State v. Bander

• Decision Date: 02 June 1970
• Citation: 265 A.2d 671,56 N.J. 196
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Irving L. BANDER, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 196

56 N.J. 196

265 A.2d 671

STATE of New Jersey, Plaintiff-Respondent, v. Irving L. BANDER, Defendant-Appellant.

Supreme Court of New Jersey.

Argued March 17, 1970.

Decided June 2, 1970.

Daniel J. O'Hern, Red Bank, for appellant (Abramoff, Apy & O'Hern, Red Bank, attorneys).

Elliot L. Katz, Asst. County Prosecutor, for the respondent (Vincent P. Keuper, Monmouth County Prosecutor, attorney).

Arthur M. Greenbaum, Newark, for the New Jersey Ass'n of Realtor Boards, amicus curiae (Greenbaum, Greenbaum & Rowe, Newark, attorneys; Lawrence B. Mink, Verona, on the brief).

Thomas T. Warshaw, Red Bank, for the Monmouth County Bar Ass'n, amicus curiae (Drazin, Warshaw, Auerbach & Rudnick, Red Bank, attorneys; Thomas T. Warshaw and John D'Amico, Jr., Red Bank, on the brief).

Emanuel A. Honig, Franklin, for the New Jersey State Bar Ass'n, amicus curiae.

The opinion of the court was delivered by

HANEMAN, J.

This matter involves the conviction of defendant Irving L. Bander for engaging in the unauthorized practice of law in violation of N.J.S. 2A:170--78, N.J.S.A.

Defendant, a licensed real estate broker in the State of New Jersey, prepared a contract of sale for certain property located in Bradley Beach, N.J., by making insertions in a Julius Blumberg law blank described as 'Agreement for the Sale of Real Property, Short Form--New Jersey' and by adding a paragraph providing that the seller pay a mortgage placement fee and $300 toward closing costs. The defendant also drafted a mortgage contingency clause and a clause giving purchasers the option to waive rights granted by the mortgage contingency clause. A later clause drafted by defendant dealt with personal property to be included in the sale.

Defendant sent this instrument to the sellers at their home in Michigan. The sellers returned the signed document to their attorney in New Jersey, a member of the Bar of this State. He added two clauses dealing with the adjustment of rents, insurance premiums, taxes, zoning ordinances, etc. The said attorney then returned the contract to defendant. Some days later purchasers signed the contract in defendant's office. They were not then represented by nor had they consulted an attorney.

This action was instituted on May 8, 1968, when one of the purchasers filed a complaint in the Municipal Court for the City of Asbury Park charging defendant with practicing law in violation of N.J.S. 2A:170--78, N.J.S.A., which reads in pertinent part:

'Any person not licensed as an attorney or counselor at law, and any corporation that:

a. Engages in this state in the practice of law; * * * Is a disorderly person.'

N.J.S. 2A:170--81, N.J.S.A. provides:

'The provisions of this article shall not apply to:

d. The drawing of deeds, bonds, mortgages, leases, releases, agreements or assignments by a licensed real estate broker or any one employed by him; * * *.'

After a full trial on the merits, the Muncipal Court Magistrate concluded that the defendant had engaged in the unlawful practice of law 'in selecting a legal form as appropriate for use in the sale of real property, completing the form by inserting information, and causing the form to be signed by the buyers.' The court further held that the provision in N.J.S. 2A:170--81(d), N.J.S.A., ostensibly exempting defendant's acts, was unconstitutional and a nullity. He therefore found defendant guilty, fined him $25, and suspended the fine.

On appeal, the Monmouth County Court, after a trial De novo on the record below, found the defendant guilty for essentially the reasons stated by the Municipal Court Magistrate. However, the court imposed a fine of $250 'to act as a deterrent to others from committing the same offense.' Defendant sought review in the Appellate Division and this Court certified on its own motion prior to argument there. R. 2:12--1.

As noted by both lower courts, Art. VI, § 2, par. 3 of the Constitution of 1947 vests in this Court exclusive jurisdiction over admission of persons to the practice of law and discipline of those admitted. New Jersey State Bar Ass'n v. Northern N.J. Mortgage Associates, 32 N.J. 430, 161 A.2d 257 (1960); New Jersey State Bar Ass'n v. Northern N.J. Mortgage Associates, 22 N.J. 184, 123 A.2d 498 (1956). In the first above cited case, this Court said:

'while the Legislature may adopt a statute which penalizes the unlawful practice of the law (N.J.S. 2A:170--78) it may not constitutionally authorize the practice of the law by anyone not duly admitted to the bar by this court.' 32 N.J. at 436, 437, 161 A.2d at 260.

Both courts in the present matter concluded that in enacting N.J.S. 2A:170--81(d), N.J.S.A. the legislature was attempting by the exempting paragraph to authorize certain practices of law, thus divesting this Court of its exclusive authority. Consequently, that section was declared unconstitutional and a nullity and defendant was found guilty of violating N.J.S. 2A:170--78, N.J.S.A. The County Court placed reliance on Jeffcott v. Erles, 84 N.J.Super. 70, 200 A.2d 820 (Burl.Co.Dist.Ct.1964), which stated in dictum that the exemption section in question was unconstitutional. We disagree with these conclusions.

As noted in the New Jersey Mortgage Associates cases, the legislature may constitutionally adopt a statute penalizing the unlawful practice of law. N.J.S. 2A:170--78, N.J.S.A. was originally adopted as Chapter 138, Laws of 1924. This chapter contained substantially the same exemptions as are set forth today in N.J.S. 2A:170--81, N.J.S.A. Our Court of Errors and Appeals had occasion to comment on the very exemption here in issue in Morris v. Muller, 113 N.J.L. 46, 172 A. 63 (E. & A. 1934). The main thrust of this decision concerned the liability of a real estate broker for alleged negligent preparation of a chattel mortgage. However, plaintiff also raised the issue of unlawful practice of law and the Court passed on the question as follows:

'Respondent insists that defendant, in the preparation of this document, was unlawfully engaged in the practice of law. But we do not think so. Chapter 138 of the Laws of 1924 (P.L. p. 308), as amended by chapter 268 of the Laws of 1928 (P.L.1928, p. 676 (Comp.St.Supp. § 52--214t)), making it a misdemeanor for a person not duly licensed as an attorney or counselor-at-law to 'engage in the practice of the law,' expressly provides that the act shall not apply to the 'drawing of deeds, bonds, mortgages, leases, releases, agreements, or assignments by a master in chancery or a licensed real estate broker.' This clearly evinces a legislative purpose to vest in real estate brokers, who must, as a prerequisite to the right to a license, submit to examination as to their qualifications, the authority to draft the enumerated documents, and the Legislature's power to do so cannot...