Oregon State Bar v. Wright

• Decision Date: 28 December 1977
• Citation: 573 P.2d 283,280 Or. 693
• Parties: OREGON STATE BAR, Respondent, v. Robert J. WRIGHT, Appellant. . *
• Court: Oregon Supreme Court

Page 283

573 P.2d 283

280 Or. 693

OREGON STATE BAR, Respondent, v. Robert J. WRIGHT, Appellant.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Nov. 3, 1977.

Decided Dec. 28, 1977.

[280 Or. 694-B] Robert J. Wright, Noti, argued the cause and filed briefs in pro per.

Paul D. Clayton, of Luvaas, Cobb, Richards & Fraser, Eugene, argued the cause for respondent. With him on the brief was Michael F. Jarvill, of Jarvill & Jarvill, Eugene.

TONGUE, Justice.

The plaintiff, Oregon State Bar, brought this suit to enjoin defendant from practicing law. Defendant filed various motions, including motions for summary judgment, challenging equity jurisdiction, and for a change of judge. Plaintiff filed a motion for summary judgment. The trial court denied defendant's motions, allowed plaintiff's motion for summary judgment and entered a permanent injunction. Defendant appeals.

Because defendant is not a lawyer we shall consider each of his 13 assignments of error.

Defendant's first assignment of error is that "the court erred by taking equity jurisdiction in an action at law and issuing an injunction to restrain criminal activity or conduct." In support of this assignment of error it is contended that the unauthorized practice of law is a crime because ORS 9.990 provides for criminal penalties and that "by exercising equity jurisdiction, the court below erroneously denied defendant's right to trial by jury" under the constitutions of Oregon and the United States. ¹

In considering this assignment of error it is first important to note that defendant has expressly admitted that he not only practiced law in the past, although "without charge" for his services, but that he intends to continue to do so in the future and "intends to charge a fee for inferrior (sic) court representation in the future." ²

The brief filed by defendant in this court and signed by him personally includes the following statements:

"Defendant admits practicing law in the inferrior (sic) courts within the meaning of ORS 52.060 and full(y) admits drafting the pleadings, briefs and demurrers for scores of people in the Circuit courts of this state within the meaning of the (next friend) doctrine established in Johnson v. Avery (referring to a concurring opinion by Justice Douglas in Johnson v. Avery, 393 U.S. 483 (89 S.Ct. 747, 21 L.Ed.2d 718) (1969)). * * *

" * * * The practice of law consists of those tasks traditionally performed by attorneys. Typical of these is the giving of legal advise (sic) and the preperation (sic) of wills, contracts and other legal instruments. * * * Nor is the practice of law limited to the confines of the Courtroom. * * *

" * * * Defendant further admited (sic) to representing others in Justices courts in some 10 cases with the Courts permission. Those 10 cases were criminal or quasi-criminal before juries and defendant won all of them for his friends. * * *

" * * * (D)efendant contends that what (he) is doing is absolutely authorized since (he) charges no fee for his assistance but intends to charge a fee for inferrior (sic) court representation in the future. Defendant maintains that if a citizen of this community comes to me and tells me no lawyer will take his case without a $2500 retainer fee and that he can not afford a lawyer, I will assist him in drafting his complaint so that he can have his day in court and will do so for free. * * *

" * * * My knowledge of the practice of law did not come from education. It came from expierence (sic) which was good enough for Abraham Lincoln and it's good enough for me. * * *

" * * * (I )f the public seeks me out for representation in the inferrior (sic) courts that is free enterprise and that gentlemen is what (this ) case is really all about." (Emphasis added)

In addition, in a petition for removal of this case to the District Court of the United States, also signed by defendant, it is stated that:

"Mr. Wright is employed as a non union lawyer in the inferrior (sic) courts of Oregon and the injunction sought would put him out of business. * * *

"Mr. Wright contends that the State Bar's action against (him) is not for the protection of the public as much as it is to establish a monopoly over the inferrior (sic) courts which state law does not grant to the State Bar membership. * * * "

We agree that the basic question to be decided in this case is whether, on a theory of "free enterprise," any person has a right to practice law, despite the statute forbidding persons to practice law who are not properly qualified and accredited, as evidenced by membership in the Oregon State Bar.

