In re Opinion of the Justices

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 194 N.E. 313,289 Mass. 607
• Parties: In re OPINION OF THE JUSTICES.
• Decision Date: 30 January 1935

289 Mass. 607
194 N.E. 313

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

Jan. 30, 1935.

Opinion of the Justices to the Senate.

[289 Mass. 607]

[194 N.E. 314]

On June 29, 1934, the Senate adopted the following order:

Whereas, There is pending before the Senate a bill entitled ‘An Act relative to the unauthorized practice of law and prohibiting certain acts and practices' printed as House document numbered fourteen hundred and thirty-three, a copy whereof is hereto annexed; and

[289 Mass. 608]Whereas, Doubt exists as to whether certain provisions of said bill do not invade the judicial province in violation of Article XXX of Part the First of the Constitution of the Commonwealth or otherwise violate the provisions of the Constitution; therefore be it

Ordered, That the opinions of the Honorable the Justices of the Supreme Judicial Court be required by the Senate on the following important questions of law:--

1. In so far as the words ‘practice of law’ relate to the performance of the functions of an attorney or counsellor at law before the courts, is it constitutionally competent for the General Court to enact legislation forbidding or permitting such practice by corporations or associations or by individuals other than members of the bar of the Commonwealth?

2. In so far as said words relate to the performance of the customary functions of an attorney or counsellor at law which do not involve appearance before the courts, is it constitutionally competent for the General Court to enact legislation forbidding or permitting such practice by corporations or associations

[194 N.E. 315]

or by individuals other than members of the bar of the Commonwealth?

3. To what extent are the forbidding or permitting of the exercise of the rights and privileges set forth in questions 1 and 2 and their regulation judicial rather than legislative functions?

4. Is there any phase of the practice of law set forth in said pending bill to which or from which the General Court may be legislation admit or debar corporations or associations or individuals who are nonmembers of the bar of this Commonwealth?

5. Is it constitutionally competent for the General Court, in the form of exceptions to general provisions making it unlawful for corporations or associations to practice law in this Commonwealth, to grant special powers and privileges to various corporations and associations, substantially as set forth in sections 1 and 2 of said bill?

[289 Mass. 609]Sections 1 and 2 of the proposed act read as follows:

‘Section 1. Chapter two hundred and twenty-one of the General Laws is hereby amended by striking out section forty-six, as appearing in the Tercentenary edition, and inserting in place thereof the following:--

‘Section 46. It shall be unlawful for any individual or association of individuals, other than members, in good standing, of the bar of this commonwealth to practice law, or by word, sign, letter, advertisement, or otherwise, to hold out himself or themselves as competent, qualified or able to practice law; provided, that a member of the bar, in good standing, of any other state may appear, by permission of the court, as attorney or counsellor in any case pending therein; and provided, further, that nothing herein shall be construed as prohibiting an individual from maintaining, conducting or defending in his own behalf, in any court of this commonwealth, an action to which he is a party, or from preparing legal documents or instruments for his own use or for use in connection with matters in which he had a direct personal interest as a party thereto; and provided, further, that nothing herein shall prevent any individual from appearing before the industrial accident board in behalf of any injured person.

‘It shall be unlawful for any corporation to practice or appear as an attorney for any person other than itself in any court in the commonwealth, or before any judicial body or the industrial accident board or the board of tax appeals; or hold itself out to the public or advertise as being entitled to practice law, and no corporation shall organize corporations, or draw agreements or other legal documents not relating to its lawful business, or draw wills, or irrevocable trust instruments, or practice law, or give legal advice, or hold itself out in any manner as being entitled to do any of the foregoing acts, by or through any person orally or by advertisement, letter or circular; provided, that the foregoing shall not prevent a corporation from employing an attorney in regard to its own affairs or in any litigation to which it is or may be a party; and [289 Mass. 610]provided, further, that the foregoing shall not prevent any bank or trust company lawfully doing business in the commonwealth from furnishing to persons with whom it may deal or who may apply for the same, through its officers or agents, legal information or legal advice with respect to investments, taxation, stocks, bonds, notes or other securities or property.

‘The superior court shall have jurisdiction in equity, upon petition of any bar association within this commonwealth, or of any member of the bar of this commonwealth, to enjoin any person, association of persons or corporation from violating any provision of this section.

‘Section 2. Said chapter two hundred and twenty-one is hereby further amended by striking out section forty-seven, as so appearing, and inserting in place thereof the following:--

‘Section 47. The preceding section shall not apply to any public service corporations or any corporation lawfully engaged in the business of insurance or suretyship, or its agents or employees, in carrying on its lawful business, or to any corporation lawfully engaged in the examination and insuring of titles to real property, or to any individual engaged in the examination of such titles but where in the exercise of such business, such corporation or individual shall be called upon to perform acts heretofore performed by attorneys, such acts shall be performed through agents or employees who shall be members of the bar in good standing, or to any corporation lawfully engaged in assisting attorneys to organize corporations, or organized for and lawfully engaged in benevolent or charitable purposes, or organized under the authority of the...