In re Superintendent of Public Instruction.

• Decision Date: 19 September 1940
• Citation: 39D.&C.373
• Parties: In re Superintendent of Public Instruction.
• Court: Pennsylvania District and County Court

Page 373

39 D.&C. 373

In re Superintendent of Public Instruction.

The Judicial Districts of Pennsylvania.

September 19, 1940.

State Government — Department of Public Instruction — Duty to render advice — Administrative Code of April 9, 1929, sec. 1302(d) — Legal advice.

Section 1302(d) of The Administrative Code of April 9, 1929, P.L. 177, requiring the Department of Public Instruction to give advice, explanation, instruction, and information relative to the school laws, was not intended and should not be interpreted to require or authorize the department to furnish legal advice to anyone.

Department of Justice. Opinion to Hon. Francis B. Haas, Superintendent of Public Instruction, Harrisburg, Pa.

RUTTER, Deputy Attorney General, September 19, 1940.

You have requested us to advise you what are the limits of your duties under section 1302(d) of The Administrative Code of April 9, 1929, P.L. 177, 71 PS § 352, with respect to requests for legal advice.The portion of the statute cited makes it the duty of the Department of Public Instruction:

"(d) Whenever required, to give advice, explanations, construction, or information, to the district officers and to citizens relative to the school laws, the duties of school officers, the management of the schools, and all other questions and matters calculated to promote the cause of education . . .".

Your above communication recites that you receive a large number of requests for legal advice, and you have been attempting to answer the same on the theory that you were required so to do under the foregoing statutory provision.Inevitably a major portion of the requests for legal advice received by you is transformed into requests to this department in your behalf for the same advice, so that it may be passed on to the original inquirers when obtained from us.

Section 1302(d) of The Administrative Code, supra, was derived from section 1302 of The Administrative Code of June 7, 1923, P.L. 498.Similar provisions were contained in the School Code of May 18, 1911, P.L. 309 secs. 1006 and 1014, 24 PS §§ 908and909.These sections, pertaining to the Superintendent of Public Instruction, were as follows:

"Section 1006.He shall, whenever required, give advice, explanations, construction, or information to the district officers and to citizens, relative to the school laws, the duties of school officers, the rights and duties of parents, guardians, pupils, and officers, the management of the schools, and all other questions and matters calculated to promote the cause of education."

"Section 1014.He may, when requested, give decisions and interpretations of the school law, which shall be valid and binding in like effect as law until reversed by proper judicial authority."

In Wells Township School District's Directors, 297 Pa. 242(1929), the Supreme Court, in referring to sections 1006and1014 of the School Code of 1911, supra, stated at pages 246 and 247 as follows:

"The sections relative to the superintendent's advice, above quoted, concern administrative matters and have nothing to do with substantive or governmental acts. . . .

"We therefore hold that under the sections above quoted, authority is conferred on the superintendent of public instruction to advise in matters of an administrative nature . . .".

We conclude from this that the legislation under discussion does not enjoin upon you the duty of giving legal advice to anyone, nor did the legislature intend so to do.

The giving of legal advice is the practice of law.The practice of law "includes legal advice and counsel": Eley v. Miller, 7 Ind. App. 529, 535, 34 N.E. 836(1893);Childs et al. v. Smeltzer, 315 Pa. 9(1934).In Shortz et al. v. Farrell, 327 Pa. 81(1937), it was said at page 85:

"Where the application of legal knowledge and technique is required, the activity constitutes such practice [the practice of law] . . . .It is the character of the act and not the place where it is performed which is the decisive factor."

And, we may add, it is the kind of advice given, and not the kind of a person who gives it, lawyer or layman, which determines whether such advice is legal advice.

It is fundamental that a layman may not engage in the practice of law: Childs et al. v. Smeltzer, supra;In re Opinion of the Justices to the Senate, 289 Mass. 607, 194 N.E. 313(1935).

Indeed, the Act of April 28, 1899, P.L. 117, as amended by the Acts of April 17, 1913, P.L. 80, and April 24, 1933, P.L. 66, 17 PS § 1608, makes it unlawful for any person, who has not been admitted to practice in a court of record, to practice law, or to hold himself out to the public as entitled to practice law.

The Act of July 12, 1935, P.L. 708, 17 PS § 1610, makes it a misdemeanor punishable by fine and imprisonment for anyone to practice law without being a member of the bar of a court of...