Hittson v. Browne, 3 Colo. 304

Hittson v. Browne

3 Colo. 304 | Colo. | 1877

Thatcher, C. J.

The law is jealous of her votaries. Her chosen priests alone are permitted to enter her solemn temple, and minister at her sacred altars. Without her sanction, courts should not recognize the right of any one to appear and prosecute or defend causes which necessarily *308relate to so many of the varied and complex concerns of life, from the highest and most important, to the lowest and least significant. A lawyer, duly accredited, holds a station among men that stimulates him to a strict and honest performance of his imperious duties.. The pride and dignity of character inspired by the high and honorable position to which he, by virtue of his office, has attained, affords a guaranty that the great interests committed to his hands affecting alike the rights of person and property, will be managed with scrupulous integrity and with the utmost skill and ability he can command. Animated by an enlightened sense of the delicate and grave responsibilities resting upon the legal profession, our legislators, with provident care, have thrown around the practice of law in Colorado extraordinary safeguards for the purpose ■ of protecting bbth the public and the members of a worthy profession.

To entitle any one applying for admission to the bar of Colorado to a license, it is necessary that this court shall be satisfied by competent evidence prescribed by statute that the applicant is a person of good moral character and either that he has been engaged in the study of law for two successive years prior to the making of such application, or a that he has been regularly admitted an attorney at law in a court of record within the United States.” The purpose of these requirements is manifestly two-fold. The license furnishes the evidence that the law demands for the security of the public, first, that the holder thereof is a person of probity of character; and second, that he is skilled in the law, and, therefore, qualified to practice as an attorney and counselor. Every person without license is prohibited from “ commencing, conducting or defending any action, suit or plaint,, in which he is not a party concerned in any court df record (the county court excepted) within this State.” R. S., p. 65, § 1.

Any lawyer when admitted must also be enrolled to entitle him to practice. R. S., p. 66, §§ 4 and 5.

*309Thus carefully have our law makers adopted every precautionary measure to assure the pure and safe administration of justice and to shield suitors in our courts from the fraud and imposition that might otherwise be practiced upon them by persons who are either dishonest or not learned in the law, persons who not acting under the sanctity of an oath, and not being officers of, cannot be held to such immediate and strict accountability by, the court.

Not only are unlicensed persons prohibited from practicing, but the statute also provides that “if any person not licensed as aforesaid shall receive any money p'r species of property as a fee or compensation for services rendered by him as an attorney or counselor at law within this State, all money so received by him shall be considered as Rioney received to the use of the person paying the same, and may be recovered back with costs of suit, by an action for money had and received * * * and the person receiving' such money or property shall forfeit three-fold the amount or value thereof,” (R. S., p. 68, § 12) to be recovered .by an action of debt qui tam.

Even without the statute just quoted, an unlicensed person can, under our law, recover no compensation for professional services. “ In general, when the law prohibits an act, no one can have the aid of the law to recover compensation for doing it.” Ames v. Gilman, 10 Metc. 243.

One who has the temerity to attempt to practice in the face of the statutory prohibition not only cannot recover for his services, but in the event of collection without suit, he subjects himself to the penalty fixed by law.

If either Browne or Putnam were incapable of entering into a valid contract when the suit on the appeal bond was brought and the services were rendered in the district court in said suit, a joint right of action could not have accrued to them for such services. A joint right of action, in a law firm, for professional services implies a joint right to contract and a consequent joint right to sue.

It is not enough that one member of the firm in his indi*310vidual capacity might have entered into a valid contract and enforced the same in court.

By our statute an unlicensed person labors under a disability to contract or sue.

To affirm the decree of the court below is to assert that the disability may be removed and the law evaded by an unlicensed person entering into partnership with a duly admitted attorney. Unless Browne and Putnam, Browne not being a member of the bar when the services were performed, could have maintained an. action against Polly A. Short-ridge for fees claimed to be due in the suit upon the appeal bond, Browne and Putnam are not entitled to a lien upon the judgment obtained in that suit. That such a joint suit could not have been maintained, one of the partners being under a statutory disability, we think is apparent. “If two sue as co-plaintiffs, in a personal action, a plea that one of them is an outlaw will, if established, defeat or suspend the' suit as to both. Por as jihey sue jointly, and of course assert a joint right, they must recover jointly or not at all in that suit.” Gould’s Pleadings, 225; Com. Digest, Abatement, E. 2.

