In re Contempt Proceedings of Brainard, 6162

Citation55 Idaho 153,39 P.2d 769
Decision Date28 December 1934
Docket Number6162
PartiesIn re Contempt Proceedings of E. C. S. BRAINARD. E. A. OWEN, as President of the Board of Bar Commissioners of the Idaho State Bar, Petitioner
CourtUnited States State Supreme Court of Idaho

ATTORNEY AND CLIENT-PRACTICE OF LAW-CONTEMPT OF COURT-STATUTES-CONSTITUTIONAL LAW.

1. Former probate judge who, for compensation, without being admitted to practice law and without paying license fees advised persons in probate matters and prepared and filed papers in connection therewith, and prepared articles of incorporation for corporate organizers, which work was necessary to clear titles in loan transactions, held to have engaged in "practice of law," rendering him guilty of contempt of Supreme Court, though he did not sign the papers and pleadings as attorney, and he did not accept legal employment except from persons who had already enlisted his services in business matters connected with loans (I. C. A sec. 3-104).

2. In contempt proceeding in Supreme Court against former probate judge who, without being admitted to practice or paying license fees, had engaged in practice of law, where constitutionality of contempt statute was not questioned by parties, court was not required of its own motion to consider and pass on such question (I. C. A., sec. 3-104).

3. Court will not pass on constitutionality of statute unless it is absolutely necessary to do so in order to determine merits of case in which constitutionality of such statute has been drawn in question.

4. Party cannot question constitutionality of act unless he is injuriously affected thereby, and then only when he has properly challenged the law.

Original proceedings on petition for order to show cause why defendant E. C. S. Brainard should not be punished for contempt of court. Defendant found guilty of contempt.

Jess Hawley and Dean Driscoll, for Petitioner.

E. C S. Brainard appears in his own proper person, and George Donart, as his attorney.

No briefs are filed by the parties.

WERNETTE, J. Budge, C. J., and Givens and Holden, JJ., concur. Morgan, J., dissents.

OPINION

WERNETTE, J.

These proceedings were instituted by direction of the board of bar commissioners of the state of Idaho, for the purpose of securing an order requiring E. C. S. Brainard to show cause why he should not be punished for contempt of court in that he for several years last past had been practicing law and holding himself out as qualified to practice law in the state, without having been admitted to practice by the Supreme Court of the state of Idaho, and without paying the license fees now prescribed by law for the practice of law.

Defendant Brainard filed an answer to the petition and affidavit, and thereafter a stipulation of facts, signed by Mr. Brainard and the attorneys for the respective parties, was filed, which in detail set forth the activities of Mr. Brainard, which were substantially as charged in the petition and affidavit in support thereof.

The stipulation sets forth, and the defendant thereby admits, the following facts:

"E. C. S. Brainard is a resident of Payette, Payette County, State of Idaho, and has been so for the past twenty years.

"That for five years he was probate judge of said county.

"That he has at various times since the first day of January, 1931, advised persons in matters of estates and has prepared various types of papers and pleadings for the purpose of securing the probating of estates in the Probate Court of Payette County, Idaho; that while he has never set forth his name on any of said papers as an attorney, he has, as a matter of fact, actually done all the legal work in connection with the probating of estates as ordinarily done by an attorney at law; that he has accepted compensation for his work in connection with the probating of estates; that he has personally appeared in the probate court filing papers in connection with probate matters pending in the Probate Court of Payette County, Idaho; that specific instances of his practice in this regard are as follows:

"That he prepared in 1931 all the legal papers and petitions necessary for Rachel Gauer to probate the estate of Charles A. Gauer, deceased, and did personally file the said papers with the probate court of Payette County, Idaho, and did do all things necessary to secure the probating of said estate; that while he did not actually sign any of the papers as attorney for the administratrix, he did actually prepare the same and did advise the administratrix all through the course of probate proceedings, and for his advice and services in connection with the probate of said estate, did charge and receive the sum of $ 75.00.

"That in January, 1932, he prepared the papers necessary for L. E. Keeler, the surviving husband of Ora M. Keeler, to procure a decree of record title to community property, and did all things necessary to secure from the Probate Court of Payette County a decree under the provisions of Section 14-114, I. C. A.; that for his services in this connection he was paid the sum of $ 25.00 by the said L. E. Keeler.

"That he acted similarly in April, 1932, on behalf of C. F. Draper, as surviving husband of Eva E. Draper and did charge for his services the sum of $ 25.00.

"That beginning in March, 1933, he prepared necessary papers for the probate of the estate of F. W. Griep and received as his compensation therefor the sum of $ 100.00 for preparation of papers in the said estate and advice in connection with the probate of said estate.

"That he did procure for A. L. McFarland, the surviving husband of Sarah E. McFarland, a decree of record title to the community property under the provisions of Section 14-114, I. C. A., in the Probate Court of Payette County, Idaho, and did charge for his services in said matter the sum of $ 25.00.

"That he similarly appeared as attorney for E. L. Martin in the matter of securing a decree of record title to the community property of his deceased wife, Eunice M. Martin.

"That in addition to the specific instances above mentioned, the said E. C. S. Brainard has prepared articles of incorporation during the past three years for various corporate organizers for whom he was doing accounting work and that he did not charge a specific fee for preparing articles of incorporation, but did include his charge for said services in his charge as an accountant.

"That at various times during the past three years, the said E. C. S. Brainard has advised persons in connection with probate matters and has prepared various and sundry documents and papers in connection therewith, in addition to those specific instances hereinbefore mentioned and has regularly charged for his said services at the rate of $ 2.50 per hour for the time actually consumed in the preparation of said documents and papers.

"That all the work he has done in the matter of closing estates and other legal work has been done by reason of the fact that it became necessary to perform this probate work to clear titles in connection with refinancing loans against the property or in connection with obtaining loans upon property; that he did not at any time accept legal employment in probate matters from any person except someone who had already enlisted his services in some business matter generally in connection with the loan.

"That the said E. C. S. Brainard has never been admitted to practice law in any court in the State of Idaho or elsewhere, and during the past three years and at all times covered by this stipulation has not been admitted to practice law in the Supreme Court of the State of Idaho, and has not paid the license fees required and prescribed by law for one engaged in the practice of law."

With these undisputed facts before us, there is but one conclusion to be reached--that the defendant has been actually engaged in practicing law. The particular reason or necessity for having the legal work performed is not a justification to practice law without being admitted, nor does the fact that Brainard did not sign the papers and pleadings as an attorney alter the situation. The work and services which he rendered to his clients were that of an attorney engaged in the practice and constituted the practice of law, as much so as if he had signed all the pleadings and papers as an attorney. (In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157, 73 A. L. R. 1323; In re Bailey, 50 Mont. 365, 146 P. 1101, Ann. Cas. 1917B 1198; People ex rel. Colorado Bar Assn. v. Taylor, 56 Colo. 441, 138 P. 762; People ex rel. Colorado Bar Assn. v. Erbaugh, 42...

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