Grievance Committee of Bar of Fairfield County v. Dacey

• Decision Date: 19 July 1966
• Court: Connecticut Supreme Court
• Parties: , 22 A.L.R.3d 1092 GRIEVANCE COMMITTEE OF the BAR OF FAIRFIELD COUNTY v. Norman F. DACEY et al.

Page 339

222 A.2d 339

154 Conn. 129, 22 A.L.R.3d 1092

GRIEVANCE COMMITTEE OF the BAR OF FAIRFIELD COUNTY v. Norman F. DACEY et al.

Supreme Court of Connecticut.

July 19, 1966.

George A. Saden and Sturges N. Laros, Bridgeport, for appellants (defendants).

David Goldstein, Bridgeport, with whom were Elaine S. Amendola, Bridgeport, and, on the brief, Charles M. Needle and Lawrence W. Kanaga, Bridgeport, for appellee (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, COTTER and RYAN, JJ.

KING, Chief Justice.

This action was brought by the Grievance Committee of the Bar of Fairfield County seeking an injunction to restrain the defendants from engaging in the unauthorized practice of law in violation of General Statutes § 51-88. ¹

The defendants' attempts to secure additions to the finding are largely without merit. Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634. The same may be said of most of their attempts to secure deletions from the finding. With two exceptions, hereinafter discussed, the few changes to which the defendants have shown themselves entitled will be included, insofar as material, in the facts as stated.

The defendant Norman F. Dacey is the president, treasurer, and principal stockholder of the corporate defendant, Norman F. Dacey and Associates, Inc. In this action, no distingtion his been made between the individual defendant and the corporate defendant, and for convenience the individual defendant, only, will hereinafter be mentioned. ²

Dacey's principal business is that of a dealer in the sale of shares in mutual funds, including one known as the Wellington Fund. Dacey also engages in what he terms estate planning, which largely involves his giving advice as to investments and life insurance and does not necessarily involve the sale of shares in the Wellington Fund or in any other mutual fund or the preparation of any will or trust. But if a discussion with a customer as to his financial circumstances reveals that his assets are sufficient to warrant the creation of a trust, Dacey provides him with a thirty-page booklet entitled 'A Modern Plan For Your Tomorrows' with the subtitle 'An Explanation of the Dacey Trust'. The first six pages of the booklet contain general information about the history and use of inter vivos and testamentary trusts, together with some tax information. The balance of the booklet contains a detailed description of the Dacey trust arrangement, consisting of the Dacey trust and the Dacey will, and of the claimed unique advantages of the trust arrangement. Also included are a form for drafting a Dacey trust, a form for drafting an implementing declaration of trust and a form for drafting a Dacey will. In other words, the last twenty-four pages of the blooklet do not contain mere general information but information focused specifically on the Dacey trust arrangement and its component parts, the Dacey trust and the Dacey will, and also, inter alia, information as to the tax consequences flowing from the use of the trust arrangement. The Dacey trust form, as set out in the booklet, is a revocable, inter vivos trust, and the corpus of the trust is usually composed initially of life insurance policies. The record indicates that in connection with the execution of a Dacey trust, the client (and in some cases his wife) usually, if not always, executes a will also. The trust and the will basically follow the trust and will forms in the booklet.

When, after reading the booklet and after conferring with Dacey, a client decides that he wants a Dacey trust, he informs Dacey of the manner in which he wishes his property to be distributed after his death. Thereafter, Dacey supplies a will and a trust, respectively patterned, in general, after the will form and the trust form in the booklet, prepares them by filling in the blanks, and supervises their execution. ³ In some instances, as disclosed by the exhibits, Dacey supplied instruments which materially deviated from the forms in the booklet. Although the booklet stated that the forms contained therein were 'for the guidance of your attorney', so far as this record indicates, none of Dacey's customers consulted an attorney in connection with the preparation and execution of these wills and trusts, nor did Dacey urge them so to do. In some instances, Dacey orally supplemented the advice in the booklet as to the tax consequences of the use of these instruments. See note, 9 A.L.R.2d 797.

