State ex rel. Nebraska State Bar Ass'n v. Butterfield

Decision Date10 November 1961
Docket NumberNo. 34597,34597
Citation111 N.W.2d 543,172 Neb. 645
CourtNebraska Supreme Court
PartiesSTATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Elven A. BUTTERFIELD, Respondent.

Syllabus by the Court

1. A suspension from the practice of law differs from disbarment in that the latter is the severance of the status and privileges of an attorney, whereas the former is the temporary forced withdrawal from the exercise of office, powers, prerogatives, and privileges of a member of the bar.

2. A suspended lawyer is under the same obligation to comply with the Canons of Professional Ethics as is a lawyer in the active practice.

3. The preparation of deeds, mortgages, releases, and income tax returns is a province of a lawyer and constitutes the practice of law, whether or not, under some circumstances, such service might properly be performed by persons not admitted to the bar.

4. Advertising in the public press for income tax work by a suspended lawyer is violative of Canon 27 of the Canons of Professional Ethics adopted by this court.

5. The drafting of a will and the supervision of its execution constitutes the practice of law since it requires legal training and skill.

6. The drafting of a power of attorney constitutes the practice of law since it also requires legal training and skill.

7. The character of the respondent in a disciplinary proceeding and the question of his reformation as to his previous unethical conduct are of great importance in determining whether or not a reinstatement should be granted.

8. The burden is upon a suspended lawyer seeking reinstatement to show his present fitness to again exercise the privileges and functions of an attorney in view of his previous conduct, the discipline inposed, and any reformation of character wrought thereby, or otherwise, as shown by his more recent conduct.

Clarence A. H. Meyer, Atty. Gen., Gerald S. Vitamvas, Deputy Atty. Gen., for relator.

Chambers, Holland, Dudgeon & Hastings, Lincoln, Jesse L. Dougherty, Columbus, for respondent.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

CARTER, Justice.

This is a proceeding to secure the reinstatement of an attorney to the practice of law after the termination of a suspension order issued by this court in a disciplinary action.

The respondent was suspended from the practice of law on October 23, 1959, the order becoming effective 30 days thereafter. State ex rel. Nebraska State Bar Ass'n v. Butterfield, 169 Neb. 119, 98 N.W.2d 714. In accordance with the order respondent on June 1, 1960, filed his application for reinstatement. On June 7, 1960, the Attorney General filed a report suggesting that respondent had engaged in the practice of law during the period of his suspension and had not therefore complied with the order of suspension, and that he was not therefore entitled to be reinstated. The matter was referred to Donald F. Sampson, referee, for hearing, with instructions to report his findings of fact and conclusions of law. The referee filed his report with this court on January 20, 1961, finding against the respondent and recommending that this court make such further order as it deemed appropriate. The matter is before this court on the record made before the referee, the referee's report, and the exceptions taken thereto.

Two questions are for the determination of the court in this proceeding. The first is whether or not respondent has violated the order of suspension by engaging in the practice of law, and the second is whether or not respondent has made a sufficient affirmative showing that he will not in the future, if reinstated, engage in any practice offensive to the profession of the law.

Relator contends that respondent has not complied with the order of suspension in that he has engaged in the practice of law during the period that it was in effect. The record shows and the respondent admits that he drew deeds, mortgages, and releases. The record shows that he made out income tax returns and advertised his availability for such work. The record also shows that he on one occasion drafted a will and supervised its execution. It further shows that on one occasion he drafted a power of attorney. Relator contends that the doing of these acts during the period of respondent's suspension, when previously performed in his capacity as a lawyer, constitutes the practice of law. Respondent contends that the conveyances and releases were made in his capacity as a licensed real estate broker, notary public, abstracter, and loan agent.

The Supreme Court of this state has the inherent power to define and regulate the practice of law in this state. State ex rel. Johnson v. Childe, 147 Neb. 527, 23 N.W.2d 720. While an all-embracing definition of the term 'practicing law' would involve great difficulty, it is generally defined as the giving of advice or rendition of any sort of service by a person, firm, or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill. State ex rel. Hunter v. Kirk, 133 Neb. 625, 276 N.W. 380. In an ever-changing economic and social order, the 'practice of law' must necessarily change, making it practically impossible to formulate an enduring definition. Grand Rapids Bar Ass'n v. Denkema, 290 Mich. 56, 287 N.W. 377. In determining what constitutes the practice of law it is the character of the act and not the place where the act is performed that is the controlling factor. State ex rel. Hunter v. Kirk, supra. Whether or not a fee is charged is not a decisive factor in determining if one has engaged in the practice of law. State ex rel. Wright v. Barlow, 131 Neb. 294, 268 N.W. 95.

