In re McCallum

• Decision Date: 19 May 1936
• Docket Number: C. D. 2160.
• Citation: 186 Wash. 312,57 P.2d 1259
• Parties: In re McCALLUM.
• Court: Washington Supreme Court

57 P.2d 1259

186 Wash. 312

In re McCALLUM.

C. D. No. 2160.

Supreme Court of Washington, En Banc.

May 19, 1936

Original proceeding in contempt by the Washington State Bar Association against W. G. McCallum for the unauthorized practice of law.

Action dismissed without prejudice.

H. E T. Herman and Paul F. Schiffner, both of Spokane, and G. W Hamilton, Atty. Gen., amici curiae.

MITCHELL Justice.

This is a proceeding in contempt, original in this court, instituted by the petition of a committee of the Washington State Bar Association organized under the provisions of chapter 94, Laws 1933 (page 397), charging the defendant, W. G. McCallum with having engaged in the unauthorized practice of law. The cause has been submitted upon the petition and the defendant's answer supported in essential particulars by an affidavit in response to a show cause order issued on the filing of the petition.

Substantially the facts are as follows: Defendant has not been admitted to practice law in this state. In 1933, upon the death of his father, he took charge of his father's office at Anacortes, Wash., continuing the real estate and insurance business in which his father had engaged. During the years 1934 and 1935, while thus engaged and according to the usual and common practice in that line of business for many years in that vicinity and territory, he prepared a number of instruments, such as deeds, real estate contracts, mortgages, and satisfactions of mortgages, a part of which work was performed for consideration; and as a notary public he took acknowledgments to such instruments for which he received compensation. He received a letter from a committee of the Washington State Bar Association admonishing him against the practice of law. He consulted the family lawyer and was advised that it was lawful for him to take acknowledgments to instruments as long as he was a notary public; and he understood there would be no wrong in the drafting of instruments like those mentioned, provided no charges were made therefor, He states that, after being so advised, he in good faith prepared some of the instruments referred to in the petition without compensation. Later, he received another letter from a committee of the Washington State Bar Association admonishing him as Before . Upon further consultation with his attorney, he decided, prior to the commencement of these proceedings, that he would desist from writing such instruments with or without reward, since which time he has not prepared or written any.

The petitioners content that, under the law as construed in Paul v. Stanley, 168 Wash. 371, 12 P.2d 401, the defendant did engage in the practice of law, and they insist that, notwithstanding his present attitude, he should be punished for contempt. It may be stated that, in Paul v. Stanley, supra, there was proof that the defendant not only prepared legal instruments, but gave legal advice, while, here, there is neither proof nor admission that this defendant gave any legal advice. However, in order to discuss and decide the question of remedy by proceedings in contempt in this kind of a case, so thoroughly presented by counsel for the respective parties and by those acting solely as friends of the court, we shall assume, without deciding, that the defendant did practice law in the particulars mentioned.

On the threshold, defendant challenges the right of the petitioners to institute these proceedings; the argument being that assuming the Washington State Bar Association would have the right to take such action, through its legally constituted officers, it cannot delegate that power or right to a committee. We cannot agree with defendant in that contention. Defendant's conduct complained of here does not relate to court proceedings or to property or personal rights involved in litigation, so that the contempt charged was constructive and civil in its nature. In such cases, unauthorized practice of law, the court has the power of its own motion to institute proceedings of this kind, or cause them to be instituted. That power in the court includes the power to ratify and approve, as we do in this case with appreciation, the services of attorneys acting as a committee of the state bar association and who at the same time are officers of this court, in filing the petition making the charges.

Rem.Rev.Stat. § 138-14, found in pocket part supplement of volume 2, Laws 1933, p. 401, § 14, provides that any one, not an active member of the state bar, or who, after being disbarred or suspended from membership in the state bar, shall practice law or hold himself out as entitled to practice law, 'shall be guilty of a misdemeanor: Provided, however, Nothing herein contained shall be held to in any way affect the power of the courts to grant injunctive relief or to punish as for contempt.'

Whether or not a statute for such purpose was necessary, this court, which has jurisdiction in the matter of the admission and disciplining of attorneys,...