Mickel v. Murphy
| Decision Date | 21 January 1957 |
| Citation | 147 Cal.App.2d 718,305 P.2d 993 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Flora L. MICKEL, Plaintiff and Appellant, v. Harold C. MURPHY, Defendant and Respondent. Civ. 5535. |
Fred H. Almy, San Bernardino, for appellant.
Cunningham, Parry & Holcomb, San Bernardino, for respondent.
This is a tort action for damages alleged to have been caused by the unlawful practice of law by defendant. A demurrer to the second amended complaint, including by stipulation a general demurrer, was sustained and plaintiff was granted ten days to file an amended complaint. She declined to amend and appeals from the judgment thereupon entered against her.
The principal question to be here determined is whether the second amended complaint states facts sufficient to constitute a cause of action. It is alleged therein that Henry Mickel, prior to his death on September 4, 1954, was the husband of plaintiff; that his separate property at the time of his death was valued at $34,411.94; that defendant was not licensed as an attorney at law or authorized to engaged in the practice of law in California; 'that defendant prior to the death of said Henry Mickel, and on or about April 30, 1952, did unlawfully engage in the practice of law in the State of California as follows: did advise regarding, draw, prepare and notarize a certain instrument bearing title of 'Last Will and Testament of Henry Mickel' and bearing said date of April 30, 1952, and did not advise said Henry Mickel that a Will required attestation thereto of two witnesses'; that under the provisions of said will plaintiff was to receive the entire estate of Henry Mickel; that he died intestate on September 4, 1954, and one-half of his separate property, of the value of approximately $17,000 vested in and passed to the mother of said deceased; that the said will was not witnessed as required by law and was therefore null and void; that Henry Mickel believed said will bo be valid and intended that plaintiff should receive all of his property upon his death and that as a direct and proximate result of the said unlawful practice of law by the defendant plaintiff sustained damage in the sum of $17,205.97, the reasonable value of one-half of the separate property of Henry Mickel.
The acts alleged as unlawful practice of law, and upon which plaintiff relies to state a cause of action are that defendant did advise regarding, draw, prepare and notarize the will involved and did not advise Henry Mickel that a will required attestation thereto of two witnesses. (Italics ours.) There is no allegation that defendant represented that he was an attorney or qualified to draw the will. There is no allegation that the defendant suggested or directed the disposition of the property of Henry Mickel or that Henry Mickel relied upon defendant to see that the will was witnessed as requied by law and it is not alleged that defendant was engaged as an attorney to draw the will.
It is generally held that practice of law is not involved in the function of a 'scrivenor' of legal instruments. (6 Cal.Jur., Attorneys at Law, Sec. 30.) In People v. Sipper, 61 Cal.App.2d Supp. 844, 846, 142 P.2d 960, 962, 'the practice of law' is defined and discussed and it is there said that the term 'practice of law' or its equivalent 'the practice of the law' includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be pending in court; that 'If defendant had only been called upon to perform and had only undertaken to perform the clerical service of filling in the blanks on a particular form in accordance with information furnished him by the parties, or had merely acted as a scrivener to record the stated agreement of the parties to the transaction, he would not have been guilty of practicing law without a license.' In the instant case it is not alleged that defendant acted other than as a scrivener in the preparation of the will and no facts are alleged showing that it was defendant's duty under the circumstances to advise the decedent that the will required 'attestation thereto of two witnesses.'
In Buckley v. Gray, 110 Cal. 339, 42 P. 900, 901, 31 L.R.A. 862, in an action to recover for negligence of an attorney in drafting and executing a will, it...
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Birbrower, Montalbano, Condon & Frank v. Superior Court
...(Ring ) [holding that single incident of practicing law in state without a license violates § 6125]; see also Mickel v. Murphy (1957) 147 Cal.App.2d 718, 721, 305 P.2d 993 [giving of legal advice on matter not pending before state court violates § 6125], disapproved on other grounds in Biak......
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U.S. v. Clark
...Abar v. Rogers, 124 Cal. App.3d 862, 177 Cal.Rptr. 655 (1981)(finding a violation of § 6125 is a criminal act); Mickel v. Murphy, 147 Cal.App.2d 718, 305 P.2d 993 (1957)(finding violation of § 6125 creates criminal liability); Matter of Trousil, 1990 WL 180836, 1 Cal. State Bar Ct.Rptr. 229......
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Brammer v. Taylor
...does not constitute the preparation of a legal instrument and, thus, does not constitute the practice of law. Mickel v. Murphy, 147 Cal.App.2d 718, 305 P.2d 993 (1957), overruled on other grounds, Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958). Mickel involved an action by an intende......
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Biakanja v. Irving
...on the ground that the attorney owed no duty to the beneficiary because there was no privity of contract between them. Mickel v. Murphy, 147 Cal.App.2d 718, 305 P.2d 993, relying on Buckley v. Gray, supra, held that a notary public who prepared a will was not liable to the beneficiary for f......