Grand Rapids Bar Ass'n v. Denkema

• Citation: 290 Mich. 56,287 N.W. 377
• Decision Date: 05 September 1939
• Docket Number: October term, 1938.,No. 44,44
• Parties: GRAND RAPIDS BAR ASS'N et al. v. DENKEMA.
• Court: Supreme Court of Michigan

290 Mich. 56

287 N.W. 377

GRAND RAPIDS BAR ASS'N et al.

v.DENKEMA.

No. 44, October term, 1938.

Supreme Court of Michigan.

Sept. 5, 1939.

Suit by the Grand Rapids Bar Association and others against Henry Denkema, to enjoin defendant from unauthorized practice of law. From an adverse decree, defendant appeals.

Modified and affirmed.

NORTH and WIEST, JJ., dissenting. Appeal from Circuit Court, Kent County, in Chancery; Leonard D. Verdier, Judge.

Argued before the Entire Bench, except BUTZEL, C. J.

Dorr Kuizema and Cornelius Hoffius, both of Grand Rapids, for appellant.

Kenneth P. Hansma, of Grand Rapids (F. Roland Allaben and Benn M. Corwin, both of Grand Rapids, of counsel), for appellees.

Dean W. Kelley, of Lansing, Chairman Unauthorized Practice of Law Committee of State Bar of Michigan (George E. Brand, of Detroit, of counsel), amici curiae.

POTTER, Justice.

Plaintiffs, Grand Rapids Bar Association, F. Roland Allaben and Benn M. Corwin, trustees and members of a committee of the Grand Rapids Bar Association on the unauthorized practice of the law, filed bill of complaint in the circuit court for Kent county against Henry Denkema to enjoin him from doing certain things, and for other relief as defendant's conduct might merit.

Defendant is a resident of the city of Grand Rapids, not a licensed attorney and counselor at law, who has for a number of years been engaged in the business of general insurance and real estate loans under the firm name of Herman N. Dosker & Company. Defendant is not personally a licensed real estate broker and has never sold real estate. He testified:

‘In my business of making loans, I have for a number of years past been examining abstracts and giving opinions on them prior to the bringing of this suit. I have also been in the habit of drawing leases, land contracts, deeds and mortgages for other people. That has been customary with me for a number of years, even while Mr. Dosker (who owned the business before defendant) was alive, as his clerk. I have been in the habit of charging a fee for that work. I have also drawn wills for other people. I haven't done much of that in the last three or four years. I have turned them over to attorneys for drawing. I had been drawing some wills, not always. I have never engaged in that very actively. I have in matters that I was not the administrator, executor or guardian appeared in the probate court and prepared petitions and orders and secured orders for the sale of real estate. I also carried on the general probate of various estates prior to the commencement of this suit. I have dont that quite frequently during the years. I have also given people advice in regard to the probating of estates. I have also advised them in regard to the proper proceeding to either sell or mortgage estate property, very often helping to settle estates.

* * *

‘As far as the drafting of wills, I haven't been drafting any wills in the last few years. People that come to me about wills come to the office and talk to me about how they want their property distributed in case of their death, whom they want appointed executor. I take the notes on it and take the notes to an attorney, and he drafts the will. That has been my practice for the last number of years.

* * *

‘In the matter of drafting leases, deeds and mortgages, that has constituted for some years past a large part of my business,-larger than the making of deeds, mortgages, etc., in connection with the loans. I consider it would be depriving me of a large part of my income if that were taken away from me.

‘It is these men of Holland clientele that have confidence in me that have been coming to our office for forty years or more that I desire to serve mostly, on all manner of business, when they have a house to sell or mortgage or something like that. They would probably make their own sales and come to us for the drawing of the deeds and contracts and mortgages. That has constituted a large part of our business for forty years or more.’

