Hulse v. Criger

Decision Date14 April 1952
Docket NumberNo. 42810,42810
Citation363 Mo. 26,247 S.W.2d 855
PartiesHULSE et al. v. CRIGER.
CourtMissouri Supreme Court

P. L. Edwards, Kansas City, Harry Gershenson, St. Louis, James A. Finch, Jr., Cape Girardeau, for informants.

Albert Copaken and Sylvia Copaken, Kansas City, for respondent.

Leonard E. Martin, St. Louis, Chairman, Unauthorized Practice of Law Committee of Bar Ass'n of St. Louis, and Theodore E. Beckemeier, St. Louis, for Bar Ass'n of St. Louis, amicus curiae.

Joseph Boxerman, St. Louis, for St. Louis Real Estate Board, amicus curiae.

M. J. Doherty and Albert Miller, St. Louis, amici curiae.

HYDE, Judge.

This is an information by the Advisory Committee of the Missouri Bar Administration alleging that C. L. Criger, a licensed real estate broker of Kansas City, has engaged in the unlawful practice of law, as a practice and as a business. Informants seek to have respondent enjoined from practicing law and punished for contempt of this Court. They move for judgment on the pleadings which are the information and answer.

The acts alleged to constitute such practice which respondent admits in his answer are as follows: 'Respondent admits that in numerous transactions in the general and ordinary course of his business as a licensed real estate broker and incidental thereto, respondent, either in his own person or through his agents, servants and employees, has prepared for persons other than himself, many instruments relating to and affecting real estate and the title to real estate, including deeds conveying real estate, deeds of trust and mortgages encumbering real estate, promissory notes secured by such deeds of trust or mortgages; leases of real estate, options for purchase, contracts of sale and agreements.'

Respondent admits he has not been licensed to practice law but denies that he 'has been engaged in the unlawful practice of law or doing law business'; and 'denies that he has given legal advice to the parties to such instruments as to the legal effect thereof.' Respondent also admits that 'in his own person, or through his agents, servants and employees, customarily in each instance conferred with one or more of the parties to the transaction or their agents; elicited in such conference what were considered to be the pertinent facts; in the light of the information elicited and the information contained in the abstract of title selected and determined upon the blank form or forms to be used and then prepared one or more of the instruments mentioned by filling in such form or forms in such manner as the respondent himself or the agent, servant or employee of the respondent preparing the same in his or her judgment, deemed proper in the light of the information elicited in such conference and the information contained in the abstract of title.'

Respondent also admits that he was not a party to any of the instruments so prepared by him; that his usual connection (but he does not claim his exclusive connection) with transactions, as a part of which said instruments were prepared, was in consummation or closing of transactions procured by him as a real estate broker and for which he received commissions for his services as such; and that 'in almost all the transactions in which the respondent and his agents, servants or employees prepared legal instruments in the manner and circumstances hereinbefore mentioned, the respondent had been employed as a real estate broker to procure purchasers for the properties involved in the transactions and had procured purchasers for such properties and had become entitled to and was paid commissions for his services as a real estate broker in procuring such purchasers.' Respondent also admitted he charged one or both of the parties for his preparation of these instruments but stated he made only nominal charges for mere clerical services. In his brief he says that these charges were for the cost of the forms used and his clerical help.

Informants contend that what respondent admits doing is the practice of law and that a test as to whether the particular transaction or form is simple or complex is not a satisfactory or logical solution. Amicus Curiae briefs of Bar Associations take the same position.

