Horne v. Bridwell, 3822

• Decision Date: 21 January 1952
• Docket Number: No. 3822,3822
• Court: Virginia Supreme Court
• Parties: RICHARD C. HORNE, JR. v. BUFORD M. BRIDWELL, ET. AL. Record

Page 535

68 S.E.2d 535

193 Va. 381

RICHARD C. HORNE, JR. v. BUFORD M. BRIDWELL, ET. AL.

Record No. 3822.

Supreme Court of Appeals of Virginia

January 21, 1952.

Denny, Valentine & Davenport and Howard C. Vick, for the plaintiff in error.

John S. Barbour, Christopher B. Garnett and James Keith, for the defendants in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

The plaintiff in error, Horne, plaintiff below, was indicted by a grand jury of Fairfax county on May 17, 1948, for illegally practicing law before the circuit court of that county. On motion of Horne this indictment was quashed and dismissed. The Commonwealth's attorney said this was done on the ground that the statute of limitations had run and also for duplicity in the indictment. Horne then brought this action against Bridwell and Pickett, defendants in error, alleging that they procured the indictment maliciously and without probable cause. There was a verdict for the plaintiff for $10,000, which the trial court set aside for the reason, as stated in its written opinion, that the plaintiff was guilty of the offense for which he had been indicted. The plaintiff assigns error to that ruling, while the defendants assign cross-error to the holdings that the issues of probable cause and advice of counsel were jury questions under the evidence.

The occasion of the alleged illegal practice of law by the plaintiff was in connection with a chancery suit which had been instituted by the treasurer of The Falls Church to surcharge and falsify the accounts of Bridwell as executor of the will of a Mrs. Russell, in which the church had been named as residuary legatee. When the church learned of the legacy it appointed Horne, then its senior warden, a 'committee of one' to 'keep an eye' on the administration of the estate. Later, on the recommendation of Horne, counsel were appointed to represent the church. They were Robert M. Gray, a practicing attorney in Washington, D.C., and formerly a member of the Bar of this State, and James H. Simmonds, a practicing attorney in Arlington in this State. That suit resulted in some additional items of comparatively small amount being charged to the executor, but in a finding that the executor had not been guilty of any misconduct, fraud or bad faith.

Two days after the suit to surcharge and falsify was instituted, Bridwell, through the defendant Pickett as his attorney, brought an action against the church, its rector, treasurer, vestrymen and Horne for damages for slander and libel growing out of the charges against Bridwell. Demurrers were filed to that action which were argued on February 28, 1947, Horne arguing his own and Gray and Simmonds for the other defendants. The demurrers were sustained and that action was dismissed.

On May 14, 1947, the suit to surcharge and falsify came up for hearing on its merits. The hearing was ore tenus before Judge Burnett Miller, from another circuit, who had been designated to hear the case. The complainant in that suit had previously asked Gray, one of his attorneys, to let Horne handle the case as Horne had made most of the investigation and done most of the work. That was agreed and Horne, who was not a party to that suit, examined witnesses, participated in preparing and filing a brief and signed the decree.

On the morning of May 14, Simmonds, the resident attorney, asked the court to excuse him, which was done, and he did not further participate in the case. He said that was because the situation had become embarrassing to him due to Horne's attitude toward Bridwell, to the point of charging him with misappropriation of funds, and he, Simmonds, did not want to be present when Horne examined the witnesses. He did not formally introduce Horne to the court as a foreign attorney, but he said he was confident the judge knew it, either from the proceedings of February 28 or his telling him that morning; and that the judge consented to Horne and Gray handling the proceedings on that day. Judge Miller was unable to recall what had occurred.

