Rattikin Title Co. v. Grievance Committee of State Bar of Tex.

• Decision Date: 29 October 1954
• Docket Number: No. 15592,15592
• Citation: 272 S.W.2d 948
• Parties: RATTIKIN TITLE COMPANY, Appellant, v. GRIEVANCE COMMITTEE OF THE STATE BAR OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 948

272 S.W.2d 948

RATTIKIN TITLE COMPANY, Appellant, v. GRIEVANCE COMMITTEE OF THE STATE BAR OF TEXAS, Appellee.

No. 15592.

Court of Civil Appeals of Texas, Fort Worth.

Oct. 29, 1954.

Rehearing Denied Dec. 10, 1954.

Richard Owens, Thompson, Walker, Smith & Shannon, Fort Worth, F. L. Kuykendall, Austin, for appellant.

Earl P. Hall, Austin, Rawlings, Sayers, Scurlock & Eidson, Nelson Scurlock, Fort Worth, for appellee.

MASSEY, Chief Justice.

This is an appeal by the Rattikin Title Company, a corporation, from a temporary injunction entered against it upon the application of the Grievance Committee of the State Bar of Texas. The Title Company was enjoined from preparing legal instruments as a part of any transaction to which it was not itself a party or the agent of a party,-and from making statements to any person, firm or corporation for which it was not the agent, regarding the purpose or effect of some legal instrument constituting a part of any transaction to which it was neither a party nor the agent of a party.

Judgment affirmed.

We shall premise our opinion in this case by pointing out that both the appellant and appellee seem to be off the opinion that certain individuals who are lawyers, engaged in the practice of law as such (and the agents, servants and employees of and appellee seem to be of the opinion from. The appeal has been taken by the corporation, Rattikin Title Company, and it and it alone is the appellant in the case before us. Therefore, of necessity we must disregard even the question of whether any other person, firm or corporation had the right of appeal, for only the Title Company appealed. Certainly the temporary injunction is operative to restrain the attorneys, agents, servants and employees of the party enjoined under provisions of Article 4661, R.C.S., but this would not restrain the same attorneys, etc., from performing the enjoined acts for other persons if they would be legitimately performed by such other persons as their attorneys, agents or employees. We confine ourselves to the specific order of the court below as same applies to the Title Company, and to the findings and conclusions of the trial judge relating to and purporting to support the order's entry. Of course, we resort to the records of the pleadings and the evidence as necessary to determine the propriety of such findings and conclusions and order.

The specific order of the court reads as follows:

'It Is Therefore Ordered that a temporary injunction be issued to continue in force and effect until this case is finally disposed of on its merits, enjoining and restraining the Rattikin Title Company, a corporation, and any officer, director, employee, attorney or stockholder thereof, from preparing any legal instrument which is not for execution by Rattikin Title Company or by a person or persons employed by it and to which neither the Rattikin Title Company nor the Kansas City Title Insurance Company is a party and in which these companies neither have nor acquire any interest in the subject matter of the instruments; and restraining and enjoining any officer, director, employee, attorney or stockholder of the Rattikin Title Company from giving advice, whether oral or written, to persons who are not employees of said title companies, as to the purpose and legal effect of instruments to which neither the Rattikin Title Company nor Kansas City Title Insurance Company is a party; and such temporary injunction shall be binding upon all persons having notice thereof in active concert or participation with the defendant, Rattikin Title Company. However, it is not intended by this order that any Notary Public who may be employed by Rattikin Title Company shall refrain from complying with the provisions of Article 6605, R.C.S. of Texas, in regard to taking the acknowledgment of a married woman privily and apart from her husband.

'All relief prayed for by way of temporary injunction, which is not hereby granted, is denied.'

It is clear from the record that the appellant Title Company was the agent for the Kansas City Title Insurance Company, by which Insurance Company all the titles approved by the Title Company were insured. The Title Company was left free by the order of temporary injunction to do everything for its principal, the Insurance Company it was enjoined from doing as to third persons. It was also left free to do the same things for its own employees. The record reflects that the Title Company had attorneys employed as its servants rather than as attorneys are ordinarily employed to perform legal services for clients. By the provisions of the order of temporary injunction its attorney-employees were left free to prepare legal instruments as a part of any transaction to which the Title Company itself was a party, or to which the Insurance Company for which it was the agent was a party, or to which one of its employees was a party. Such attorney-employees were left free to make statements and representations regarding the purpose and effect of legal instruments (prepared by them or not) to persons they did not or could not represent and to whom they owed no duty, in connection with transactions to which either the Title Company or its principal, the named Insurance Company, was a party.