The drafting of a will and the supervising of its execution constitutes the practice of law. Gardner v. Conway, 234 Minn. 468, 48 N.W.2d 788; People ex rel. Committee on Grievances of Colorado Bar Ass'n v. Denver Clearing House Banks, 99 Colo. 50, 59 P.2d 468; Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358; Grand Rapids Bar Ass'n v. Denkema, supra. The drafting of a power of attorney constitutes the practice of law since the drafting of such an instrument involves the exercise of legal skill and training. The respondent clearly engaged in the practice of law in these two instances.

Disbarment is the severance of the status and privileges of an attorney, whereas suspension is the temporary forced withdrawal from the exercise of office, powers, prerogatives, and privileges of a member of the bar. In re Oliver, 97 Utah 1, 89 P.2d 229; State ex rel. The Florida Bar v. Evans, Fla., 109 So.2d 881. A suspended lawyer is therefore under the same obligation to comply with the Canons of Professional Ethics as is a lawyer in the active practice. The conduct of the respondent, in advertising in the public press his availability to prepare income tax returns, is therefore violative of Canon 27 of the Canons of Professional Ethics adopted by this court.

The respondent admits that he prepared deeds, mortgages, releases, and income tax returns during the period of his suspension. Admittedly respondent performed such work prior to his suspension. Some were performed in relation to real estate transactions in which he was the real estate broker, but in others he was not. It seems clear to us that the doing of such work is within the province of a lawyer to do. It is properly identified as the practice of law, whether or not it might under some circumstances be properly performed by others not admitted to the bar. An order of suspension deprives the suspended lawyer from performing any service recognized as the practice of law and which is usually performed by lawyers in the active practice of law. It is the contention of respondent that these services were performed in his capacity as a licensed real estate broker, notary public, abstracter, and loan agent. It is not necessary for us to determine in this case if and under what circumstances others might perform such services, although not admitted to the bar. A suspended lawyer, who in connection with his law office engages in other activities, is in no different position than the active lawyer who confines himself solely to the practice of law in determining if the suspension order was violated. Where one is generally known in a community as a lawyer, it might well be impossible to divorce two occupations closely related if the rule were otherwise. A suspended lawyer will not be heard to say that services recognized as within the practice of law were performed in some other capacity when he is called to account.

It is contended that the violations, if any, were isolated in character and cannot be said to constitute the practice of law within the meaning of the order of suspension. In this respect we point out that one objection to the reinstatement of respondent is that he engaged in the practice of law in violation of the order of suspension. Even if the violations were isolated ones, and the record shows they were not, they constitute the practice of law and are violative of the court's suspension order. People v. Ring, 26 Cal.App.Supp.2d 768, 70 P.2d 281.

A suspended lawyer is required to affirmatively show, as the order of suspension provides, that he will not in the future engage in any practices offensive to the practice of law. Whether or not such a showing is sufficient is dependent upon the record before us and his prior conduct as reflected in the records of this court. See In re Riccardi, 80 Cal.App. 66, 251 P. 650. The character of the respondent in a disciplinary proceeding, and the question of his reformation as to his previous unethical conduct, are of great importance in determining whether or not a reinstatement should be granted.

The records of this court show that respondent was punished for contempt in 1944. Butterfield v. State, 144 Neb. 388, 13 N.W.2d 572, 151 A.L.R....

To continue reading

Request your trial
26 cases
  • In re Smith
    • United States
    • West Virginia Supreme Court
    • 25 Noviembre 1980
    ...444 U.S. 1033, 100 S.Ct. 705, 62 L.Ed.2d 669 (1980); Petition of Emmons, 330 Mich. 303, 47 N.W.2d 620 (1951); State v. Butterfield, 172 Neb. 645, 111 N.W.2d 543 (1961). For the majority to cast aside these concepts and conclude that disbarment is exacting punishment and vengeance on the att......
  • Gmerek v. State Ethics Com'n
    • United States
    • Pennsylvania Commonwealth Court
    • 18 Mayo 2000
    ...between nonprofessional and professional income-tax service when rendered by a lawyer.") (footnotes omitted); State v. Butterfield, 172 Neb. 645, 649, 111 N.W.2d 543, 546 (1961) (The respondent admits that he prepared deeds, mortgages, releases, and income tax returns during the period of h......
  • Smith, In re
    • United States
    • West Virginia Supreme Court
    • 7 Octubre 1980
    ...444 U.S. 1033, 100 S.Ct. 705, 62 L.Ed.2d 669 (1980); Petition of Emmons, 330 Mich. 303, 47 N.W.2d 620 (1951); State v. Butterfield, 172 Neb. 645, 111 N.W.2d 543 (1961). For the majority to cast aside these concepts and conclude that disbarment is exacting punishment and vengeance on the att......
  • Mitchell, In re
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 27 Diciembre 1989
    ...practice of law is not limited to appearances in court and the signing of pleadings. In State of Nebraska ex rel. Nebraska State Bar Ass'n v. Butterfield, 172 Neb. 645, 648, 111 N.W.2d 543, 546 (1961), the court defined the practice of law as "the giving of advice or the rendition of any so......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT