State ex rel. Hunter v. Kirk

• Decision Date: 10 December 1937
• Docket Number: 30304.
• Citation: 276 N.W. 380,133 Neb. 625
• Parties: STATE EX REL. HUNTER, ATTY. GEN., v. KIRK.
• Court: Nebraska Supreme Court

276 N.W. 380

133 Neb. 625

STATE EX REL. HUNTER, ATTY. GEN., v. KIRK.

No. 30304.

Supreme Court of Nebraska.

December 10, 1937

Syllabus by the Court.

1. The supreme court of this state has the inherent power to define and regulate the practice of law and is vested with the exclusive power to determine the qualifications of persons who may be permitted to practice law.

2. The practice of law includes the preparing and filing of pleadings in the justice court, the trial of cases, the direct and cross-examination of witnesses, argument to the court, and the giving of advice to persons as to their legal rights.

3. In determining the illegal practice of law, it is the character of the act and not the place where the act is performed which is the decisive factor.

4. In construing sections 21-501, 21-603, and 21-904, Comp.St.1929 relating to procedure in justice court, wherein appear the words, " plaintiff, his agent or attorney," or the words, " defendant, his agent," the term " agent," used in this connection, is to be construed as synonymous with the word " attorney," and only agents who are duly qualified and licensed attorneys may represent litigants in the practice of law in justice court.

5. " One may be guilty of the practice of law without a license, notwithstanding he receives no fee for the service performed." State v. Barlow, 131 Neb. 294, 268 N.W. 95.

Original action for contempt by the State of Nebraska, on the relation of Richard C. Hunter, Attorney General, against Homer D Kirk, wherein defendant filed a demurrer.

Demurrer overruled.

The Supreme Court of Nebraska has inherent power to regulate practice of law.

Richard C. Hunter, Atty. Gen., and Bert L. Overcash, Asst. Atty. Gen., for plaintiff.

F. A. Hebenstreit, of Falls City, for defendant.

Heard before GOSS, C. J., ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ., and ELDRED, District Judge.

MESSMORE, Justice.

This is an original action for contempt for the illegal practice of law by the defendant, wherein it is charged in counts 1, 2 and 3 of the information that defendant acted in the capacity of an attorney in proceedings in the county court of Richardson county, Nebraska, which is a court of record.

Counts 4, 5, 6 and 7 of the information charge the defendant with the practice of law in justice court without first having been duly admitted to the bar and licensed to practice law in the state of Nebraska. The defendant by his answer admits each and every allegation contained in counts 1, 2 and 3, and demurs generally to counts 4, 5, 6 and 7 of the information, and admits that he practiced law in justice court, as set out in said counts, but asserts that, assuming the same to be true, these acts on his part do not violate any of the laws of the state of Nebraska or the rules of this court. It is with this demurrer that we are concerned.

The charges contained in counts 4, 5, 6 and 7 of the information, relating to the practice of law by the defendant in a justice court, may be summarized as follows: Each count charges the defendant, being an unlicensed attorney, with commencing actions in behalf of certain plaintiffs against certain defendants, with pretending and purporting to represent and handle the entire litigation in said court and to counsel and advise with the plaintiffs; that he did draw, prepare and file the necessary pleadings in said actions; that he did represent said plaintiffs in the trial of said suits and examine and cross-examine witnesses, and that he presented and argued the cases in said court.

The issue stated is: Is it unlawful for a layman, as an agent, to prepare pleadings and conduct cases in a justice court in this state? The defendant relies entirely on section 7-101, Comp.St.1929, which reads in part as follows:

" No person shall be admitted to practice as an attorney or counselor at law, or commence, conduct, or defend any action or proceeding to which he is not a party, either by using or subscribing his own name, or the name of any other person, or by drawing pleadings, or other papers to be signed and filed by a party, in any court of record of this state, unless he has been previously admitted to the bar by order of the supreme court of this state."

It will be noted that this statute is affirmative, and it is the fundamental law of this state that a person, not previously admitted to the bar by order of the supreme court of this state, cannot practice law in a court of record. The statute in question is silent as to any court in this state that is not a court of record. It does not prohibit a layman from practicing law in a justice court; neither does it provide for a layman to practice law in a justice court. Defendant contends that it is a function of the legislature of this state to amend the statute, and that it is not within the province of this court to write words into the statute that do not exist therein.

" The Constitution of this state does not, by express grant, vest the power to define and regulate the practice of law in any of the three departments of government." In re Integration of Nebraska State Bar Ass'n, 132 Neb. ___, 275 N.W. 265, 266.In the body of the opinion in that case, quoting from 1 Andrews' American Law (2d Ed.), § 182, p. 221, it was said: " It is a fundamental principle of constitutional law that each department of government, whether federal or state, ‘ has, without any express grant, the inherent right to accomplish all objects naturally within the orbit of that department, not expressly limited by the fact of the existence of a similar power elsewhere or the express limitations in the constitution.' (Cases cited)." It was further said: " The practice of law is so intimately connected and bound up with the exercise of judicial power in the administration of justice that the right to define and regulate its practice naturally and logically belongs to the judicial department of our state government."

In State v. Barlow, 131 Neb. 294, 268 N.W. 95, 98, it was said: " We have reached the definite conclusion that this court is vested with exclusive power to determine the qualifications of persons who may be permitted to practice law in this state." This court has exclusive power to define the practice of law. In the body of the opinion in Re Integration of Nebraska State Bar Ass'n supra, it was further said: "...