Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n

• Citation: 135 Colo. 398,312 P.2d 998
• Decision Date: 10 June 1957
• Docket Number: Nos. 17661,CONWAY-BOGUE,s. 17661
• Parties: TheREALTY INVESTMENT COMPANY, a Partnership, and Denver Board of Realtors, a corporation, and The Colorado Association of Real Estate Boards, a corporation, Intervenors, Plaintiffs in Error, v. The DENVER BAR ASSOCIATION, a corporation, The Colorado Bar Association, a corporation; Philip A. Rouse, as chairman of the Committee of the Denver Bar Association on Unauthorized Practice; Lawrence A. Long, as chairman of the Committee of The Colorado Bar Association on Unauthorized Practice; and Wm. Rann Newcomb and Lawrence A. Long, individually, Defendants in Error. VAN SCHAACK & COMPANY, a corporation, and Denver Board of Realtors, a corporation, et al., Intervenors, Plaintiffs in Error, v. The DENVER BAR ASSOCIATION et al., Defendants in Error. John F. BRUNO and Denver Board of Realtors, a corporation, et al., Intervenors, Plaintiffs in Error, v. The DENVER BAR ASSOCIATION et al., Defendants in Error. to 17663.
• Court: Colorado Supreme Court

Page 998

312 P.2d 998

135 Colo. 398

The CONWAY-BOGUE REALTY INVESTMENT COMPANY, a Partnership,

and

Denver Board of Realtors, a corporation, and The Colorado

Association of Real Estate Boards, a corporation, Intervenors, Plaintiffs in Error, v. The DENVER BAR ASSOCIATION, a corporation, The Colorado Bar

Association, a corporation; Philip A. Rouse, as chairman of

the Committee of the Denver Bar Association on Unauthorized

Practice; Lawrence A. Long, as chairman of the Committee of

The Colorado Bar Association on Unauthorized Practice; and

Wm. Rann Newcomb and Lawrence A. Long, individually,

Defendants in Error.

VAN SCHAACK & COMPANY, a corporation, and Denver Board of Realtors, a corporation, et al., Intervenors, Plaintiffs in Error, v. The DENVER BAR ASSOCIATION et al., Defendants in Error.

John F. BRUNO and Denver Board of Realtors, a corporation, et al., Intervenors, Plaintiffs in Error, v. The DENVER BAR ASSOCIATION et al., Defendants in Error.

Nos. 17661 to 17663.

Supreme Court of Colorado, En Banc.

June 10, 1957.

Rehearing Denied Aug. 5, 1957.

Kenneth W. Robinson, Robert D. Charlton, Fairfield & Woods, Charles J. Beise, Charles D. Bromley, Denver, for plaintiffs in error.

Gorsuch, Kirgis, Campbell, Walker & Grover, John L. Ferguson, Denver, for intervenors.

Percy S. Morris, Denver, for defendants in error.

Wm. Rann Newcomb, Denver, pro se.

Lawrence A. Long, Denver, pro se.

Philip A. Rouse, Denver, pro se.

HALL, Justice.

The Denver Bar Association, the Colorado Bar Association, Philip A. Rouse and Lawrence A. Long, chairman respectively of the two associations' committees on unauthorized practice, and Wm. Rann Newcomb and Lawrence A. Long, individually and as licensed attorneys in the State of Colorado, acting in their own behalf and in behalf of all licensed attorneys in the State of Colorado and also on behalf of the public (herein referred to as plaintiffs) in three separate actions sought to enjoin Van Schaack & Company, a corporation, Conway-Bogue Realty Investment Company, a partnership, and John F. Bruno, an individual (herein referred to as defendants) from preparing certain legal documents, giving advice to the parties to such documents as to the legal effect thereof and performing other acts, all of which plaintiffs allege constitute the unlawful practice of law. Pursuant to stipulation The Denver Board of Realtors and the Colorado Association of Real Estate Boards (herein referred to as intervenors) were permitted to intervene as defendants.

The issues made by the pleadings in each case are in substance the same. The evidence presented shows in general that the same alleged objectionable acts were performed by each of the defendants.

The complaints allege that each of the defendants is a licensed real estate broker engaged in the business of real estate broker in the city of Denver and is now, and for many years last past has been, engaged in the unlawful practice of law in the state of Colorado by preparing for others and as a practice (a) instruments relating to and affecting real estate and the title thereto, including receipts and options for purchase, contracts of sale and agreements, deeds, promissory notes, deeds of trust, real estate mortgages, releases of deeds of trust and mortgages, and giving advice to the parties to such instruments as to the legal effect thereof. (b) Leases of real estate, notices terminating tenancy of real estate, demands to pay rent or vacate and other instruments creating, continuing, modifying or terminating the relation of landlord and tenant with respect to real estate and by giving advice to the parties to such instruments as to the legal effect thereof.

