In re Thibodeau

• Decision Date: 11 September 1936
• Citation: 295 Mass. 374,3 N.E.2d 749
• Parties: In re THIBODEAU.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 374

3 N.E.2d 749

In re THIBODEAU.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 11, 1936.

Report from Supreme Judicial Court, Suffolk County.

Proceedings in the matter of the petition of the Attorney General for consideration of alleged improper practices of William Thibodeau, doing business as the Automobile Legal Association.

Petition dismissed.M. M. Goldman, Asst. Atty. Gen., for the Attorney General.

L. Withington and E. O. Proctor, both of Boston, for respondent.

QUA, Justice.

This is a petition by the Attorney General informing the court as to certain alleged improper practices of the respondent, who is a duly enrolled attorney at law, and praying for an inquiry with respect thereto and for such orders of discipline and restraint as the court shall deem proper. Disbarment is not sought.

The case was tried before a single justice of this court, who found all the material facts and reported the case with the statement that unless the facts found required the conclusion as matter of law that the respondent was practicing law improperly,he did not draw from them such conclusion as matter of fact. The report also states that it was not contended that the proceeding was brought under St.1935, c. 346, and that ‘The case was tried on the theory that it was a proceeding at common law based upon the inherent power of the court to deal with the conduct of members of the bar in their practice of law.’ In re Randall, Petitioner, 11 Allen, 473, 479;Bar Association of Boston v. Casey, 211 Mass. 187, 193, 97 N.E. 751, 39 L.R.A.(N.S.) 116, Ann.Cas.1913A, 1226; In re Keenan, 287 Mass. 577, 582, 192 N.E. 65, 96 A.L.R. 679;In re Mayberry (Mass.) 3 N.E.(2d) 248. As the case is presented, therefore, the question for us to determine is whether the facts found constitute improper conduct as matter of law. In re Sleeper, 251 Mass. 6, 12, 146 N.E. 269;Jones v. Clark, 272 Mass. 146, 149, 172 N.E. 250;Weiner v. D. A. Schulte, Inc., 275 Mass. 379, 384, 176 N.E. 114.

The respondent is a member of a law firm practicing in Boston. He also owns, controls and conducts a business under the name of the Automobile Legal Association, commonly known as the ‘A. L. A.,’ in connection with which he engages to render certain services to subscribers in return for annual fees of $12 for the first year and $10 thereafter. There is in truth no real association. The subscribers or ‘members' hold no meetings, have no organization, have no voice by vote or otherwise in the conduct of the business and do not share in the profits. The Automobile Legal Association is simply a name under which the respondent renders services to so called ‘members' who have subscribed for the service. In selling his service and in procuring ‘members' the respondent uses commercial methods. He employs a ‘sales manager’ and at times from twenty to twenty-five ‘salesmen’ who solicit subscriptions. He advertises for ‘salesmen.’ He supplies them with printed and typewritten material in the nature of advertising matter to aid them in getting subscriptions.

It is the contention of the petitioner that the respondent is practicing law in the name of the ‘association’ and that he is using the ‘association’ as a mere cloak or cover for the use of improper and unprofessional methods of solicitation of legal business for himself and his law firm. It is the contention of the respondent that the ‘association’ carries on a legitimate lay business, no part of which constitutes the proactice of law; that it is entirely separated from his law practice; that his solicitation and advertising are solely in behalf of the association's business; and that neither he nor his law firm profits therefrom in their professional practice.

It cannot be doubted that the solicitation by a lawyer of employment in legal matters by means of ‘salesmen’ and advertising as here disclosed would be a gross impropriety which would at once subject him to discipline. In re Cohen, 261 Mass. 484, 159 N.E. 495, 55 A.L.R. 1309;In re Maclub of America, Inc. (Mass.) 3 N.E.(2d) 272. On the other hand commonly a member of the bar is free to engage in commercial pursuits of an honorable character and to advertise and to extend his purely mercantile business honestly and fairly by ordinary commercial methods. With these principles in mind we turn to the specific findings of the single justice.

The respondent has made some recent changes in the methods of conducting the ‘association’ business. These changes were made voluntarily before the petition was filed and apparently in good faith for the purpose of avoiding reasonable cause for criticism. The case involves only questions of professional propriety. There is no suggestion of fraud or dishonesty on the part of the respondent at any time. Under these circumstances we do not feel called upon to pass upon practices or methods which have been abandoned. We shall consider the case upon the findings as to the nature of the business as conducted at the time of the trial. Presumably this continues unaltered.

The ‘association’ has grown to large proportions. It employs fifty to sixty persons on salary in addition to the salesmen. It has about thirty-five thousand subscribers, principally in New England, New York and New Jersey. Its chief office is at Boston, but it has other offices at important cities. In addition to what for convenience may be called its legal service, it supplies to subscribers at its expense an emergency road, garage and medical service, provides maps and touring information and in States where it has an office, except in New Hampshire, it furnishes accident insurance. That these services are substantial and not merely colorable is shown by the facts that in one year the ‘association’ paid for road and garage service in about forty-seven thousand instances, for emergency medical services in fifty-one instances, furnished to subscribers nearly forty-nine thousand interstate and city traffic maps and road maps and supplied touring information by letter or telephone on sixteen thousand, seven hundred and eighty-nine occasions. The ‘association’ assists ‘members' to secure bail in connection with automobile offenses. The ‘legal’ service consists in paying for legal advice and for defending members and their drivers when charged with violation of automobile laws and regulations, including reckless driving and manslaughter, and for defending suits for property damage. The ‘association’ does not pay for bringing suits in behalf of members nor for defending personal injury suits. A magazine, which is published by the respondent and sent to each subscriber, contains a list of attorneys at law in principal towns. This is stated on the list itself to be for the convenience of ‘members.’ It is also stated in a summary of ‘Benefits' published in the magazine with the list that all the service is given by attorneys selected by ‘member...