In considering this question, it is important to note that lawyers are by no means unique in this respect. Indeed, there is no "right," as a matter of "free enterprise," to engage in many professions and occupations because of the provisions of statutes which provide that only persons who are properly qualified, accredited and licensed by a board or commission established by statute may engage in those professions and occupations. These include doctors, dentists, architects, engineers, accountants, real estate brokers, land surveyors, funeral establishments, auctioneers, barbers, plumbers, and many other professions and occupations. ³

Moreover, the Oregon State Bar does not operate as an independent licensing authority, but as an instrumentality of the Judicial Department of the government of the State of Oregon and its members are not only officers of the courts, but are subject to discipline by the courts for misconduct. (See ORS 9.010 and 9.460 to 9.580, inclusive.)

The reason for the statutes relating to all of these professions and occupations is to protect the public from the consequences resulting from attempts to engage in such professions and occupations by persons who are not properly trained and qualified to do so. Indeed, this has been expressly recognized by this court in State Bar v. Security Escrows, Inc., 233 Or. 80, 87, 377 P.2d 334, 338 (1962), holding that:

" * * * Every lawyer knows, for example, how easily a carefully constructed estate plan or tax-minimizing plan can be devastated by the innocent intervention of a layman armed with the best of intentions and the seal of a notary public. We are justified in taking judicial notice of the fact that badly drawn instruments create not only needless litigation but needless loss and liability. A little of this mischief may flow from the carelessness of lawyers, but by far the most of it is the work product of laymen. In either case the injured party may have a cause of action for his damages, but it is in the public interest to keep these difficulties to a minimum."

and that

" * * * Layman are excluded from law practice * * * solely to protect the public. * * * "

Also, as held in Aronson v. Ambrose, 479 F.2d 75, 77 (3d Cir. 1973):

"The interest of a state or territory in promoting the speedy and efficient administration of justice in its courts by assuring the competence and discipline of its bar is great * * * ."

Based upon that reasoning, this court in Security Escrows, Inc., affirmed the entry of an injunction to enjoin a corporation from engaging in the practice of law. To the same effect, see Oregon State Bar v. Gilchrist, 272 Or. 552, 538 P.2d 913 (1975), and State Bar v. Miller & Co., 235 Or. 341, 347, 385 P.2d 181 (1963), in which this court also approved the entry of an injunction against the unauthorized practice of law by a nonlawyer.

It is true, as contended by defendant, that the injunctive powers of a court of equity will not ordinarily be exercised in aid of the enforcement of a criminal statute. State ex rel. Peterson v. Martin, 180 Or. 459, 466, 176 P.2d 636, 640 (1947). As held in that case, however, an injunction is nevertheless proper when the conduct of the defendant is such as to constitute a "persistent and continuous violation" of a statute designed to protect the public (public health, in that case) and when "it is apparent that equitable relief by way of an injunction will provide more adequate protection of the public interests than would a criminal prosecution for each separate violation" (citing other authorities to the same effect).

That decision by this court is in accord with decisions by courts of other states. Thus, as stated in an Annotation in 94 A.L.R. 359 (at 363) (1935):

"The courts have consistently affirmed, * * * that, while injunction does not lie merely to prevent commission of crime, the criminality of an act or series of acts, such as the unlawful practice of law, does not bar injunctive relief if otherwise there is ground for it. * * * "

The reported case which was the subject of that annotation, Fitchette v. Taylor, 191 Minn. 582, 254 N.W. 910, 911, 94 A.L.R. 356 (1934), held that:

" * * * Ordinarily, injunction does not lie merely to prevent commission of crime. But the criminality of an act or series of them does not bar injunctive relief if otherwise there is ground for it.

"It is not a single act that is complained of. It is a series of doings amounting to a well-settled custom which defendant would continue if he were not enjoined. That such a course of conduct would be unlawful is obvious. * * * "

If defendant's position were to be accepted there would be no practical means of "assuring the competence and discipline" of persons engaged in the practice of law in Oregon. Not only laymen would have a "right" to do so, but lawyers disbarred for dishonesty or incompetence would have the same "right."

It is true, as stated by defendant, that in the days of Abraham Lincoln one could become a lawyer by "reading law." But Abraham Lincoln satisfied the requirements of that day to become a duly qualified and accredited lawyer. ⁴

In our opinion, and for these reasons, an injunction by a court of equity is an appropriate remedy when, as in this case, a nonlawyer is engaged in open persistent, continuous and admitted violation of the statute enacted by the...