In re Opinion of Justices

• Decision Date: 30 January 1935
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 607

194 N.E. 313

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

January 30, 1935

Opinion of the Justices to the Senate.

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

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 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?

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 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 commonwealth for the purpose of assisting persons without means in the pursuit of any civil remedy, or to any automobile club or association or labor organization furnishing the services of an attorney or attorneys to its members; nor shall said section prohibit accountants from giving advice, and preparing reports, tax returns or other documents necessary or incident to the practice of their profession, or prohibit accountants from appearing before the board of tax appeals or any other body that so permits by its rules, or prohibit any newspaper from answering inquiries through its columns, or prohibit any corporation from providing legal advice or assistance to its employees or its subsidiaries or companies or associations under its operation or management but such legal advice shall be furnished through agents or employees of such corporation who shall be members of the bar in good standing, or prohibit any corporation or partnership lawfully engaged in the business of conducting a mercantile or collection agency or adjustment bureau from employing an attorney to give legal advice concerning, or to prosecute actions in court relating to, the adjustment or collection of debts and accounts, only, nor shall said section prohibit any persons from drawing agreements, leases, deeds or mortgages relating to real estate.’

The order was transmitted to the Justices on July 5, 1934, and on January 30, 1935, they returned the following answers:

To The Honorable the Senate of the Commonwealth of Massachusetts.

The Justices of the Supreme Judicial Court have considered the questions propounded by an order adopted on June 29, 1934, and transmitted on July 5, 1934, after the prorogation of the General Court. Copy of the order is hereto annexed. The following opinion is respectfully submitted:

The questions relate to a pending bill entitled ‘ An Act relative to the unauthorized practice of law and prohibiting certain acts and practices.’ The proposed bill by sections 1 and 2 revises respectively sections 46 and 47 of G. L. (Ter. Ed.) c. 221, by section 3 repeals section 49 of G. L. (Ter. Ed.) c. 221, and by section 4 enacts expressly that nothing in the act shall be construed as a limitation upon the power of the courts to decide what acts constitute the practice of law, or to enjoin and punish as a contempt of court unlawful practices of the law.

It is inherent in the judicial department of government under the Constitution to control the practice of the law, the admission to the bar of persons found qualified to act as attorneys at law and the removal from that position of those once admitted and found to be unfaithful to their trust. While the judicial department cannot...