State ex rel. Wyoming State Bar v. Hardy, 2275

• Citation: 61 Wyo. 172,156 P.2d 309
• Decision Date: 26 February 1945
• Docket Number: 2275
• Parties: THE STATE OF WYOMING, upon relation of WYOMING STATE BAR, L. A. BOWMAN, M. S. REYNOLDS, L. C. SAMPSON, JOHN U. LOOMIS, C. A. BRIMMER, P. W. SPAULDING, H. GLENN KINSLEY, OLIVER W. STEADMAN, E. C. RAYMOND, and A. H. MAXWELL, Plaintiff, v. G. W. HARDY, Defendant
• Court: Wyoming Supreme Court

156 P.2d 309

61 Wyo. 172

THE STATE OF WYOMING, upon relation of WYOMING STATE BAR, L. A. BOWMAN, M. S. REYNOLDS, L. C. SAMPSON, JOHN U. LOOMIS, C. A. BRIMMER, P. W. SPAULDING, H. GLENN KINSLEY, OLIVER W. STEADMAN, E. C. RAYMOND, and A. H. MAXWELL, Plaintiff, v. G. W. HARDY, Defendant

No. 2275

Supreme Court of Wyoming

February 26, 1945

Original proceedings by the State of Wyoming State Bar and others against G. W. Hardy for contempt for alleged unlawful practice of law.

Proceeding dismissed.

Proceeding dismissed as ordered.

For the plaintiff the cause was submitted on the brief of W. J Wehrli of Casper, Wyoming.

POINTS OF COUNSEL FOR PLAINTIFFS

Jurisdiction to punish for contempt the unauthorized practice of law or to enjoin such practice is inherent in the Court and exists without constitutional or statutory foundation. It is a power implied from the authority of the court to license attorneys to practice. State v. Barlow (Neb.) 268 N.W. 95, 271 N.W. 282; State v. Kirk, (Neb.) 276 N.W. 380, 382; People v. Bank, (Ill.) 176 N.E. 901, 906; In Re Morse, (Vt.) 126 A. 550; 36 A.L.R. 527, 531; State v. Merchants' Credit Service, (Mont.) 66 P. 2d 337 339; State v. Perkins, (Kan.) 28 P. 2d 765, 768; People v. Goodman, (Ill.) 8 N.E.2d 941, 944; State v. Childs, (Neb.) 295 N.W. 381, 383; In re Brown, 3 Wyo. 121; Board v. Phelan, 43 Wyo. 481, 5 P. 2d 263; Board v. Brown, 53 Wyo. 42, 77 P. 2d 626.

The drawing of wills constitutes the practice of law. People v. Bank, (Ill.) 176 N.E. 901, 908; People v. Bank, (Colo.) 59 P. 2d 468, 469; Judd v. Bank, (Ohio), 12 N.E.2d 288, 291; Detroit Bar Ass'n v. Union Guardian Trust Co., (Mich.) 276 N.W. 365, 367.

There is no place in the relationship of attorney and client for the establishment of a middleman, having an interest in the res or control of the procedure. Hightower v. Detroit Edison, 247 N.W. 97, 99; Grand Rapids Bar Ass'n. v. Denkema, (Mich.) 287 N.W. 377, 380; Clark v. Reardon (Mo.) 104 S.W.2d 407, 410.

Failure to charge fee is no defense. State v. Kirk, (Neb.) 276 N.W. 380, 383; State v. Barlow (Neb.) 268 N.W. 95; People v. Bank, (Ill.) 176 N.E. 901, 909; Clark v. Reardon (Mo.) 104 S.W.2d 407.

For the defendant the cause was submitted on the brief of A. W. Lonabaugh, of Sheridan, Wyoming, and Harry F. Schwartz of Casper, Wyoming.

POINTS OF COUNSEL FOR DEFENDANT

Defendant's acts do not constitute the unauthorized practice of law. There is apparently some confusion in the Courts as to when the work of a law clerk not admitted to the Bar amounts to the practice of law and the line of demarkation between such work as a clerk as to what he may lawfully or may not lawfully perform, cannot always be drawn with absolute distinction or accuracy. The correct rule is that the work to be lawful should be such, as not to lose the identity of the employing lawyer and to become the product or merged in the product and work of the law clerk. Note 111 A.L.R. 45 and 46. In re Matthews, 79 P. 2d 539.

Laymen and the Bar alike have been uncertain as to just what acts do and what do not constitute the unauthorized practice of law.

In punishing unauthorized practice of law as contempt, courts should not apply general restrictive rules regardless of the circumstances, nor be too ready to punish those who act to take care of exigencies of business when licensed attorneys are not available, and Courts must recognize business customs and practices within reasonable limits. People ex rel. Attorney General v. Jersin, (Colo.) 74 P. 2d 668; People v. Wicks 74 P. 2d 665; Grand Rapids Bar Association v. Denkema 287 N.W. 377; State ex rel. Johnson v. Childe, 295 N.W. 381; Gustafson v. V. C. Taylor & Sons, 35 N.W.2d 435; Lowell Bar Association v. Loeb, 52 N.E.2d 27.

