | The CHICAGO BAR ASSOCIATION et al., Appellees, v. QUINLAN AND TYSON, INC., Appellant. |
| Court | Illinois Supreme Court |
Cummings & Wyman, Chicago (Austin L. Wyman and Kurt W. Teuthorn, Chicago, of counsel), for appellant.
J. R. Christianson, William S. Kaplan and Richard L. Kahn, Chicago, for appellee.
Giffin, Winning, Lindner & Newkirk, Springfield (James M. Winning, Springfield, of counsel), for Illinois Assn. of Real Estate Boards, amicus curiae.
Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago (Vernon M. Welsh and Frank L. Winter, Chicago, of counsel), for Chicago Real Estate Bd. and the Evanston-North Shore Bd. of Realtors, amici curiae.
David J. A. Hayes, Jr., Springfield, for Illinois State Bar Assn., amicus curiae.
Louis Robertson, Arlington Heights, as amicus curiae.
George W. Crank, Chicago (Howard T. Savage and William Cousins, Jr.), Chicago, for amici curiae.
The Chicago Bar Association filed a complaint in the circuit court of Cook County to enjoin a real-estate brokerage firm, Quinlan and Tyson, Inc., from engaging in the unauthorized practice of law. After a lengthy hearing before a master in chancery it was found that the activities in question, performed in connection with negotiating purchases and sales of real estate for customers, constitute the practice of law. A decree was entered as prayed, except that the defendant was permitted to fill in the blanks of customary offer forms and contract forms as a necessary incident to its business. Upon review in the appellate court that part of the decree was reversed which allowed the filling in of forms, the court holding that none of the challenged services could be performed by persons not licensed to practice law. (Chicago Bar Association v. Quinlan and Tyson, 53 Ill.App.2d 388, 203 N.E.2d 131.) We have granted leave to appeal. The Illinois State Bar Association, the Cicago Real Estate Board and others have appeared and filed briefs as amici curiae.
The defendant is a corporation employing some fifty or sixty persons of which three are licensed real-estate brokers and twenty-three are licensed real-estate salesmen. In conducting its business defendant prepares offers to purchase real estate, draws contracts of purchase and sale, prepares deeds and other instruments necessary to clear or transfer title, and supervises the closing of the transaction. No separate fee is charged for these services, the defendant's compensation consisting solely of brokerage commissions.
The documents ordinarily used-consisting of the contract of sale, the deed, bill of sale for personalty, escrow agreement, application for a mortgage and affidavits waiving possible objections to title-come in standardized forms which defendant's brokers, real-estate salesmen and office personnel fill out for the parties involved. The forms are completed by inserting pertinent factual information and by deleting or striking out portions which do not apply. The forms themselves have been drawn or composed by lawyers.
Defendant contends such services do not amount to the practice of law because their performance by real-estate men has become an established custom and no harm is shown to have resulted. It is argued that they are a necessary incident of the real-estate business and that the filling in of these forms is a simple matter, for which ordinary business intelligence is sufficient. Relied upon also is the assertion that no compensation is charged for the service. Cited and discussed, State by State, are decisions from other jurisdictions tending to support the position taken by the defendant.
We have considered the authorities referred to but find it unnecessary to discuss them at length. The question is not one of first impression in this State. It was settled by our decision in People ex rel. Illinois State Bar Association v. Schafer, 404 Ill. 45, 87 N.E.2d 773, where a licensed real-estate broker was held in contempt of court for preparing contracts, deeds, notes and mortgages in transactions for which he received a broker's commission. This court found unacceptable the contention that the drawing of such instruments was proper because done in connection with his real-estate business. Rejected also was the argument which considers those acts to be more or less mechanical and routine, requiring no legal knowledge or skill. We pointed out (at p. 54, 87 N.E.2d at p. 777) that
Except for the matter of filling in blanks on the customary preliminary contract-of-sale form, which we shall hereinafter discuss, we agree with the appellate court that the Schafer case is not distinguishable from the case at bar. The fact that other kinds of unauthorized practice were also involved in that case does not affect the holding. Nor are we convinced from defendant's arguments that this authority should be overruled. It is not decisive that defendant is compensated only by its commission, making no special charge for the services in question; nor is it relevant that the services are customarily provided by real-estate men and that no identifiable harm is proved to have ensued. As the appellate court pointed out, it is the character of the acts themselves that determines the issue. If by their nature they require a lawyer's training for their proper performance it does not matter that there may have been a widespread disregard of the requirement or that considerations of business expediency would be better served by a different rule.
We think, however, that in one respect the prohibition in the appellate court's opinion is too broad. In the Schafer case this court did not in so many words discuss the preliminary or earnest money contract form, nor did we specifically condemn the mere filling in of the blanks on such forms. The decree of the trial court in the case at bar, permitting real-estate brokers to fill in the blanks of whatever form of such contract is customarily used in the community and to make appropriate deletions from such contract to conform to the facts, is approved. In the usual situation where the broker is employed to find a purchaser he performs this service when he produces a prospect ready, willing and able to buy upon the terms proposed by the seller. (See Fox v. Ryan, 240 Ill. 391, 88 N.E. 974.) The execution of an offer or preliminary contract is an evidencing or recording of this service in bringing together the buyer and seller. It coincides with the job the broker was employed to perform and which he is licensed to perform, and in practice it marks the point at which he becomes entitled to his commission. It seems reasonable therefore that he be authorized to draft this offer or preliminary contract, where this involves merely the filling in of blank forms. Keys Co. v. Dade County Bar Ass'n, (Fla.1950,) 46 So.2d 605.
In Gustafson v. V. C. Taylor & Sons, 138 Ohio St. 392, 35 N.E.2d 435, a real-estate broker followed the practice of filling in the blanks of a printed 'offer to purchase' form which, like those involved in the case at bar, had been prepared by a regularly admitted attorney-at-law. In a suit to enjoin this as unauthorized practice of law ...
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