Spivak v. Sachs

• Decision Date: 16 June 1964
• Citation: 250 N.Y.S.2d 666,21 A.D.2d 348
• Parties: William Barnett SPIVAK, Plaintiff-Respondent, v. Mary W. SACHS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 666

250 N.Y.S.2d 666

21 A.D.2d 348

William Barnett SPIVAK, Plaintiff-Respondent, v. Mary W. SACHS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 16, 1964.

David Kashman, Brooklyn, of counsel (Vincent J. DiMattina, Brooklyn, attorney), for appellant.

Arthur A. Greenfield, New York City, of counsel (Frederic P. Houston, New York City, with him on the brief; Otterbourg, Steindler, Houston & Rosen, New York City, attorneys), for respondent.

Before VALENTE, J. P., and McNALLY, STEVENS, EAGER and STEUER, JJ.

STEUER, Justice.

The essential facts necessary for resolution of this case are that defendant requested plaintiff, a lawyer admitted to practice in California but not in New York, to come here and render her what assistance he could in matrimonial litigation in which defendant was involved. Plaintiff correctly advised defendant that he would not be able to appear in any action and that the services he could perform would be limited to advice and consultation with the attorneys appearing for her. With complete understanding of the situation and under circumstances that clearly showed that it was contemplated that the services would be paid for, plaintiff came to New York and performed the services that were requested.

We have no doubt that the services performed were legal services. The only question is whether plainitff is barred from recovery because he is not admitted to practice in this jurisdiction. Any such prohibition would have to be of statutory origin and, as the dissent shows, the applicable statute is Penal Law, section 270. That statute makes it unlawful for any person to practice or appear in any court, or to hold himself out as being entitled to practice, or to maintain an office of any kind for the practice of law, without having first been admitted to the bar. It is quite clear that plaintiff did none of the specific acts that are forbidden. He made no court appearances, and he made no misrepresentation as to his status--in fact, he made that abundantly clear to all persons with whom he came in contact. So that the only possible statutory contravention would have to be found in the word 'practice'.

In all of the reported cases interpreting the statute which have come to our attention, the question has either been one of holding out to be an attorney (People v. Alfani, 227 N.Y. 334, 125 N.E. 671), or whether a continuous course of conduct carried on in this state constituted legal practice (Blumenberg v. Neubecker, 12 N.Y.2d 456, 240 N.Y.S.2d 730, 191 N.E.2d 269; Matter of N. Y. County Lawyers Ass'n (Roel), 3 N.Y.2d 224, 165 N.Y.S.2d 31, 144 N.E.2d 24; Matter of N. Y. County Lawyers Ass'n (Bercu), 273 App.Div. 524, 78 N.Y.S.2d 209, 9 A.L.R.2d 787). The statutory purpose is the protection of the public against representation by persons who are exempt from the regulatory provisions which govern those admitted to practice. Consonantly, it has been held that a single act not influenced by the element of misrepresentation of status, even though the act is one usually restricted to lawyers, is not a violation of the section (People v. Weil, 237 App.Div. 118, 260 N.Y.S. 658).

The literal interpretation which attributes to a single act, not attended by misleading the client, the same consequences as a continuing course of conduct, is virtually self-defeating. With business activities crossing state lines and with communication and travel facilitated, it is usual for lawyers to accompany their clients for purposes of consultation and advice. It is true that in any such situation where the acts tend to become regular, a question of degree can arise as to whether this constitutes practice. But where, as here, a solitary incident is presented, and no otherwise improper act or holding out is involved, the statute is not violated.

Judgment affirmed with costs to the respondent.

All concur except McNALLY and EAGER, JJ., who dissent in an opinion by EAGER, J.

EAGER, Justice (dissenting):

The plaintiff is a member of the California bar but is not admitted to practice law either in New York or Connecticut. This action was brought by him to recover the alleged reasonable value of his services in the nature of advice and assistance rendered to defendant and her attorneys in connection with her matrimonial problems, including litigation pending in Connecticut and the proposed drafts of a separation agreement. The services were allegedly rendered in New York City at various conferences and meetings with the defendant and with New York attorneys. The plaintiff testified he came here to consult with and advise the defendant, and admitted that he gave advice based on his 'knowledge of New York law'. The trial court found that, '[t]he essence of the services performed by the plaintiff was advisory and consultative.'

The advice that the plaintiff gave to the defendant was legal advice in that it concerned the matter of the proper jurisdiction for the matrimonial litigation, the advisability of the dismissal of the Connecticut proceedings with the institution of a new action in New York, the matter of property settlements and the terms of proposed drafts of separation agreements, the custody of the infant son of the parties and his opinion as to the nature of the representation defendant was receiving at the hands of her present counsel in New York with a recommendation that she retain a certain other attorney here. The law and its application and effect were necessarily involved in these matters. The plaintiff, in advising the defendant in connection therewith, was drawing upon his training and experience as a lawyer, and the defendant intended to and was securing the benefit of such training and...