Childs v. Smeltzer

• Decision Date: 09 April 1934
• Docket Number: 386
• Citation: 315 Pa. 9,171 A. 883
• Parties: Childs et al., Appellants, v. Smeltzer
• Court: Pennsylvania Supreme Court

171 A. 883

315 Pa. 9

Childs et al., Appellants, v. Smeltzer

No. 386

Supreme Court of Pennsylvania

April 9, 1934

Argued January 16, 1934

Appeal, No. 386, Jan. T., 1933, by plaintiffs, from decree of C.P. No. 3, Phila. Co., Sept. T., 1932, No. 3888, in case of Randolph W. Childs et al., individually, and as members of the committee on unauthorized practice of law, on behalf of Philadelphia Bar Association v. Edith Smeltzer. As herein modified, decree of court below is affirmed.

Bill to restrain practice of law. Before DAVIS, P.J.

The opinion of the Supreme Court states the facts.

Decree entered enjoining defendant only from holding herself out as competent to render legal services. Plaintiffs appealed.

Errors assigned, inter alia, were dismissal of exceptions.

As herein modified, the decree of the court below is affirmed at appellee's costs.

Joseph P. Gaffney, for appellant.

Edgar W. Lank, with him Samuel Lander, for appellee.

Samuel R. Rosenbaum, with him Joseph First, for Philadelphia Real Estate Board, amicus curiae.

Oscar G. Bender and Samuel R. Rosenbaum, for Pennsylvania Real Estate Association, amicus curiae.

Oscar G. Bender, for North Philadelphia Realty Board and West Philadelphia Realty Board, amici curiae.

Morris B. Levitt, for South Philadelphia Realty Board, amicus curiae.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. CHIEF JUSTICE FRAZER:

Appellants members of the Committee on Unauthorized Practice of Law of the Philadelphia Bar Association, acting for and by authority of that body, sought by bill in equity to obtain an injunction restraining defendant and her employees from practicing law in any form, from holding herself out as having a right to practice law, or from advertising that she furnishes legal services or draws legal papers of any kind. Defendant, who styles herself a conveyancer, is a notary public and stenographer, with offices located in the Real Estate Trust Building, Philadelphia. She is not a lawyer and has not been admitted to the bar of Philadelphia County or elsewhere. The court below awarded an injunction restraining defendant from holding herself out as competent to perform legal services, but decreed that she be permitted to engage in conveyancing and perform stenographic or notarial work authorized by law. The present appeal challenges the correctness of that decree.

The findings of fact state that defendant has advertised herself as specializing in the preparation of deeds, mortgages, releases, assignments and all other legal papers, but that these advertisements have been confined to circularizing real estate brokers and lawyers in Philadelphia. Appellee admits that in her business she has drawn a great variety of legal instruments, including wills, deeds of trust, bills of sale, leases, partnership agreements, and more than a thousand deeds and mortgages. In a few instances defendant placed in typewritten form instruments brought to her already written out, but in most cases she used forms containing blanks which she filled out with appropriate language, although occasionally she drafted the papers from information given her, using her own phraseology. Her net receipts in 1928 were approximately $4,500 and in 1929 were $3,600 but have been considerably less in recent years.

Appellants' bill was brought upon the theory that the Act of 1899, P.L. 117, as amended by the Act of April 17, 1913, P.L. 80, prohibits the unauthorized practice of law. The chancellor took the view that "this act is directed against the holding out to the public as being entitled to practice law without being regularly admitted to such practice by a court of record," and that "it would seem a fair thing to hold that performance of services, though they may in part be of a legal nature, is not necessarily practicing law unless, in violation of the Act of 1913, a person performing such services holds himself out to the public as a lawyer or as entitled to practice law or in some way deceive the public or his clients as to his status." The wording of the Act of 1913, supra, compels us to affirm the decree at this time. However, subsequent to the hearing and decree nisi, but before final decree, the legislature, by an act approved April 24, 1933, further amended the Act of 1913 in such manner as to leave no doubt that the practice of law by unauthorized persons, as well as any illegal holding out as an attorney, is contrary to law and prohibited. The Act of 1933 was, of course, not before the chancellor at the time of his adjudication and would not apply to acts committed before its passage. In view of this latter legislation, however, we deem this an appropriate occasion to state its effect upon all cases of this character for the future. Our remarks will serve as a timely warning to individuals rendering services of a legal nature without proper authority.

The Act of April 28, 1899, P.L. 117, as amended by the Act of April 24, 1933, P.L. 66, provides in section 1: "From and after the passage of this act, it shall not be lawful for any person, partnership, association, or corporation, in any county in the State of Pennsylvania, to practice law, or to hold himself, herself, or itself out to the public as being entitled to practice law, or use or advertise the title of lawyer, attorney-at-law, attorney and counsellor-at-law, counsellor, or the equivalent in any language, in such manner as to convey the impression that he, she, or it is a practitioner of the law of this or any other State, nation, country or land, or, in any manner, to advertise that he, she, or it, either alone or together with another person or persons, has, owns, conducts, or maintains a law office, or law and collection office of any kind, for the practice of the law of this or any other State, nation, country or land, without having first been duly and regularly admitted to practice law in a court of record of any county in this Commonwealth in accordance with the regularly established rules governing such admissions: Provided, however, That nothing herein contained shall be construed as prohibiting corporations of the first class, acting in good faith and in pursuance of the purposes of their charters, from rendering, through attorneys-at-law, legal service to the members...