Respondent contends that his admitted acts were properly the business of a real estate broker which he had a right and even a duty to do. He says that preparing and completing instruments necessary to the closing of real estate transactions is one of the most important services performed by realtors, because the statute of frauds requires written instruments in real estate transactions. He also relies upon the Missouri Real Estate License Law, RSMo 1949, Chap. 339, V.A.M.S., as authorizing 'all the things real estate brokers were then and had been customarily doing.' Respondent further says that to deny him the right to do these things would violate the equal protection and due process clauses of the state and federal constitutions, Secs. 2 and 10, Art. 1, Const. of Mo., V.A.M.S., Sec. 1, Art. 14, Const. of U.S., and the provisions of Art. 2 of the Const. of Mo. providing for the distribution of powers among the three departments of the state government. Briefs amicus curiae for the St. Louis Real Estate Board and the Missouri Real Estate Association disclaim any right to make a separate charge, or to prepare instruments affecting rights for persons not represented in a real estate transaction, but do argue for the right of a real estate broker to prepare standardized instruments incident to the sale or lease of real estate in transactions in which he acts as broker.

The controlling principles are: Only the judicial department of the government has power to license persons to practice law. 'Statutes may aid by providing machinery and criminal penalties, but may not extend the privilege of practising law to persons not admitted to practice by the judicial department.' Lowell Bar Association v. Loeb, 315 Mass. 176, 52 N.E.2d 27, 30; Opinion of the Justices, 289 Mass. 607, 194 N.E. 313; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; In re Richards, 333 Mo. 907, 63 S.W.2d 672. Thus the judicial department is necessarily the sole arbiter of what constitutes the practice of law. In this connection it should be noted that Sec. 339.010 of the Real Estate License Law specifically provides: 'nor shall this chapter be construed to include in any way the service rendered by an attorney at law in the performance of his duties as such'. The duty of this Court is not to protect the Bar from competition but to protect the public from being advised or represented in legal matters by incompetent or unreliable persons. Our purpose must be to make sure 'that legal services required by the public, and assential to the administration of justice, will be rendered by those who have been found by investigation to be properly prepared to do so by conforming to strict educational standards, and who demonstrate that they have the character to conform to higher standards of ethical conduct than are ordinarily considered necessary in business relations which do not involve the same fiduciary and confidential relationships.' Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742, 112 S.W.2d 345, 346. These are the reasons for our high standards of admission to the Bar. Furthermore, for these same reasons, prevention of persons, not admitted to the Bar, from acts amounting to the practice of law does not violate the constitutional provisions invoked.

This question of real estate brokers has been considered in several states. In Cowern v. Nelson, 207 Minn. 642, 290 N.W. 795, 797, an injunction against a realtor was modified to eliminate 'any restraint on the defendant, when acting as a broker for the parties, or as agent for one of them, to a sale or trade or lease of property or to a loan, from drawing or assisting in drawing without charge therefor such papers as may be incident to such transaction.' (Our italics.) The Court said: 'It is the duty of this court so to regulate the practice of law and to restrain such practice by laymen in a common sense way in order to protect primarily the interest of the public and not to hamper and burden such interest with impractical technical restraints no matter how well supported such restraint may be from the standpoint of pure logic. Viewing the problem before us in that light, we do not think it would be in the interest of the public welfare to restrain brokers from drafting the ordinary instruments necessary to effectuate the closing of the ordinary real estate transaction in which they are acting. We do not think the possible harm which might come to the public from the rare instances of defective conveyances in such transactions is sufficient to outweigh the great public inconvenience which would follow if it were necessary to call in a lawyer to draft these simple instruments.'

In Childs v. Smeltzer, 315 Pa. 9, 171 A. 883, 885, the Court held that a person, who was a stenographer and notary public, was illegally practicing law in drawing a great variety of legal instruments including wills. However, the Court limited its decision as follows: 'A number of realty boards have filed briefs as amici curiae in which they envisage dire results to real estate brokers if laymen are prohibited from drafting legal instruments. There can be no objection to the preparation of deeds and mortgages or other contracts by such brokers so long as the papers involved pertain to and grow out of their business transactions and are intimately connected therewith. The drafting and execution of legal instruments is a necessary concomitant of many businesses, and connot be considered unlawful. Such practice only falls within the prohibition of the act when the documents are drawn in relation to matters in no manner connected with the immediate business of the person preparing them, and when the person so drafting them is not a member of the bar and...

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