Chicago Bar Ass'n v. Kellogg

• Decision Date: 18 November 1948
• Docket Number: No. 30560.,30560.
• Citation: 401 Ill. 375,82 N.E.2d 639
• Parties: CHICAGO BAR ASS'N et al. v. KELLOGG.
• Court: Illinois Supreme Court

401 Ill. 375

82 N.E.2d 639

CHICAGO BAR ASS'N et al.

v.KELLOGG.

No. 30560.

Supreme Court of Illinois.

Nov. 18, 1948.

Appeal from Superior Court, Cook County; John P. McGoorty, judge.

Proceeding by the Chicago Bar Association and others against Wilbur Fiske Kellogg to enjoin defendant from the unauthorized practice of law. From an adverse decree, defendant appeals and plaintiffs cross-appeal.

Cause transferred.

Cloyes & Cavender, of Chicago, for appellant.

Charles Leviton, of Chicago (Casper William Ooms, Werner W. Schroeder, Albin C. Ahlberg, Clarence E. Fox, and Theodore C. Diller, all of Chicago, of Counsel), for appellees.

CRAMPTON, Justice.

The Chicago Bar Association, and sixteen attorneys, members of the committee on unauthorized practice, filed their complaint in the superior court of Cook County charging defendant, a patent attorney, with the unauthorized practice of law and praying he be restrained and enjoined therefrom.

The case is civil in nature, was filed by plaintiffs on behalf of themselves and all other attorneys who might wish to join as well as for the benefit of the public and courts of the county and State, and seeks a permanent injunction against defendant, who is a duly authorized agent to appear before the United States Patent Office, and whose name has appeared on the ‘Roster of Attorneys' of said office since 1918. Defendant formerly resided in Washington, D. C., and removed to Chicago about 1930 where he has since practiced as a patent attorney.

Defendant does not claim to be an attorney at law licensed to practice law in any State nor does he claim to be entitled to practice law in the Federal courts.

The cause was referred to a master who found defendant was engaged in an unauthorized practice of law and recommended the issuance of an injunction. The chancellor sustained certain objections to the master's report but approved it in the main and entered a decree on November 28, 1947, containing many findings of fact, which included a finding, as stipulated between the parties, that there are many patent attorneys practicing their profession in the city of Chicago under a license similar to the license issued to defendant, who are not authorized to practice law in Illinois, and that many of said attorneys are members of the Patent Law Association of Chicago, and issued a restraining order permanently enjoining defendant, his agents and employees from: (1) Rendering legal opinions relating to infringement and enforcement of patents and trade marks; (2) preparing,drafting and filing pleadings and other legal documents and papers in suits at law and in equity in courts of record and before administrative tribunals, other than the United States Patent Office; (3) participating as an attorney in legal proceedings other than United States Patent Office; (4) in behalf of persons represented by him, threatening to bring suit against other parties; (5) preparing and serving notice of and asserting attorney's lien under the Attorney's Lien Act (Ill.Rev.Stat.1947, chap. 13, par. 14), and (6) charging and collecting fees for legal services rendered by him or rendered by him and by others in legal proceedings, other than wherein the United States Patent Office has jurisdiction; and ordered defendant to pay the taxable costs incurred.

Paragraph 18 of said decree varied from the recommendations of the master in that the court found that the defendant had been preparing, drafting and construing assignments, leases and other documents relating to letters patent; that the rules of the United States patent office provide forms for preparing certain papers, including the assignment of patents, licenses for royalty and many other forms; that whether such forms should be used should properly be determined by the patent office, and that in this respect defendant had not been practicing law in violation of the law of the State of Illinois. This deviation from the mater's report and the injunctional relief sought pertaining thereto is assigned as cross error by plaintiffs.

At the time defendant was licensed to practice before the patent office he was not required to be an attorney at law. On November 15, 1938, the commissioner of patents, pursuant to authority of section 11 of Title 35 of the United States Code, adopted a rule for the registration of attorneys at law of any of the States or Territories, and for the registration as ‘agents' of any person who is not admitted to any bar, and who is of good moral character and of good repute, possessed of the necessary legal and scientific qualification to enable him to render applicants for patents valuable service, and is otherwise competent to advise and assist them in the presentation and prosecution of their patent applications before the patent office. The rules provide that the status of those who have been previously on the Register of Attorneys at the date of the change of the rule will not be affected by the rule. The rule further contains the following provisions: ‘Registration under the provision of this rule shall not be construed as authorizing persons not members of the bar to practice law. * * * No registered agent shall, in advertising matter or in papers filed in the Patent Office, represent himself to be an attorney, solicitor or lawyer.’ Rule 17, 35 U.S.C.A. Appendix.

The master found, and the chancellor approved the findings, that defendant held himself out as an attorney at law; hired attorneys for clients without disclosing their identity to the client and without establishing the relationship of attorney and client; participated in legal proceedings; construed patent licenses and rendered opinions with respect to infringement of, as well as interference with, patents; warned of and threatened litigation on behalf of clients; made charges for services for opinions and services concerning infringements of patents and trademarks; on one occasion, at least, signed his name as attorney to pleadings in court, and, upon...