RINER, Justice. BLUME, C. J., concurs, and KIMBALL, J., concurs in the result.

OPINION

RINER, Justice

This is an original proceeding brought in this Court by the State of Wyoming upon the relation of the duly elected, qualified and acting Commissioners of the Wyoming State Bar, selected as such under the rules adopted here and effective January 6, 1941, pursuant to an act of the legislature embodied in Chapter 97, Laws of Wyoming, 1939. That Act provided in part that this Court should "from time to time adopt and promulgate such rules and regulations" as the Court might see proper:

"Organizing and governing a bar association of the attorneys at law of this State to act as an administrative agency of the Supreme Court of Wyoming for the purpose of enforcing such rules and regulations as are prescribed, adopted, and promulgated by the Supreme Court under this Act, providing for the government of the State Bar as a part of the judicial department of the State government and for such divisions thereof as the Supreme Court shall determine, and requiring all persons practicing law in this State to be members thereof in good standing, and fixing the form of its organization and operation."

Rule No. 17 thus adopted and promulgated reads:

"No person resident in the State of Wyoming shall practice law in the State of Wyoming except an active member of the State Bar."

No one is authorized to be admitted to the practice of law in this State unless by order of this Court made upon due application therefor, Section 9-102 W.R.S., 1931.

The petition in the cause before us, after setting forth the grounds upon which complaint is made, asked for and obtained an order directing the defendant, G. W. Hardy, to appear and show cause why he should not be adjudged guilty of contempt of this Court for his alleged unauthorized practice of law in this State, that he be restrained from continuing so to act and that if found guilty of contempt in that respect that he be punished accordingly.

This pleading charges in substance that the defendant, Hardy, a resident of Sheridan County, Wyoming, never has been and is not now a member of the Wyoming State Bar and has never been admitted and licensed to practice law in this or any other State. Statements are then made in considerable detail regarding the alleged giving of advice through correspondence by the said G. W. Hardy, concerning legal questions involving the drafting of a purported will on the part of Mrs. Jessie J. Wenzell, at that time a resident of New York City. The correspondence between these parties relative to this matter culminated in Hardy's in fact drawing a form of will which was forwarded to Mrs. Wenzell and by her executed October 27, 1938, in the presence of two witnesses. In this will Mr. Hardy was named both as executor and trustee thereof and the principal property affected by the instrument was a tract of some 160 acres of dry farming land located in Sheridan County, and owned at that time by Mrs. Wenzell.

It is averred also in this pleading that Mrs. Wenzell died on or about May 16, 1942, and that on July 8, following, the defendant, Hardy, filed the will aforesaid, which had been returned to him after its execution by the testatrix, with the Clerk of the District Court of Sheridan County, together with a petition for its probate and Hardy's appointment as executor thereof; that the defendant in said Court had drawn and prepared not less than twenty-five wills between January 1, 1942, and July 31, of that year, for other persons unknown to relators; that said defendant, during the past twenty-five years, has made a practice of drawing and preparing wills for other persons, not less than one hundred such instruments having been thus drafted and that he has continuously held himself out as qualified to give advice concerning the preparation of and drafting instruments of this character.

The answer of the defendant filed here in response to the show cause order above mentioned admits that he has never been admitted or licensed to practice law in Wyoming or in any other State. The material substance of the pleading is to the effect that he has been employed as accountant, bookkeeper, law clerk, and ranch manager, by a firm of practicing attorneys in the city of Sheridan, Wyoming; that Jessie J. Wenzell was the widow of one D. C. Wenzell, who was one of the law partners of the firm aforesaid and when he died the remaining partner looked after the property owned by Mrs. Wenzell, in Sheridan County, this being the 160 acres of land already mentioned, and employed the defendant in connection with the handling of that real estate. Upon that partner's death Mrs. Wenzell continued the defendant as her agent to look after this property in said County, which was managed in connection with other ranch property which was held and owned by the widow and son of the surviving partner of the aforesaid firm of lawyers.

That the defendant discussed with the said surviving partner the advisability of Mrs. Wenzell making a will and thereafter when she submitted certain questions in regard to her making a will and the procedure to be followed, the defendant presented them to his then employer, the son of said surviving partner who also was a duly licensed attorney at law in the State of Wyoming, and had several discussions with him regarding these queries; that it was subsequently decided that a will should be drawn and submitted to her for her approval in New York City; that in the actual preparation of the will the form used was taken from the files of his said employer who indicated the particular trust provision for incorporation in the proposed instrument; that "using the form suggested the facts assembled by Defendant, and the particular trust provision, the will was then typed up by defendant and placed upon his employer's desk for examination and approval, and was advised some days later that 'it was all right'" (italics supplied); that this proposed form of will thus drafted was...