respectfully dissenting.
I join fully in Justice Levine’s well expressed dissenting opinion.
I add that I believe that the opinion of Justice YandeWalle is mistaken when it states: “The Federal-court-practice exception was not relied upon ... by Ranta in his brief to this court and there is little in the record to sustain the conclusion reached by the dissent as to the precise nature of the legal advice.” Admittedly, the record on this issue is abysmal, undoubtedly because the defense of illegality was raised so belatedly, after the trial was completed.
But Ranta’s brief to this court climaxed its statement of facts with this assertion:
“Ranta provided tax law representation and the commercial aspects were taken care of by another lawyer. (Tr. p. 39, 1.15.).”
At page 39, the transcript contains this strange, but confirming, exchange between Mr. Conmy, attorney for McCarney, and Mr. Ranta, during cross-examination:
“Q. Weren’t you also guarding him on the liability exposure in all other areas covered by a major mercantile agreement?
“A. Well, let’s say that I wasn’t ignorant of them. I probably would have caught anything that may have been illegal or improper as far as commercial law is concerned, but that was not the reason why I was in this entire matter, you know. You’re the one that set up the corporation for Mr. Holms. You’re the one that merged the stock of McCar-ney Ford into Holm’s Ford. You’re the one that liquidated the corporation for Mr. Holms. These are strictly commercial legal matters that I didn’t have anything to do with. All I wanted to make sure of was that Mr. McCarney was protected tax wise.
“Q. Mr. Ranta, Max Rosenberg did all that.
“A. I am sorry. Forgive me. I think I saw an agreement that you had drawn with reference to the merger. It’s on your legal paper.
“MR. CONMY: As secretary of the corporation of McCarney Ford, Incorporated.”
Later, Ranta’s brief to this court argued, “Ranta did not appear in Court, he gave only tax advice, which if it did involve appearing in Court it would be in Tax Court or federal court.” We have dignified dimmer arguments with discourse and decision.
I also do not agree that legislative intent compels the result reached by Justice YandeWalle. The statute does not expressly make a contract with a nonresident attorney illegal, nor does it declare, as some statutes do, that “no person shall receive any compensation directly or indirectly for any legal services other than a regularly licensed attorney.” See Lozoff v. Shore Heights, Ltd,., 35 Ill.App.3d 697, 342 N.E.2d 475 (1976). The result reached is really inferential. Inference of legislative intent should not so easily sweep aside the presumption of legality of a contract. Mevorah v. Goodman, 79 N.D. 443, 57 N.W.2d 600, 617 (1953).
For my part, I prefer the approach of In Re Estate of Waring, 47 N.J. 367, 221 A.2d 193 (1966), approving an award of fees to out-of-state counsel for a New Jersey estate for “federal tax matters, largely involving federal law and out-of-state activities.” I believe the reasoning of that opinion is more realistic:
“Multistate relationships are a common part of today’s society and are to be dealt with in commonsense fashion. While the members of the general public *169are entitled to full protection against unlawful practitioners, their freedom of choice in the selection of their own counsel is to be highly regarded and not burdened by ‘ “technical restrictions which have no reasonable justification.” ’ ” Id. 221 A.2d at 197.
Established policy of this state, as set out in the Code of Professional Responsibility adopted by this court, calls for the Waring result in this case:
“In furtherance of the public interest, the legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice.” Ethical Canon 3-9, North Dakota Court Rules, 1986 Desk Copy (West Publishing Co.) at 616.
Because I believe the result reached in Justice VandeWalle’s opinion is both unnecessary and unwise, I respectfully dissent.