Grand Rapids Bar Ass'n v. Denkema

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Plaintiffs, Grand Rapids Bar Association, F. Roland Allaben and Benn M. Corwin, trustees and members of a committee of the Grand Rapids Bar Association on the unauthorized practice of the law, filed bill of complaint in the circuit court for Kent county against Henry Denkema to enjoin him from doing certain things, and for other relief as defendant's conduct might merit.

Defendant is a resident of the city of Grand Rapids, not a licensed attorney and counselor at law, who has for a number of years been engaged in the business of general insurance and real estate loans under the firm name of Herman N. Dosker Company. Defendant is not personally a licensed real estate broker and has never sold real estate. He testified:

"In my business of making loans, I have for a number of years past been examining abstracts and giving opinions on them prior to the bringing of this suit. I have also been in the habit of drawing leases, land contracts, deeds and mortgages for other people. That has been customary with me for a number of years, even while Mr. Dosker [who owned the business before defendant] was alive, as his clerk. I have been in the habit of charging a fee for that work. I have also drawn wills for other people. I haven't done much of that in the last three or four years. I have turned them over to attorneys for drawing. I had been drawing some wills, not always. I have never engaged in that very actively. I have in matters that I was not the administrator, executor or guardian appeared in the probate court and prepared petitions and orders and secured orders for the sale of real estate. I also carried on the general probate of various estates prior to the commencement of this suit. I have done that quite frequently during the years. I have also given people advice in regard to the probating of estates. I have also advised them in regard to the proper proceedings either to sell or mortgage estate property, very often helping to settle estates. * * *

"As far as the drafting of wills, I haven't been drafting any wills in the last few years. People that come to me about wills come to the office and talk to me about how they want their property distributed in case of their death, whom they want appointed executor. I take the notes on it and take the notes to an attorney, and he drafts the will. That has been my practice for the last number of years. * * *

In the matter of drafting leases, deeds and mortgages, that has constituted for some years past a large part of my business, — larger than the making of deeds, mortgages, et cetera, in connection with the loans. I consider it would be depriving me of a large part of my income if that were taken away from me.

"It is these men of Holland clientele that have confidence in me that have been coming to our office for 40 years or more that I desire to serve mostly, on all manner of business, when they have a house to sell or mortgage or something like that. They would probably make their own sales and come to us for the drawing of the deeds and contracts and mortgages. That has constituted a large part of our business for 40 years or more."

The trial court enjoined defendant from drafting any proposed will, outline, or suggestion thereof for another; preparing and filing papers in connection with the probating and appearing in probate court for the purpose of obtaining orders and decrees, except in cases in which he acts as guardian, administrator, executor or trustee; advising persons in connection with the probating of estates; examining and giving opinions on abstracts of title of real property; preparing for others legal instruments incidental to the sale, leasing or mortgaging of real property, except in cases in which he is one of the parties in interest; practicing law and performing legal services for and giving legal advice to others, in Michigan. Defendant appeals from portions of the decree of the trial court, urging that he should be allowed to do some of the things which the trial court enjoined him from doing.

"Any suitor in any court of this state shall have the right to prosecute or defend his suit, either in his own proper person or by an attorney or agent of his choice." Const. 1908, art. 2, § 12.

In Cobb v. Judge of Superior Court of Grand Rapids, 43 Mich. 289, this court held that by "an attorney or agent" was meant an attorney, and it denied the right of a disbarred attorney to represent the defendant as an agent in a court of record.

"The word attorney, when used in connection with the proceedings of courts, and the authority to conduct business in them, as well as when employed in a general sense with reference to the transaction of business usually and almost necessarily confided to members of the legal profession, has a fixed and universal signification on which the technical and popular sense unite. The legislator and the judge, the lawyer and the layman, understand it alike as having reference to a class of persons who are by license constituted officers of courts of justice, and who are empowered to appear and prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are devolved by law in consequence." People, ex rel. Hughes, v. May, 3 Mich. 598.

In Detroit Bar Association v. Union Guardian Trust Co.,282 Mich. 216, quotation was made from Hightower v. Detroit EdisonCo., 262 Mich. 1 (86 A.L.R. 509), as follows:

"In a case in court, determination of the steps to be taken and control of procedure and proceedings to enforce the remedy are exclusively functions of an attorney at law, where a party does not appear in his own person. * * *

"The rights and duties arising out of the relationship of attorney and client are not measured by the yardstick of commercial or trade transactions. The relation is purely personal. The lawyer owes to his client undivided allegiance. There is no place in the relationship for its establishment by a middleman having an interest in the res or control of the procedure."