The authorities upon which the appellees rely for the contrary doctrine when closely examined will be found to be mere obiter dicta.

In the case of Harland et al. v. Libienthal, 53 N. Y. 440, in which the court held that a law firm, one member of which, had been duly licensed, may recover in a joint action for services rendered by the firm, there was the absence of a prohibitory statute. The remarks of the court, that if there had been a prohibitory statute or a rule of court forbidding an unlicensed attorney to practice, the fact that one member of the firm had been duly admitted would relieve from its effect, were entirely extrajudicial.

In the case of Turner & Smith v. Reynall, 14 C. B. (N. S.) 328, the firm of Turner & Smith, medical practitioners, brought an action against a patient for attendance and medicine. When the cause of action arose, Turner alone *311was registered. The day before the suit was brought, Smith had himself registered. The act of parliament (32, §§ 21 and 22 Vict., ch. 98) provided that “ no person shall be entitled to recover any charge in any court of law for any medical or surgical advice, attendance or for any medicine unless Tie shall prove upon the trial that he is registered under the act.'’ As both had registered before suit brought, Ebile, C. J., said, “ Both, therefore, had strictly complied with the words of the act, and both * * * were entitled to sue.” It will be readily seen that neither of these cases is, in principle, analogous to the one before us. The supreme court of Illinois, construing a statute like our own, declares that if an attorney has “incurred any liability by practicing and receiving fees, or if he seeks to recover for services performed as an attorney before his name was entered upon the roll, the court could not aid him by permitting the entry to be made nunc pro tunc. Ex parte Fellows, 2 Scam. 369.

In Robb v. Smith, 3 Scam. 47, construing the same act, the court, after declaring that the statute has “imposed a disability upon ‘the agent”’ which destroys all right, privilege and capacity in him to assume or act in that character in relation to the conduct of legal proceedings, says, “this act was passed, we believe, in a spirit of liberality toward suitors, and for their protection against the practices of those who might seduce their .confidence and induce them to trust the latter in the management of important interests when suitors could not possibly ascertain the skill and qualifications of those in whom they confided, or -their acquaintance with the most intricate, difficult and important of human sciences.” Mr. Browne could, under no circumstances, have a right of action for professional services rendered while he was not a member of the Colorado bar.

To say that he may circuitously and jointly with another have such right by forming a copartnership with one under nonsuch disability is to declare that he may defeat the evident purpose of the statute, that he may do that indirectly which the law will not permit him to do directly. The *312most absurd consequences would result. One under the ban of the statute, either by reason of not being a regularly admitted attorney or by reason of being disbarred, might at once form a copartnership with a licensed lawyer and reap the fruits to which he only is entitled under the statute who possesses an unrevoked certificate of admission which proclaims to the public that its holder is a man of probity and learned in the law.

Whether section 17, chapter VIII, R. S., 1868, in the absence of notice to the judgment debtor, gives an attorney a lien upon the judgment obtained by such attorney, is a question not now necessary to determine.

The decree of the district court must be reversed with costs and the cause remanded, with directions to the court below to dismiss the bill without .prejudice to Mr. Putnam.

Reversed.

Wells, J.

An unlicensed person cannot be permitted to assume the calling and office of an attorney by the mere shift of using the name of a qualified person.

The association of a licensed attorney with one who does not fill this character will not give a joint action in the names of the two, for counsel rendered or service performed by either or both, nor afford a lien, to the two, for fees in respect of such counsel or services, upon judgment recovered, by the qualified person.

In the present case, therefore, if there is any lien for the services -rendered in the action upon the appeal bond, it is in favor of Mr. Putnam alone, for the value of the services which he individually performed, and as the evidence does not distinctly inform us what his services were in that action, or their value, it is impossible to save his rights in the present proceedings, even if the case stood in unexceptionable attitude in all other respects.

Doubtless the complainants may have their joint action against Mrs. Shortridge for the value of their services rendered in the first action,' but having reference to the *313terms of the appeal bond, in which he became surety and upon which alone his liability can be predicated, I do not see how the appellant can be charged with this demand.

For these reasons I concur in the result announced in the opinion of the chief justice. I do not, however, at present agree that an attorney may not, in a conceivable case, enforce a lien upon the judgment given on an appeal or writ of error, or on the bond given in such case, for fees accruing to him in the original action, though he had no connection with the subsequent process.