281 N.W. 432 | Mich. | 1937
First. Appellants complain that our original opinion does not determine the right of a corporate fiduciary to have its lay employees "draft probate papers and conduct probate court proceedings." We might well decline to give consideration to the *710 above for the reason that this specific question is not embodied in the issues presented by appellants' original brief. Instead the right of the corporate fiduciary's employees to render service of the character above noted was presented to this court without discrimination as to whether such employeeswere laymen or licensed attorneys. Further this specific question is not covered by the prayer for relief in the bill of complaint, it is not mentioned in the decree entered in the circuit court, nor is it in any of the three issues (quoted in original opinion) which counsel for the respective parties stipulated were the issues presented to the trial court for adjudication. On appeal from such a decree and under such a record it is scarcely to be expected that this court would undertake to adjudicate the issue now urged. Notwithstanding the noted condition of the record on this appeal, in part because the question was embodied in appellants' original application for rehearing and in part because it is a matter of public concern, we now make disposition of this additional issue. As above noted appellants seek decision of whether a lay employee of a corporate fiduciary may (1) "draft probate papers" and/or (2) "conduct probate court proceedings."
By stipulation of the attorneys for the respective parties the decree entered in the trial court and affirmed in this court expressly provided that the defendant trust company was enjoined from "drafting, or having drafted for others by its attorneys or attorney or others selected or paid by it therefor, any will * * * or proposed form or outline thereof intended for individual use." (Detroit Bar Ass'n v. UnionGuardian Trust Co., ante, 223.) It cannot be more definitely adjudicated that the corporate fiduciary may not, through its lay or lawyer employees, draft wills. *711
Now we have the question whether such lay employees may draft "probate papers," obviously meaning petitions, orders, et cetera, to be filed in probate court. So far as the mere mechanical drafting of such instruments or the diction used therein is concerned, we know of no reason justified in law in consequence of which it should be held that a lawyer in his office may employ a law clerk or a stenographer who, having the ability, is entrusted with the drafting of papers of this character; and on the other hand holding that a trust company empowered by statute to act as fiduciary is barred from so using such employees. But when such papers are filed in or presented to the probate court or other court of record by a corporate fiduciary, they must be under the name and by the authority of one licensed to practice law. Thereupon the attorney becomes responsible for such papers in the same manner as if he had drafted them in person. He makes the draftsmanship his own. It seems unnecessary to add that in any judicial proceeding with which the corporate fiduciary is concerned, in the probate court or any other court of record, it must be represented by a duly licensed attorney. This is conceded by appellee. While an individual may appear in propria personam, a corporation, because of the very fact of its being a corporation, can appear only by attorney regardless of whether it is interested in its own corporate capacity or in a fiduciary capacity. Bennie v. Triangle Ranch Co., 73 Col. 586 (216 P. 718); New Jersey Photo Engraving Co. v. Carl Schonert Sons, Inc.,
Second. Appellants urge a rehearing to enable them "to point out the harmful implications of the quotation of the CannonCase." The reference is to our comment on and quotation from Inre Cannon,
"While the legislature may legislate with respect to the qualifications of attorneys, its power in that respect does not rest upon any power possessed by it to deal exclusively with the subject of the qualifications of attorneys, but is incidental merely to its general and unquestioned power to protect the public interest. When it does legislate fixing a standard of qualifications required of attorneys at law in order that public interests may be protected, such qualifications constitute only a minimum standard and limit the class from which the court must make *713 its selection. Such legislative qualifications do not constitute the ultimate qualifications beyond which the court cannot go in fixing additional qualifications deemed necessary by the courts for the proper administration of judicial functions." In re Cannon, supra, 397.
In our original opinion we quoted with approval from an opinion of the Supreme Court of Missouri wherein it is said:
"So far as is necessary to their self-protection the right of the courts is paramount or exclusive; but beyond that point the legislative department also has constitutional rights in the exercise of the police power." Clark v. Austin,
Our Constitution has vested the courts with inherent power to regulate the practice of law to the extent that is reasonably necessary for their proper functioning.* Legislative regulation is unconstitutional when, and only when, it tends to impair the proper administration of judicial functions. In the Matter ofthe Proceedings for the Disbarment of Bruen,
The purport of our former opinion was in full accord with the foregoing, and we know of no reason for departing therefrom. For this reason plaintiffs' application for a rehearing is denied, but without costs.
*1