"Counsel and advice, the drawing of agreements, the organization of corporations and preparing papers connected therewith, the drafting of legal documents of all kinds, including wills, are activities which have long been classed as law practice." People v. Alfani, 227 N.Y. 334, 338 (125 N.E. 671).

"The practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law." In re Duncan, 83 S.C. 186 (65 S.E. 210, 24 L.R.A. [N. S.] 750, 18 Ann. Cas. 657).

"The practice of the law is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court." Eley v. Miller,7 Ind. App. 529 (34 N.E. 836).

"Persons acting professionally in legal formalities, negotiations, or proceedings by the warrant or authority of their clients may be regarded as attorneys-at-law within the meaning of that designation as used in this country."Savings Bank v. Ward, 100 U.S. 195.

The practice of law is not confined to the practice in courts of the State, but it includes the preparation of pleadings and other papers incident to any action or special proceeding in any court or other judicial body, conveyancing, the preparation of all legal instruments of all kinds whereby a legal right is secured, the rendering of opinions as to the validity or invalidity of the title to real estate or personal property, the giving of legal advice in any action taken for others in any matter connected with the law. Boykin v. Hopkins,174 Ga. 511 (162 S.E. 796).

"Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation." Opinion ofthe Justices, 289 Mass. 607, 613 (194 N.E. 313).

The statute (3 Comp. Laws 1929, § 13587 [Stat. Ann. § 27.81]) provides:

"It shall be unlawful for any person who is not a regularly licensed attorney and counselor of this State, * * * to practice law or to engage in the law business."

It would be extremely difficult to formulate an accurate definition of the "practice of law" which might endure, for the reason that under our system of jurisprudence such practice must necessarily change with the everchanging business and social order.

The matters which were properly before the court, the doing of which by the defendant he claims was improperly restrained, fall within the general headings of drafting wills, operating in probate court and probate matters, and preparing legal instruments. Defendant does not complain of those portions of the decree of the trial court which enjoin him from examining abstracts and giving opinions thereon and from practicing law and performing legal services and giving legal advice to others.

It is defendant's contention that although he may not be legally permitted to draft a proposed will, he should be allowed to draft an outline of the testator's suggestions for use by an attorney to draft the will. It is his practice to take notes of what people who consult him want regarding the distribution of their property in case of death, which notes he takes to an attorney who drafts the will. This is a part of defendant's business. He desires to hold himself out as a middleman, — an intermediary between the attorney and client. This activity on his part was passed upon adversely to defendant's contention in Hightower v. Detroit Edison Co.,supra. There is no doubt that the preparation of wills for others is the practice of law, Detroit Bar Association v. UnionGuardian Trust Co., supra, and may not be carried on by one not a licensed attorney.

It is suggested that notaries public have a right to draft legal instruments for others in matters in which they have no legal interest. There is much confusion as to the extent of the powers of notaries public resulting probably in part from the difference between the authority, powers and duties of notaries public under the civil law and under the common law. Under the civil law, a notary public must prepare for his avocation, be admitted to practice, and is subject to rules and regulations by the government. But in England, the right to draw or prepare, for or in expectation of any fee or reward, any instrument relating to real or personal estate or any proceedings in law or equity, is limited by statute to barristers, certificated solicitors, notaries public, special pleaders and draftsmen in equity. The object of the enactment is to confine the practice of drawing such instruments to a class of persons supposed to have a competent knowledge of the subject and to protect the public against the mistakes of inexperienced persons. 2 Halsbury's Laws of England, p. 378. But there, a general notary must have been bound by written contract or by indenture of apprenticeship to serve as clerk and apprentice to a fully qualified notary in actual practice for a period of seven or five years depending on where he intends to practice. Brooke's A Notary of England, by Cranstoun (8th Ed.), p. 31; Proffatt on Notaries (2d Ed.), p. 13. While in this State a notary public need not be skilled in legal matters; here a notary must be 21 years of age, a citizen of the State, and a resident of the county in which he or she desires to be appointed. 1 Comp. Laws 1929, § 1403 (Stat. Ann. § 5.1041).

