Freeling v. Tucker, 5384

• Decision Date: 10 June 1930
• Docket Number: 5384
• Parties: S. P. FREELING, Respondent, v. MARIAN I. TUCKER, Appellant
• Court: Idaho Supreme Court

289 P. 85

49 Idaho 475

S. P. FREELING, Respondent, v. MARIAN I. TUCKER, Appellant

No. 5384

Supreme Court of Idaho

June 10, 1930

ATTORNEY AND CLIENT-ADMISSION TO PRACTICE-APPEARANCE OF NONRESIDENT ATTORNEY.

1. Where object of statute requiring license is for public protection, statute will be construed as forbidding conduct of business without license.

2. Legislative power to improve conditions for admission of attorneys does not deprive courts of inherent power to permit attorney from sister state to appear in particular case.

3. Courts usually permit attorneys from sister state to appear in particular case, without obtaining general license.

4. On appeal presumption will be indulged that probate court extended to attorney from sister state right to make appearance in particular case.

5. Attorney from sister state could recover for services rendered in probate court in state, notwithstanding he did not associate himself with resident attorney nor comply with stat- utes (Laws 1923, chap. 211, sec. 17, as amended by Laws 1925, chap. 49, sec. 6; Laws 1925, chaps. 89 90; C. S., sec. 6571, as amended by Laws 1929, chap. 63, sec 3).

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action to recover for professional services. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

A. S Dickinson, for Appellant.

Compensation for legal services cannot be recovered by one who has not been admitted to practice before the court or in the jurisdiction where the services were rendered. (3 Am. & Eng. Ency. of Law, p. 415; Ames v. Gilman, 10 Met. (Mass.) 239; Browne v. Phelps, 211 Mass. 376, 97 N.E. 762; Hittson v. Browne, 3 Colo. 304; Bachman v. O'Reilly, 14 Colo. 433, 24 P. 546; Goldenberg v. Law, 17 N.M. 546, 131 P. 499.)

The plaintiff in this action not having been admitted or paid his license tax in this state, cannot recover for the services set out in his complaint. (Ellis v. Bingham County, 7 Idaho 86 (93) 60 P. 79; Anderson v. Coolin, 27 Idaho 334, 149 P. 286; Ames v. Gilman, supra; Hittson v. Browne, supra; Perkins v. McDuffee, 63 Me. 181.)

It does not save the situation as regards individuals seeking to recover for legal services performed by them, that they have been admitted to practice in a foreign state. If they are unadmitted or unlicensed or have failed to pay the privilege tax, in the jurisdiction where the services are performed, and recovery is sought, relief must be denied. (1923 Sess. Laws, supra; Ames v. Gilman, supra; Perkins v. McDuffee, supra; East St. Louis v. Freels, 17 Ill.App. 339.)

Milton E. Zener and T. C. Coffin, for Respondent.

The mere fact that a person has not been admitted to the practice of law before the court, or in the jurisdiction where the services were rendered does not prevent that person from recovering compensation for legal services. (Tuppela v. Mathison, 291 F. 728; Harland v. Lilienthal, 53 N.Y. 438; Brooks v. Volunteer Harbor No. 4, 233 Mass. 168, 4 A. L. R. 1086, 123 N.E. 511; Miller v. Ballerino, 135 Cal. 566, 67 P. 1046, 68 P. 600.)

The defendant is estopped to plead that her attorney was not duly admitted to the practice of law in a certain court. (Harland v. Lilienthal, supra.)

As a matter of comity between states, the courts of this state have the inherent power to allow attorneys from other states to appear before them regardless of the fact that such attorneys may not have complied with the laws regulating the right to engage in the practice of law. (Anderson v. Coolin, 27 Idaho 334, 149 P. 286; 2 R. C. L. 940; Tuppela v. Mathison, supra.)

BUDGE, J. Givens, C. J., and Lee, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

Respondent brought this action against appellant to recover a sum alleged to be due and unpaid for professional services and expenses incurred in connection therewith as attorney for appellant. On trial of the cause to court and jury, verdict and judgment were returned and entered in favor of respondent. This appeal is from the judgment.

Urged against respondent's recovery in the trial court and the principal contention here is that respondent has not been admitted to practice law in this state and may not therefore maintain an action against appellant growing out of the rendition to her of services as attorney in the state of Idaho.

The evidence shows respondent to be a resident of Oklahoma, to have been engaged in the practice of law for about twenty-eight years, admitted to practice in the courts of Oklahoma, supreme court of Arkansas, circuit court of appeals for the eighth circuit, and United States supreme court. He entered into an agreement with appellant, about February, 1926, outside of the state of Idaho, to represent her interests as one of the heirs of a relative lately deceased in this state, and was also employed by other heirs in the same matter. Respondent made a study of the probate laws of Idaho in connection with this employment, and at least two trips to Idaho, in the course of which he made two appearances in the probate court of Bannock county in connection with his clients' interests in the estate mentioned.

Admitting he has not complied with the statutory rules governing admission of attorneys to practice law in this state and that he did not associate with him a resident attorney at the time of his appearance in the probate court, respondent contends he should not be precluded from enforcing the collection of fees covering the fair value of services rendered.

The practice of the law in this state is recognized as a privilege granted by the state, deemed necessary as a matter of business policy and in the interests of the public against improper and unauthorized practice to be regulated and controlled. (Sess. Laws 1923, chap. 211; Sess. Laws 1925, chaps. 89, 90; Sess. Laws 1929, chaps. 63, 98.) It is unlawful to practice law within this state without having become duly admitted and licensed. (Sess. Laws 1923, chap. 211, sec. 17, as amended by Sess. Laws 1925, chap. 89, sec. 6.) Where the evident object of the statute in requiring a license and imposing a penalty for its violation is for the purpose of protection of the public, it will be construed as forbidding, by implication, the carrying on of the business without a license. (37 C. J. 260, sec. 138, and cases cited under note 56.) By C. S., sec. 6571, as amended by Sess. Laws 1929, chap. 63, sec. 3, the practice of law in any court in this state, except a justice court, without having received a license as attorney and counselor, is a contempt of court.

The power of the...