The trial court enjoined defendant from drafting any proposed will, outline or suggestion thereof for another; preparing and filing papers in connection with the probating and appearing in probate court for the purpose of obtaining orders and decrees, except in cases in which he acts as guardian, administrator, executor or trustee; advising persons in connection with the probating of estates; examining and giving opinions on abstracts of title of real property; preparing for others legal instruments incidental to the sale, leasing or mortgaging of real property, except in cases in which he is one of the parties in interest; practicing law and performing legal services for and giving legal advice to others, in Michigan. Defendant appeals from portions of the decree of the trial court, urging that he should be allowed to do some of the things which the trial court enjoined him from doing.

‘Any suitor in any court of this state shall have the right to prosecute or defend his suit, either in his own proper person or by an attorney or agent of his choice.’ Const.1908, art. 2, § 12.

In Cobb v. Judge of Superior Court, 43 Mich. 289, 5 N.W. 309, this court held that by ‘an attorney or agent’ was meant an attorney, and it denied the right of a disbarred attorney to represent the defendant as an agent in a court of record.

‘The word attorney, when used in connection with the proceedings of courts, and the authority to conduct business in them, as well as when employed in a general sense with reference to the transaction of business usually and almost necessarily confided to members of the legal profession, has a fixed and universal signification on which the technical and popular sense unite. The legislator and the judge, the lawyer and the layman, understand it alike, as having reference to a class of persons who are by licene constituted officers of courts of justice, and who are empowered to appear and prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are devolved by law in consequence.’ People ex rel. Hughes v. May, 3 Mich. 598.

In Detroit Bar Association v. Trust Co., 282 Mich. 216, 276 N.W. 365, 366, quotation was made from Hightower v. Detroit Edison Co., 262 Mich. 1, 247 N.W. 97, 86 A.L.R. 509, as follows:

‘In a case in court, determination of the steps to be taken and control of procedure and proceedings to enforce the remedy are exclusive functions of an attorney-at-law, where a party does not appear in his own person. * * *

‘The rights and duties arising out of the relationship of attorney and client are not measured by the yardstick of commercial or trade transactions. The relation is purely personal. The lawyer owes to his client undivided allegiance. There is no place in the relationship for its establishment by a middleman, having an interest in the res or control of the procedure.’

‘Counsel and advice, the drawing of agreements, the organization of corporations and preparing papers connected therewith, the drafting of legal documents of all kinds, including wills, are activities which have long been classed as law practice.’ People v. Alfani, 227 N.Y. 334, 125 N.E. 671, 673.

‘The practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings, and other papers incident to actions and special proceedings, and the management of such actions and proceedings on behalf of clients before judges and courts, and, in addition, conveyancing, the preparation of legal instruments of all kinds, and, in general, all advice to clients, and all action taken for them in matters connected with the law.’ In re Duncan, 83 S.C. 186, 65 S.E. 210, 211, 24 L.R.A.,N.S., 750, 18 Ann.Cas. 657.

‘The ‘practice’ of the law is the doing or performing services in a court of justice, in any matter pending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be pending in a court.' Eley v. Miller, 7 Ind.App. 529, 34 N.E. 836, 837.

‘Persons acting professionally in legal formalities, negotiations or proceedings by the warrant or authority of their clients may be regarded as attorneys at law within the meaning of that designation as used in this country.’ National Savings Bank v. Ward, 100 U.S. 195, 199, 25 L.Ed. 621.

The practice of law is not confined to the practice in courts of the State, but it includes the preparation of pleadings and other papers incident to any action or special proceeding in any court or other judicial body, conveyancing, the preparation of all legal instruments of all kinds whereby a legal right is secured, the rendering of opinions as to the validity or invalidity of the title to real estate or personal property, the giving of legal advice in any action taken for others in any matter connected with the law. Boykin v. Hopkins, 174 Ga. 511, 162 S.E. 796.

‘Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation.’ Opinion of the Justices, 289 Mass. 607, 194 N.E. 313, 317.

The statute (3 Comp.Laws 1929, § 13587) provides: ‘It shall be unlawful for any person who is not a regularly licensed attorney and counselor of this State * * * to practice law or to engage in the law business.’

It would be extremely difficult to...