The preparation of conveyances of real estate and personal property by the defendant for others, for a consideration, comes within the usual and ordinary definitions of "practice of law." The preparation of legal papers in connection with his business as a loan broker has been held to be the practice of law. Ferris v. Snively, 172 Wn. 167 (19 Pac. [2d] 942, 90 A.L.R. 278); State, ex rel. Wright, v. Barlow, 131 Neb. 294 (268 N.W. 95).

In People v. Alfani, supra, defendant held himself out as entitled to draw and prepare legal instruments such as contracts for real estate, deeds, mortgages, bills of sale, and wills, as a business, notwithstanding the statute prohibiting anyone from practicing law or holding himself out as being entitled to practice law unless he was a regularly licensed and admitted attorney. Such activities upon the part of the defendant were held to be a part of the practice of law.

In Paul v. Stanley, 168 Wn. 371 (12 Pac. [2d] 401), defendant, a notary public and real estate broker who was not a lawyer, was restrained from preparing for others, as a business, deeds, mortgages, leases, agreements, contracts, bills of sale, chattel mortgages, wills, notes, conditional sales contracts, options, powers of attorney, community property agreements, liens, bonds, mortgage assignments, mortgage releases, chattel mortgage satisfactions, notices to vacate premises, notice to quit or pay rent, or any other documents requiring the use of knowledge of law in their preparation.

In Re Matthews, 57 Idaho, 75 (62 Pac. [2d] 578, 111 A.L.R. 13), it was held that the practice of law includes legal advice and counsel and the preparation of instruments and contracts by which legal rights are secured, although such matters may or may not be depending in a court.

In State, ex rel. Wright, v. Barlow, supra, it was said:

"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."

The statute relating to the practice of the law does not in any way affect the right of persons to act as clerks, stenographers, or notaries public so long as they act within the usual and ordinary scope of such employment, but the fact that one may be a stenographer, clerk or notary public gives him no right to practice law.

The statute is aimed at the practice of law, not to the performance of acts incidental to the transfer of property by particular individuals. Cain v. Merchants National Bank TrustCo., 66 N.D. 746 (268 N.W. 719); People v. Title Guarantee Trust Co., 227 N.Y. 366 (125 N.E. 666).

"The prohibition against unqualified persons acting as solicitors applies to the taking of instructions for or preparation of papers on which to found or oppose a grant of probate or letters of administration." 26 Halsbury's Laws of England, p. 857.

Probate courts in Michigan are courts of record. Const. 1908, art. 7, § 17; 3 Comp. Laws 1929, § 13869 (Stat. Ann. § 27.447). Conducting proceedings in probate courts constitutes the practice of law.

An executor, administrator, or guardian as such has no right to conduct probate proceedings except in matters where his personal rights as representative are concerned. In reOtterness, 181 Minn. 254 (232 N.W. 318, 73 A.L.R. 1319).

In State, ex rel. Wright, v. Barlow, 132 Neb. 166 (271 N.W. 282), a widow called at the office of defendant, who was not a lawyer, in relation to the probate of her husband's estate. Defendant undertook to handle the administration of the estate, filed a petition for the probate thereof, and caused notice of hearing thereon to be published. He advised the widow relative to the payment of debts and the collection of accounts and the procedure to be followed in probating the estate. The court said: "This clearly constitutes the practice of law."

In Re Brainard, 55 Idaho, 153 (39 Pac. [2d] 769), a former probate judge, who had never been admitted to practice law, was found guilty and fined for contempt of court for having engaged in the practice of law by advising persons in matters of estates, preparing various types of papers and pleadings for the purpose of securing the probate of estates. Though he did not set forth his name in any of the papers as an attorney, he did the work in connection with the probate of estates such as is ordinarily done by an attorney.

In Ferris v. Snively, supra, a law clerk, not a licensed attorney, brought suit against the estate of the lawyer for whom he worked. Among other things, he claimed to have handled probate matters by appearing in court, preparing papers, presenting papers and representing parties generally in the probate court. It was held the services rendered fell within the term "practice of law."

The activities of the defendant in connection with the probate of estates in which he was not personally interested come within the prohibition of the Michigan statute. Defendant was properly enjoined from practicing law, or engaging in the law business, in violation of 3 Comp. Laws 1929, § 13587.

The decree of the trial court will be modified in accordance herewith, and affirmed.

BUSHNELL, SHARPE, CHANDLER, and McALLISTER, JJ., concurred with POTTER, J.