Palmer v. Unauthorized Practice Com. of State Bar, 207

• Decision Date: 12 February 1969
• Docket Number: No. 207,207
• Citation: 438 S.W.2d 374
• Parties: Bill PALMER et al., Appellants, v. UNAUTHORIZED PRACTICE COMMITTEE OF the STATE BAR OF TEXAS et al., Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 374

438 S.W.2d 374

Bill PALMER et al., Appellants, v. UNAUTHORIZED PRACTICE COMMITTEE OF the STATE BAR OF TEXAS et al., Appellees.

No. 207.

Court of Civil Appeals of Texas Houston (14th Dist.).

Feb. 12, 1969.

Jack Bailey, Houston, for appellants.

Robert O. Campbell, Houston, and Davis Grant, Austin, for appellees.

BARRON, Justice.

This suit was filed in the District Court of Harris County, Texas, by the State Bar of Texas, through its Committee on Unauthorized Practice of Law, and the Houston Bar Association, as plaintiffs, against Bill Palmer, individually and doing business as National Will Forms and National Will Form Company, defendants, for injunction to restrain defendants from engaging in the alleged unauthorized practice of law by the offering for sale to the general public, exclusive of licensed attorneys, of wills and will forms containing blanks to be filled in by the user, and to restrain defendants from advertising the alleged sale to the general public of said wills and will forms.

After a hearing on September 30, 1968, the district court granted a temporary injuction as sought by plaintiffs. Defendants have perfected their appeal as a result of the order of the trial court.

Defendants contend by this appeal that the acts proven do not constitute the unauthorized practice of law; that the temporary injunction is too broad and is in direct contravention of the guarantees afforded individuals by the First Amendment to the United States Constitution and Art. I, Sec. 8 of the Texas Constitution, Vernon's Ann.St.; that defendants' right to contract and their obligations thereunder have been unconstitutionally impaired; that the trial court had no jurisdiction to enter the restraints; that the injunction was improper because an adequate remedy at law was shown, and because plaintiffs did not come into the court of equity with clean hands.

The facts show that defendant had for some months prior to the filing of this action engaged in an advertising campaign in various newspapers in the State of Texas promoting the sale of 'will forms' to the general public. The will form was prepared for him by an attorney. Defendant is not licensed to practice law in this or in any other state. He did not complete his high school education and is untrained in the law. These advertisements took several forms but were basically the same. One of the advertisements was as follows:

'DON'T DIE WITHOUT A WILL

'You have heard many times, 'Everyone should have a will.' But, Why? ALL wills go through probate court regardless of how small the estate. If there is no will the beneficiary WILL, in every case, experience delays, tied-up savings and checking accounts, expensive legal fees, orphaned children words of the court and many trips to court.

'ALL THIS CAN BE AVOIDED

'Send coupon below for the simple, but binding, Will Form with self explanatory instructions. Man and wife * * * $3, individual * * * $2.'

A coupon was attached to the advertisement. Other advertisements purported to give instructions and warnings on the law of community property and the general hazards of dying without a will. The will form sent to the customer by mail was a simple will giving, devising and bequeathing to one or more persons all of the 'testator's' property. The form included a simultaneous death clause, 'or within ninety days after my death as a result of a common disaster,' with a place to fill in names of alternate beneficiaries. The form included the appointment of an independent executor and an alternative independent executor, and provision was made for the appointment of a guardian for minor children. If the children inherited, the testator's property was to pass 'share and share alike, per stirpes and not per capita.' No provision for bonds was made. Three witnesses were contemplated in the form, and the self-proving affidavit in substantial wording of Sec. 59 of the Texas Probate Code, V.A.T.S. was attached.

Further attached to the form were definitions of the terms executor, witness, trustee, guardian, will and testament, with the statement written below, 'The above taken from home library dictionary.' The advertisements were followed with the suggestion that the National Will Form Company would furnish will forms for consideration of $2.00 for an individual and $3.00 for a man and wife. Defendants sell approximately 150 such will forms per week to the general public and derive an income of about $350.00 per week from such sales.

Defendants contend that the advertising of a printed, blank form and the sale thereof cannot constitute the practice of law. But we believe the defendants have oversimplified their conduct and their actions in dealing with the highly complicated subject of wills and the many and varied testamentary dispositions of property advisable in a given case. Drafting and supervising the execution of wills is, we believe, practicing law. By a will legal rights are secured. In giving instructions, confidential communications regarding family relations are often necessary. There is no phase of the law which requires more profound learning than on the subject of trusts, powers, the law of taxation, legal and equitable estates, perpetuities, etc. These duties cannot be performed by an unlicensed person, not an attorney, and who is untrained in such complex legal subjects. See People v. Peoples Trust Co., 180 App.Div. 494, 167 N.Y.S. 767; People ex rel. Committee on Grievances et al. v. Denver Clearing House Banks, 99 Colo. 50, 59 P.2d 468.

Defendants seem to consider the commercial distribution of their will form as similar to the sale of lease and deed forms by a stationary store. This is an erroneous assumption. It has been held that preparation of legal instruments of all kinds and all advice to clients involve the practice of law. Stewart Abstract Co. v. Judicial Commission of Jefferson County, 131 S.W.2d 686 (Tex.Civ.App.), no writ hist.; In re Duncan, 83 S.C. 186, 65 S.E. 210, 24 L.R.A.,N.S., 750....