Oregon State Bar v. Gilchrist

• Decision Date: 07 August 1975
• Citation: 538 P.2d 913,272 Or. 552
• Parties: OREGON STATE BAR, a public corporation, Respondent, v. John W. GILCHRIST et al., Appellants.
• Court: Oregon Supreme Court

Page 913

538 P.2d 913

272 Or. 552

OREGON STATE BAR, a public corporation, Respondent, v. John W. GILCHRIST et al., Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 5, 1975.

Decided Aug. 7, 1975.

John Bassett, Milwaukie, argued the cause and filed a brief for appellants

Barry P. Caplan, Portland, argued the cause for respondent. With him on the brief were Daniel C. Ellis, Garry L. Kahn and Gino G. Pieretti, Portland.

McALLISTER, Justice.

The plaintiff, Oregon State Bar, brought this suit to enjoin the defendants John W. Gilchrist, Robert J. Lavorato and Bev Coloma from practicing law through the advertising and sale of do-it-yourself divorce kits. Defendant Bev Coloma consented to the entry of a decree against her as prayed for in the complaint and is not a party to this appeal. From an adverse decree the defendants Gilchrist and Lavorato appeal.

The defendants John W. Gilchrist and Robert J. Lavorato, neither of whom are licensed to practice law, own and operate a business known as the Oregon Divorce Council. Their business consists of the sale of do-it-yourself divorce kits containing a manual for divorce, forms and instructions designed to enable an individual to complete and file the forms necessary to secure a dissolution of marriage.

The kit includes (a) a petition for dissolution of marriage; (b) a summons; (c) a marital settlement agreement; (d) an order of default; (e) an affidavit of nonmilitary service; (f) a decree of dissolution of marriage; and (g) a manual for divorce which explains the forms and instructs the customer how to use them.

The manual uses as an illustration the hypothetical case of Mary Jane Doe v. John Robert Doe. A sample passage of the manual reads:

'MARY DOE PREPARES THE PETITION TO DISSOLVE THE MARRIAGE

'In their determination to proceed with as little cost as possible, John and Mary called the OREGON DIVORCE COUNCIL for information as to the functions of the Council in assisting people to obtain a divorce representing themselves.

'Securing an appointment, they met with the Council's Executive Director, Jack Gilchrist, at which time the couple was informed of the functions of the Council and what would transpire in their proceedings for a divorce.

'Director Gilchrist explained in depth the cost factors involved, what sequence of order the divorce action would follow in the court, and what was expected of each party. Moreover, John and Mary were instructed as to properly completing the 'Marital Settlement Agreement' and the need for such an agreement to simplify the divorce proceedings. The Director further explained the advantage of Mary being the petitioner and to that end, Jack agreed.

'After registering with the Council as a new member Mary was given a 'PORTFOLIO' that contained all of the procedural information necessary to obtain the divorce, plus all of the official court forms that would be needed.

'Taking the 'PORTFOLIO' home, Mary, with the help of John began preparing the petition and summons, the first forms to be filed with the court in order to start the action. Starting with the

Petition, Mary completed the statistical information requested, including the information regarding son, John's, birthdate, age and address. After completing both pages of the petition, Mary attached [272 Or. 555] to the petition, their 'Marital Settlement Agreement'.

'(FOR THOSE OF YOU WHO ARE NOT ABLE TO AFFECT (SIC) AN AGREEMENT WITH YOUR SPOUSE, WE HAVE PRINTED SAMPLE ORDERS ON THE PETITION AND DECREE FOR YOUR USE, SUBSTITUTE YOUR OWN INFORMATION FOR THAT CONTAINED IN THE SAMPLE ORDERS.)'

The defendants maintained an office in Portland and obtained most of their customers by advertising in newspapers and other publications, of which advertising the following are examples:

'DIVORCE

JOIN THE THOUSANDS OF PEOPLE WHO HAVE BEEN SUCCESSFUL IN SECURING THEIR OWN NON-CONTESTED DIVORCE.

OREGON DIVORCE COUNCIL

235--2511 OR 222--9478

3823 S.E. Belmont, Portland, Oregon'

'DIVORCE

Join the many people receiving qualified confidential counseling in non-contested divorce. Oregon Divorce Council, 3823 SE Belmont, Portland, Call 9 am to 5 pm weekdays, Portland, .......... 235--2511'

'SELF DIVORCE

WHY CHANCE IT? PLACE YOUR FUTURE WITH A NATIONALLY RECOGNIZED FIRM. MONEY BACK GUARN. LEGAL. CALL:

235--2511, 9AM to 7PM

3823 SE BELMONT'

Defendant's basic charge for their kit was $40, but for an additional fee of $15 defendants would complete the forms with information furnished by the customer in a written questionnaire or in a personal interview. Over a period of two years and three months defendants had an estimated 1300 to 1500 customers, about one-half of whom used defendants' 'typing service.'

After the forms were filled out the customers were on their own to sign, verify and file the documents, arrange for service of process on the other spouse and present their case to the court in order to obtain a decree of dissolution of the marriage.

The trial court concluded that all of defendants' activities constituted the practice of law and entered a decree enjoining the activities of the defendants as follows:

'IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT THE DEFENDANTS AND EACH OF THEM ARE PERMANENTLY RESTRAINED AND ENJOINED FROM:

'1. Advising or instructing purchasers of forms by written example or otherwise regarding the use or appropriateness of said forms to accomplish particular legal results in divorce proceedings.

'2. Selling or providing forms, documents, kits, packages, booklets, printed instructions or the like in any combination designed and compiled for the purpose of terminating a marriage, settling property rights between married persons, determining child custody, or determining support or visitation rights.

'3. Representing to any person or persons either expressly or impliedly that forms which defendants have available for sale are in any combination sufficient to terminate a marriage, settle property rights between married persons, determine child custody, support or visitation.

'4. Advertising by any means or media the availability for sale of forms, documents, kits, packages, booklets, printed instructions, or the like in any combination as sufficient to terminate a marriage, settle property rights between married persons, determine child custody, support or visitation.

'5. Advertising by any means or media the availability for sale of forms, which advertisements expressly or impliedly represent that the forms which defendants have available for sale are sufficient to terminate a marriage, settle property rights between married persons, determine child custody, support or visitation.

'6. Suggesting contents of child custody, property settlement agreements entered into by the parties to a divorce or aiding said parties in wording a child custody or property settlement agreement or a decree incorporating a negotiation of child custody, support, visitation, or the property rights of the parties.

'7. Questioning prospective customers by form or otherwise in order to acquire information necessary to the drafting, filling out or choice of such forms, and

'8. Carrying on any activity which will aid and abet defendants in the violation of items 1 through 7 of this decree.'

The defendants assign as error the denial of their motion for an involuntary nonsuit. Since this is a suit in equity and a nonsuit may only be granted in actions at law, we need not concern ourselves with this assignment of error.

The defendants concede that when they were interviewing customers, answering their questions, recommending forms to be used by particular customers and helping them to complete the forms and in any way counseling with customers, they were engaged in the practice of law. In their brief defendants concede:

'While this court may find that the defendants did have personal contact with their customers and may have answered questions which constituted the giving of legal advice, any such legal advice by defendants should be enjoined, but the writing, advertising and sale of the forms and written instructions should not be enjoined.'

Defendants' basic contention is stated in their brief as follows:

'While this court may enjoin the defendants from acting in an advisory capacity to its customers in recommending or designing completed forms, the writing, advertising and sale of forms in combination with a text of material relating to the completion of those forms which text is impersonal and involves nothing discretionary between defendants and customers should not be enjoined and the trial court decree should be modified in accordance therewith.'

We believe that paragraph 2 of the decree unduly restricts the activities of the defendants and cannot be sustained. In our view defendants cannot be enjoined from merely publishing or selling their divorce kits so long as the defendants have no personal contact with their customers.

We find persuasive the holding in New York County Lawyers' Association v. Dacey, 28 A.D.2d 161, 283 N.Y.S.2d 984, reversed 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459 (1967). There it was held that the publication, distribution and selling of Norman F. Dacey's book 'How to Avoid Probate' did not constitute the practice of law since the publication was directed to the general...