Although it did not clearly appear that Dacey ever charged for the preparation of a trust or will, as such, he did provide in the will form that upon the death of the testator the entire estate, except for tangible personal property, should go into the corpus of the trust and that substantially the entire corpus should be invested in shares of the Wellington Fund which should be purchased from Dacey. Under his contract with the Wellington Fund, Dacey received a 6 percent commission on all sales of shares of the Wellington Fund. Thus, as a direct consequence of his preparation of the Dacey trust arrangement, Dacey virtually assured himself of what amounted to a 6 percent sales commission on almost the entire assets of each estate. Compensation may have been frequently deferred, but it was substantial when received. The court found that the money involved in the trust arrangements prepared by Dacey amounted to several million dollars. On most, if not all, of this sum, he would receive a 6 percent commission.

Thus, this case does not involve any problem as to whether the absence of any compensation whatsoever for the preparation of a legal instrument has any bearing on whether its preparation constitutes the practice of law under our statute. The wills and trusts here were certainly not prepared 'as a favor to a friend.' See Grievance Committee of Bar of New Haven County v. Payne, 128 Conn. 325, 329, 22 A.2d 623.

Nor does this case involve any problem as to whether the preparation of a single will or trust, as an isolated occurrence, would constitute the practice of law in violation of our statute. Here, even on the statement in his own brief as to the extent of his activities, Dacey has prepared sixty-five or seventy trusts or wills over a span of thirteen or fourteen years.

With this preliminary statement of the basic facts, we turn to the defendant's principal claims. Further facts will be given where it appears necessary for an understanding of these claims.

I

(a)

One basic claim of the defendant is that a proper construction of § 51-88 of the General Statutes would require that where, as here, there is no claim that Dacey was practicing law in the courts, a violation of the statute can be established only if there is proof that he made it a business to practice law; and that, since the court made no conclusion to this effect, the ultimate conclusion that he violated the statute is thus left without support. The defendant claims that the presence of the comma in § 51-88 before 'in any court of record in this state' shows that the quoted phrase modifies both 'practice law' and 'appear as an attorney'. From this contention, he argues that the statute prohibits the practice of law only in the courts, and that the practice of law outside the courts is prohibited only if it is conducted as a business. Superficially, and as a mere matter of punctuation, this claim seems to have some merit. But it is clearly contrary to the holdings in Grievance Committee of Bar of New Haven County v. Payne, supra, 330, 22 A.2d 623, and in State Bar Assn. of Connecticut v. Connecticut Bank & Trust Co., 145 Conn. 222, 233, 140 A.2d 863. It is also completely refuted, as hereinafter more particularly set forth, by the statutory history and evolution of what is now General Statutes § 51-88.

Until the enactment of chapter 159 of the 1927 Public Acts, the only statute forbidding the practice of law by persons not admitted to the bar was § 5461 of the 1918 Revision of the General Statutes, which provided that the Superior Court should admit as attorneys persons found qualified according to rules adopted by the judges of that court and further provided that 'no other person than an attorney, so admitted, shall plead at the bar of any court of this state, except in his own cause.' Literally, at least, this statute did not forbid the practice of law outside the courts.

The 1927 act did not amend or repeal § 5461, so that the prohibition in that section was left in full effect. But the 1927 act did provide, in material part, that '(n)o person who has not been admitted as an attorney by the superior court under the provisions of section 5461 of the general statutes shall practice or appear as an attorney at law or as attorney and counselor at law for another, in any court of record in this state, or make it a business to practice, as an attorney at law, or as an attorney and counselor at law for another in any such court.'

It is obvious that the 1927 act fell short of being a model of good draftsmanship. For one thing, the first portion added little if anything to § 5461 so far as practice in court was concerned and therefore was repetitious of § 5461. The 1927 act forbade practicing in the court, as well as making it a business to practice, as an attorney at law or as attorney and counselor at law for another in any court of record in this state. Although, as hereinafter pointed out, the second provision is not involved in this case, it was apparently inserted, out of an abundance of caution, to prohibit a person from making it a business to practice in a court even though, for lack of clients or other cause, he did not actually engage in practice in court. The defendant has seized upon this second provision, as it now appears in General Statutes § 51-88, in support of the claim now under discussion.

In the 1930 Revision of the General Statutes, § 5461 of the 1918 Revision was included, without change, as § 5343, while the ...