State ex rel. Wright v. Barlow

• Decision Date: 19 June 1936
• Docket Number: No. 29868.,29868.
• Citation: 131 Neb. 294,268 N.W. 95
• Parties: STATE EX REL. WRIGHT, ATTY. GEN., v. BARLOW, COUNTY JUDGE.
• Court: Nebraska Supreme Court

131 Neb. 294

268 N.W. 95

STATE EX REL. WRIGHT, ATTY. GEN.,

v.BARLOW, COUNTY JUDGE.

No. 29868.

Supreme Court of Nebraska.

June 19, 1936.

Syllabus by the Court.

1. Practice of law includes not only the trial of causes in court and the preparation of pleadings to be filed in court, but also includes drawing, and advising as to the legal effect of, petitions for the probate of wills, drawing of wills, deeds, mortgages and other instruments of like character, where a legal knowledge is required and where counsel and advice are given with respect to the validity and legal effect of such instruments.

2. One may be guilty of the practice of law without a license, notwithstanding he receives no fee for the service performed.

3. The act of an agent of a bonding company in preparing and executing a bond for his principal, where he merely performs the duties of such agent, does not constitute the practice of law.

4. One who acts merely as an amanuensis in preparing an assignment of a judgment is not engaged in the practice of law.

5. The Supreme Court is vested with the sole power to admit persons to the practice of law in this state and to fix the qualifications for admission to the bar.

6. The Supreme Court possesses the inherent power to punish for contempt any person assuming to practice law within the state without having been duly licensed so to do.

7. The practice of law by one not duly licensed may be punished as for a contempt of this court, notwithstanding such practice may be a criminal offense under the statute.

Original action by the State, on the relation of William H. Wright, Attorney General, against Robert A. Barlow, County Judge of Cheyenne County, wherein defendant filed a demurrer.

Demurrer sustained in part, and overruled in part.

Wm. H. Wright, Atty. Gen., Milton C. Murphy, Asst. Atty. Gen., and Lester A. Danielson, Sp. Asst. Atty. Gen., for plaintiff.

Ginsburg & Ginsburg, of Lincoln, and R. P. Kepler, of Sidney, for defendant.

Heard before GOSS, C. J., GOOD, DAY, PAINE, and CARTER, JJ., and KROGER and IRWIN, District Judges.

GOOD, Justice.

This is an original action in this court, instituted by the state of Nebraska, upon relation of the Attorney General, against the defendant, Robert A. Barlow, who is county judge of Cheyenne county, Nebraska.

The information contains ten counts, in each of which it is alleged that defendant has practiced law in this state without being licensed so to do, and that such practice constitutes contempt of this court. Defendant has filed a general demurrer to the information as a whole and to each count thereof. It is defendant's contention that the facts alleged in each of five counts of the information are insufficient to constitute the practice of law. Defendant tacitly concedes, and we think it is beyond question, that counts 1, 2, 3, 5, and 9 sufficiently charge the defendant with the practice of law within this state without having a license so to do.

[1] An all-embracing definition of the term, “practice of law,” would involve great difficulty. For the purpose of this proceeding, it is sufficient to say that it includes not only the trial of causes in court and the preparation of pleadings to be filed in court, but also includes drawing and advising as to the legal effect of petitions for the probate of wills, the drawing of wills, deeds, mortgages and other instruments of like character, where a legal knowledge is required, and where counsel and advice are given with respect to the validity and legal effect of such instruments. Among the cases so holding, in substance, the following are mentioned: In re Opinion of the Justices (Mass.) 194 N.E. 313;Paul v. Stanley, 168 Wash. 371, 12 P. (2d) 401;Boykin v. Hopkins, 174 Ga. 511, 162 S.E. 796;Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650. We do not desire to be understood as saying that the mere act of drawing a promissory note, chattel mortgage, real estate mortgage, deed or other similar instruments would constitute the practice of law, where the person so drawing them acts merely as an amanuensis and does not advise or counsel as to the legal effect and validity of such instruments.

[2] Defendant insists that to constitute the practice of law one must hold himself out as a licensed attorney and receive a fee for his service. We think that this claim is not well founded. One may represent a client in court, draw the pleadings for his client's cause and actually try it in court without receiving a fee for such service. Certainly, no one would contend that such acts do not constitute the practice of law. It is a matter of common knowledge that attorneys are appointed by the federal courts to defend indigent persons, charged with crimes in such courts, and that they render such service without compensation. It can scarcely be said that the defense of a person charged with a crime in the federal court is not the practice of law. It might as well be said that a surgeon who performs, without fee or reward, a tonsillectomy or appendectomy is not practicing surgery. Other authorities, holding to the effect that the charging and receiving of a fee is unnecessary to constitute the practice of law, are Ferris v. Snively, 172 Wash. 167, 19 P.(2d) 942, 90 A.L.R. 278;People v. Association of Real Estate Tax-Payers, 354 Ill. 102, 187 N.E. 823.

Defendant contends that counts 4, 6, 7, 8, and 10 are insufficient to charge the practice of law without a license. Count 4 charges defendant with giving advice and counsel to certain named parties concerning the execution and delivery of a promissory note and chattel mortgage, and that he did prepare such note and mortgage and advised the parties as to the legal effect thereof. This sufficiently charges the practice of law.

Count 6 charges that defendant, purporting and pretending to act as a duly licensed attorney at law, did unlawfully counsel with and advise one certain named person and her husband to execute and deliver to another a note and chattel mortgage, and did then and there advise said person that said transaction was legal and binding. We think this is sufficient to charge the defendant with practicing law.

[3] Count 7 charges that defendant had acted as agent for the National Surety Company, a corporation, in the drafting and preparation of surety bonds for divers executors, administrators and guardians, and in collecting the premiums upon said bonds. In our opinion, this count is insufficient to charge the practice of law. It is not charged that the surety company was not authorized to transact a bonding business in this state. If it was so authorized, it could act only through an agent, and if defendant was acting as agent for the company and was authorized by the company to execute the bonds, then he was only performing a duty which the state authorizes a bonding company to perform. It would no more constitute the practice of law than would the act of a recording agent for an insurance company who prepares and delivers to an insured a policy of fire insurance.The law of this state permits companies to transact such business and authorizes them to appoint agents, and the agents are duly licensed by the state. Certainly, it cannot be said that one licensed to transact an insurance or bonding business can be guilty of the practice of law, where he merely performs the duties of such agent.

[4] Count 8 charges that defendant did draw and prepare, at the request of one Bolger, a certain assignment in writing of a certain judgment. So far as appears, defendant did no more than act as an amanuensis for Bolger in writing the assignment. The assigned judgment was in the county court of which the defendant was the county judge. Thereafter he received and filed the assignment in his court. However, had the assignment been prepared by any other person, and had the assignee brought the assignment to the defendant as county judge, it would have been his duty to receive and file the same in his court. Count 8 of the information is insufficient to charge the practice of law.

Count 10 charges the defendant with advising and counseling as attorney at law with one Lenzen, guardian of certain minors in a guardianship matter pending in the county court of Cheyenne county, Nebraska, and that he did advise and counsel with said guardian to lend to himself funds belonging to the estate of his ward, and did then and there draw and prepare an order of the county court of Cheyenne county, authorizing said loan by said guardian to himself, and did prepare and draw a note and mortgage to secure the payment of said loan. This sufficiently charges the practice of law.

We are of the opinion that each count of...