Plaintiffs further allege that the defendants make no charge for said services other than broker's commissions; that the defendants are generally not parties to any of said instruments. That the individual plaintiffs, as licensed attorneys, and all other licensed attorneys in the state of Colorado hold and enjoy.

'Privileges and franchises creating property rights in them and that the same have been and are now being encroached upon and damaged by the unlawful practice of law by the defendant in the manner and circumstances hereinbefore set out and that, if such unlawful practice of law by the defendant is not restrained by order of court, the said plaintiffs Wm. Rann Newcomb and Lawrence A. Long, as well as all other attorneys duly licensed to practice law in the State of Colorado and the public generally, will be greatly and irreparably damaged thereby.

'13. That the interests of the public and particularly of those persons owning, buying and selling real estate and those persons making and securing loans on real estate require that the persons who, pursuant to employment, prepare, in the State of Colorado, for others than themselves legal instruments by which real estate and interests therein are conveyed, acquired, encumbered, released and otherwise affected shall be limited to those persons who have been found by the Supreme Court of the State of Colorado to be qualified by their education and moral and ethical qualifications to practice law in said State.'

Defendants in their answers admit doing, as a practice, most of the acts charged by plaintiffs, but allege that they do none of the acts of which complaint is made except in the conduct of their businesses as real estate brokers, and that they prepare instruments only as requested by parties to real estate transactions which they are handling as brokers, and in which they have an interest as brokers; that they only prepare deeds, mortgages, etc. on attorney-approved printed forms, accepted publicly by long custom and usage by the public and by the plaintiffs and used for many years generally throughout the state of Colorado. Defendants deny that their actions constitute the unlawful practice of law and allege that said acts are reasonable and necessary incidents to the proper conduct of their licensed businesses. As a further defense defendants allege that public convenience and necessity requires that defendants be permitted to fill in blanks on approved printed forms in connection with real estate transactions handled by them as brokers.

Intervenors in their answer allege that both are corporations; that there are seventeen real estate boards in the state of Colorado, all members are licensed real estate brokers or licensed salesmen; that the seventeen boards constitute The Colorado Association of Real Estate Boards. Intervenors' answer follows the same tenor as defendants' answers and adds little thereto.

By stipulation the three cases were consolidated for joint hearing before one judge but without merging the actions. Trial was to the Court. The testimony consisting of some 1,500 folios, virtually all of its elicited from the defendants, their officers, agents or employees and the intervenors and their officers, is very detailed and does not deal with any specific situation but rather with the uniform practices of the defendants and other real estate brokers in the state of Colorado. The evidence is not in dispute. It shows conclusively (1) that the defendants as licensed real estate brokers bring together parties to prospective real estate transactions and in connection therewith at the request of one or both parties take the necessary steps to have ready for delivery on commonly used and approved printed forms, completed and executed, receipts and options, deeds, promissory notes, deeds of trust and releases thereof, real estate mortgages and releases thereof, leases of real estate, notices terminating tenancy of real estate, demands to pay rent or vacate, and extensions and modifications of leases. That information necessary for the selection of proper form and filling in, preparing or drafting the same is obtained from the parties, the salesman, employees of the defendants, abstracts, title insurance policies, attorneys' abstract title opinions issued for and directed to the purchaser, a title insurance company or a lending agency. (2) That the defendants on inquiry made by the parties explain the difference between joint tenancy and tenancy in common and explain the distinction between purchase and sale of real estate subject to encumbrances with assumption thereof and without assuming and agreeing to pay the indebtedness. (3) That the defendants do and perform the above acts and services as a practice in carrying on their licensed real estate business and only in connection with deals they are handling; that no charge for such service is made other than the regular and established commissions; that such acts and services are never done or furnished except in connection with a bona fide real estate transaction which they are handling; that they intend to continue such practices unless restrained from so doing. (4) That in virtually all purchases of real estate the purchaser procures title insurance or has the title examined by an attorney of his own choosing. If there is a loan, an attorney, chosen by the lender, examines the title in which event the purchaser is furnished a copy of the attorney's opinion; that the defendants encourage the parties to employ attorneys to prepare the required documents and attend the closings, attorneys at times do prepare the documents and attend the closings but more often tell the defendants to prepare the documents and submit them to the attorney for inspection. In many cases the attorneys to not attend the closing or inspect the documents and in many cases the parties do not have an attorney except to examine the title. (5) That defendants and intervenors offered testimony, admitted over objections of the plaintiffs, to show that in three counties in Colorado there are no lawyers, in each of ten other counties there is only one lawyer, and in each of seven other counties there are only two lawyers; that printed forms of the type described above are available at the offices...