These same attorney-employees, as well as others in the employ of the Title Company, were, as the result of the court's order, enjoined from preparing legal instruments which would become a part of any transaction where such privity would not exist. They were likewise enjoined from making statements or giving advice as to the purpose or effect of any such character of instrument to any person, firm or corporation other than their employer and the Insurance Company for which it was agent in or in connection with any transaction to which neither such employer nor said principal were privy parties.

It was the contention of the appellee that the appellant was doing and performing the very things which it was enjoined from doing by the temporary injunction order. Reference to the record before us satisfies us that the Grievance Committee's petition alleged a cause of action, and that there was evidence of sufficient probative force to entitle the court below to determine that such things, alleged by the petition to constitute the unlawful practice of law by the Title Company, were being done. Appellee sought their enjoinder as constituting the unlawful practice of law. The Texas State Bar Act, in part at least, is statutory. See Article 320a-1, R.C.S. of Texas. The Rules of the State Bar of Texas, enacted as provided by Section 4 of said Article, are to be found in Vernon's Annotated Texas Civil Statutes immediately following the Article. These Rules have the same force and legal effect upon the matters to which they relate as the Texas Rules of Civil Procedure have to the matters to which they relate. By such Rules of the State Bar of Texas 'all persons not members of the State Bar are hereby prohibited from practicing law in this State.' The members in question are those attorneys licensed to practice law by the Supreme Court of Texas. There is no question but what the appellant Title Company is not, nor could it be, such a 'person.' Article XII of such Rules provides for an agency of the State Bar, to-wit: the Grievance Committee (which is the appellee herein and which was the plaintiff-petitioner in the court below) to prosecute appropriate suits against persons, firms and corporations other than the members of the State Bar for the purpose of suppressing, prohibiting or preventing the unauthorized practice of law by such others.

The 'practice of law' is not defined by any statute presently in effect. This has been true since the repeal in 1949 of Article 430a of Vernon's Annotated Penal Code. Even when that Article was in effect, however, it was held that it was within the power and authority of the judicial branch of the government to determine what services and what acts constitute the practice of law. Grievance Committee of State Bar of Texas, Twenty-first Congressional Dist. v. Dean, Tex.Civ.App., Austin 1945, 190 S.W.2d 126.

It has been held that 'conveyancing', '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, Tex.Civ.App., Beaumont 1939, 131 S.W.2d 686; In re Duncan, 1909, 83 S.C. 186, 65 S.E. 210, 24 L.R.A., N.S., 750.

As to the 'preparation of legal instruments', those acts of any person in drawing deeds, notes, mortgages and releases relating to the property rights of others, when performed for a consideration, constitute the practice of law,-and those who give advice for a consideration to interested parties as to the purpose and legal effect of an instrument drawn by them for such interested parties practice law. See Hexter Title & Abstract Co. v. Grievance Committee, Fifth Congressional Dist., State Bar of Texas, 1944, 142 Tex. 506, 179 S.W.2d 946, 157 A.L.R. 268, affirming Bar Ass'n of Dallas v. Hexter Title & Abstract Co., 175 S.W.2d 108, the Fort Worth Court of Civil Appeals.

When a corporation furnishes legal services to others and collects fees or receives profits therefor, directly or indirectly, such constitutes the practice of law, the performance of which may be enjoined. Stewart Abstract Co. v. Judicial Commission of Jefferson County, supra. See also the cases cited at page 952 of 179 S.W.2d of the opinion in the Hexter Title & Abstract Co. v. Grievance Committee, Etc., case, supra.

It is thus clear that the Title Company has, perforce the temporary injunction order, been enjoined from doing specific things which our courts have declared to constitute the practice of law. Such things, when done by a party such as the Title Company, are illegal acts. If the pleadings alleged the present commission of such acts or a future intent on the part of the Title Company...