The matters of who may practice law in this State, how those practicing shall qualify before the court, and the penalty for practicing without authority are regulated by statutes. The statutes in effect in 1947, when the offense was alleged to have been committed, were what are now sections 54-42, 54-43 and 54-44 of the Code of 1950. * It is not questioned that the plaintiff practiced law in this State in connection with the chancery suit to surcharge and falsify Bridwell's accounts as executor. He then lived in Falls Church, in Virginia, where he had been a voter since 1938. He was not licensed to practice law under the laws of this State. He had no right to act as attorney in the chancery suit unless he was 'duly authorized and practicing as counsel or attorney at law' in one of the other States or in the District of Columbia. § 54-42. If he was 'duly authorized and practicing' in another State or in the District, it was his duty, before practicing in the Circuit Court of Fairfax county, to produce to that court satisfactory evidence of his being 'so * * * authorized' and to take an oath that he would 'honestly demean himself in the practice of law, and to the best of his ability execute his office of attorney at law.' § 54-43. These were conditions precedent to his exercise of the privilege and courtesy accorded him by Virginia law. Those conditions were not matters of empty form. They were of the spirit of the rules adopted to guide the Virginia lawyer in his relation to his client, as thus expressed:

'The gravity of the consequences to society resulting from abuses of this relation demands that those assuming to advise or to represent others shall be properly trained and educated, and be subject to a peculiar discipline. That fact, and the necessity for protection of society in its affairs and in the ordered proceedings of its tribunals, have developed the principles which serve to define the practice of law. ' (Rules for Integration of the Virginia State Bar, 174 Va. xviii).

If the plaintiff did not observe those conditions, he violated the law. Admittedly he did not take the required oath and there is no evidence that he produced any evidence of being so authorized. His evidence is only to the effect that Judge Miller knew he was a foreign attorney and consented to his handling the proceedings.

In a long and sarcastic letter written by the plaintiff some months later to the secretary of the Virginia State Bar, unresponsive to the simple inquiry of that official as to whether he was a member of some other Bar, he said: 'True, there was no formal introduction to the Court then, but that was hardly necessary as we had both met the Judge on Feb. 28th. ' It was the duty of the plaintiff to comply with the law, and the failure of the judge to inquire whether he had done so did not relieve the plaintiff of that duty.

The main issue here is whether his demonstrated violation of the law was a misdemeanor under section 54-44, providing that 'If any person shall practice law without being duly authorized or licensed, he shall be guilty of a misdemeanor. ' The trial court held that the present statute 'obviously sought to make any omission punishable under the statute. Certainly the plaintiff is guilty of not only one omission, but the omission of all of the formalities and requirements of the law.'

The plaintiff insists that the penalty section, 54-44, does not have so broad an application, but that in terms it makes guilty of a misdemeanor only a person who 'shall practice law without being duly authorized or licensed. ' He argues that his only omission was the taking of the oath and that section 54-44 does not make either that omission, or the omission of the other requirements of section 54-43, a crime. In support he sets forth in his brief the history of these statutes.

Sections 54-42, 54-43 and 54-44 of the 1950 Code correspond to sections 3192-3-4 of the Code of 1887. Section 3194 of the 1887 Code was as follows: 'Sec. 3194. penalty for practicing without being licensed and qualified; when penalty not incurred. -- If any person shall practice law in any court of this state, without being so licensed or authorized, or without taking the oaths required, he shall forfeit one hundred and fifty dollars for each case in which he shall appear as attorney, one-half whereof shall be to the informer; * * *.'

That section became section 3422 in the Code 1919, changed only to insert 'for compensation' and to omit 'any court of' after the word 'law' in the first line of the statute. Before that section became effective it was amended by Acts 1918, page 221, but only to change the penalty to a fine of not less than ten nor more than fifty dollars and omitting compensation to the informer. By Acts 1922, page 657, section 3422 was again amended, but only to increase the amount of the fine.

Through the various changes up to 1938 the penalty provided was for practicing law 'without being so licensed or authorized, or without taking the oaths required. ' By Acts 1938, page 772, section 3422 was again amended, changing it to the language that now appears as section 54-44. That amendment changed the title of the statute from 'Penalty for practicing without being licensed and qualified,' to 'Penalty for practicing without being authorized or licensed;' changed the phrase 'without being so licensed or authorized' to 'without being duly authorized or licensed' and omitted entirely the phrase 'or without taking the oaths required.'

Defendants argue that the real purpose of these amendments was not to restrict but to extend the coverage of this penalty section and make it apply to all persons practicing law, whether in or out of court, without being duly authorized or licensed; that the oath...