I concur in the majority opinion and add the following observations:
This is an original proceeding to determine whether the defendants herein are guilty of contempt of court. The questions, in short, involved in this controversy are as to the authority, first, of a corporation to appear as an attorney in *Page 104 a justice or other court of the state; and, second, as to whether such corporation, making collections as it has in the past, is authorized to so act in view of our provisions relating to the practice of law in the state of Montana; third, whether individuals, as such, not being admitted to practice law in the state, may conduct themselves as in the manner set forth.
Our section of the Revised Codes, 8944, presumes to define the practice of law in the following words: "Any person who shall hold himself out, or advertise as an attorney or counselor-at-law, or who shall appear in any court of record or before a judicial body, referee, commissioner, or other officer appointed to determine any question of law or fact by a court, orwho shall engage in the business and duties and perform suchacts, matters, and things as are usually done or performed by anattorney-at-law in the practice of his profession for thepurposes of this act, shall be deemed practicing law."
It is the policy of the law that men acting in a professional capacity shall have more than usual knowledge of that particular profession, and, further, that in order to protect the public this unusual information or adaptability shall be evidenced to the public by a license to practice that particular profession. The more familiar vocations thus licensed are medicine, dentistry, accountants, instruction, etc. The primary purpose of the license is to protect the public. A secondary purpose is a protection to the persons practicing the particular profession, and to encourage them to better prepare for that service. While in this case the parties chiefly instrumental in bringing the suit are attorneys, no doubt chiefly for their own protection, the fact nevertheless remains that the chief purpose is as stated — the protection of the public in general, which fact we emphasize in this proceeding.
Certain professional requisites are specified in the law before an attorney may be admitted to practice. Certain prohibitions are stated in the law to prevent malpractice; and certain exceptions are made whereby persons not licensed to practice law may nevertheless appear in the justice court to *Page 105 prosecute or defend actions therein. Such persons appearing in such justice proceedings are acting as attorneys as much as a licensed attorney acts as an attorney in the same proceeding. He is excused from establishing his ability in certain directions pertaining to the practice of law, but otherwise he is not excused from following the directions of law relating thereto. His lack of proficiency in the law practice is excused, but he is not excused from following the rules of ethics required of attorneys. He is acting as an attorney, though without an attorney's license. For instance, the law (sec. 10936, Rev. Codes) provides as follows: "Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail not exceeding six months, and by fine not exceeding five hundred dollars." Section 10937 provides: "No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt and malicious intent to vex and annoy."
The defendants in this case admit that they have in many cases brought suit against the wife of a debtor, and herein acknowledge that she was not a proper party defendant. They have therefore confessed the violation of the above statutory provision against common barratry. They also admit that they often caused to be entered as a part of the judgment an attorney's fee when they knew no such fee was allowable therein. Such malpractice is condemned by law and by the ethics of the legal profession, and should not apply to attorneys alone but to every person acting as an attorney whether in a justice or other court. Other branches of procedure of like character properly apply to individuals assuming to direct law procedure as well as lawyers. The individual who, according to the statute above, shall engage in the business and duties, and "perform such acts, matters, and things as are usually done or performed by an attorney-at-law in the practice of his profession * * * shall be deemed practicing law." (Rev. Codes 1935, sec. 8944.) *Page 106
The individuals or corporations engaged in appearing in justice courts as were the defendants in this case in collecting claims, were presuming to use the courts, if need be, to collect the claims in their hands for collection. They were permitted to go into the justice court and practice law without having a license to practice. Impliedly they were practicing law, as, under the express provision of the section quoted, they were performing the same duties as lawyers generally, and when so engaged would be necessarily practicing law. To excuse such persons from obeying the mandate of the statute or the unwritten rules which determine the character of the practice of lawyers acting in the same capacity, would be to impose an unjustifiable burden upon lawyers not imposed on individuals engaged in the same line of work. As said before, the fact that these corporations or unlicensed individuals are authorized to practice before the justice court, gives them no license to violate the well-established principles of ethics that govern lawyers.
The practice admitted by the defendants in this case in many instances clearly demonstrates the extent to which these collection organizations and unlicensed attorneys go and their disregard of the rights of their fellow-citizens. For this reason we must emphatically say they are engaged in the practice of law and must be held to all the rules of ethics pertaining to the profession of law.
The defendants in part attempt to defend themselves by claiming to be the assignees of the claims held in their hands for collection. Any person having a valid claim may bring suit in any court in his name and act as attorney for himself regardless of whether he has an attorney's license or not. Even while acting as his own attorney he is bound by the same rules of ethics as if he employed a regular attorney. The protection of the public so demands. Certain forms used by the defendant company pretending to be an assignment of a claim appear in the record. A careful reading discloses that it is a mere cloak to screen the ulterior purpose of the assignee *Page 107 to authorize it to appear in court without an attorney. It is a subterfuge calculated to deceive the court and to authorize an unauthorized person to appear for the corporation in a court that requires an authorized attorney to make such appearance, except in the one instance of justice courts. To permit this manner of doing business by these corporations would be to completely set aside the law requiring licensed attorneys to appear in courts in the prosecution of suits. The attempted subterfuge should condemn the practice in the loudest terms.
But further than this, corporations are not authorized to appear as attorneys at any place where the services of an attorney are required. Section 5903, Revised Codes, designates the purposes for which corporations may be organized. Nowhere does it authorize corporations to be organized for the purpose of practicing law, and, in passing, we may also say that nowhere does the section authorize the organization of a corporation for the purpose of buying claims. The law (section 8980) makes it a penal offense for attorneys to purchase claims with the intent to bring suit thereon, and the corporation in this case has clearly brought itself within the purview of that section and pleaded guilty to the purchase of the claims and of attempting to practice as an attorney. If a lawyer may not purchase claims with a view to bringing suits thereon, a corporation is bound by the same statute if in fact it has any authority therein whatever. We therefore hold that the practice of corporations or others, laymen as well as lawyers, of purchasing claims as set out in the testimony in this case is unlawful and subject to punishment under section 8980.
It has been suggested that in some proceedings in order to determine the right of a corporation to take an assignment of these claims, a writ of quo warranto is necessary. I differ emphatically with this view. Here the corporation is defending a supposed right as an artificial person. It is by the law a nonentity and is therefore without power to appear or defend. The right to appear as a corporation must be made to appear by the pleadings and proof. Here this was impossible. *Page 108 It is not necessary for the state to show that is does not have a right. The proof must all come from the other side. It is a necessary affirmative allegation. Therefore these corporations have no right to hold property of this character or to bring suits in the corporate name in connection with any of these alleged assigned claims. The practice of the many collection agencies in this state has become so obnoxious to the public that we are happy to clarify the situation and make it clearly possible to put the courts and the profession of law on a foundation consistent with justice and fair play. In view of the apparent misconception of the privileges of these collection agencies, the malpractice heretofore existing will be overlooked with the distinct understanding that any future violations will be severely punished.