*1 BAKER AND CHARLES J. THE MATTER OF WALTER IN BIEBER, OF COURT. WITH CONTEMPT E. CHARGED 21, Argued 1951. Decided December November *3 Lasher, Mr. Milton T. the court to appointed by prose- matter, cute the cause for the Committee on argued Unauthorized Practice of the Law of the Bar Bergen County Association.
Mr. John A. Christie the cause for the argued respondent, Walter J. Baker.
Mr. Bernard S. White cause for the argued respondent, Charles E. Bieber. of the court delivered opinion C. This matter came J. before the court
Vanderbilt, on a presentment the Committee on the Unauthorized Practice of the Law of the Bar Association. Bergen County presentment based on facts submitted com- mittee by Donald Surrogate County G. Dutcher of Bergen A. Chauncey Phyley of bar with Bergen County reference to the conduct of Walter Deputy J. Surrogate *4 Baker of and E. Bergen County Bieber, Charles a title searcher in the working County House, Court Bergen preparation execution a will and a of power attorney for Walter Scott a farmer Knoph, of about 80 years age in that The residing county. states presentment will after for specific $625 made providing bequests totalling Baker and Bieber residuary with legatees executors a estate; of sale of real that the attorney gave Baker and Bieber full control over all of Knoph’s property of his mentally incompetent; event becoming it it and- had not read the will before Knoph signing giving Baker and with the of Bergen to Bieber to lodge Surrogate there; under then County safekeeping vogue and that it it and sur- instead of so Bieber kept lodging rendered it after The only repeated requests. presentment states that it was made to the court “for such further pro- as it deem to determine whether or ceedings necessary not the said Baker conduct of the Walter J. and Charles E. Bieber tends administration of this bring Court into We issued an disrespect.” thereupon order directed Baker and Bieber them to show cause requiring why they should not be of court and adjudged guilty of depositions to ascertain the facts. authorizing taking
I. The reveal not the mere depositions and execution drafting of a will and a power infirm,, but a sordid story friendless old age grossly imposed upon by official public and his co-conspirator. testimony Bieber Baker alone would be sufficient tо convict them. is a fruit Knoph a small farm in .grower owning Ramsey $9,000. at appraised He is uncertain of his exact but he thinks he is His age 79. wife died last while in year the State for the Hospital Insane at Morris Plains. Baker, “He According bitter very with his sister-in-law, because she threatened to send him to Plains, Morris that he had claiming sent her there,, sister which was his wife.” had heart Knoph spells quite often that lasted on average three-quarters of an hour. He had a medicine he special carried with him and he had “one of the finest doctors in the country” from Suffern but he name; couldn’t remember his “I know his telephone number.” Baker himself testified that once said him, “Oh, I didn’t my gosh, know it was you. Since my died, wife mind my blank.” going testimony between the correspondence parties showed that he was seek- *5 326 life, purchase affairs of such as aid about the ordinary
ing expressed and “bird scarers.” He of a lawn mower and his lawyers penuriousness aversion to both bankers was an for easy prey him free advice. He led to seek legal incapable rising adventurer and not yet any altogether occasion, present which precipitated to the a characteristic of Bergen Baker had been Deputy Surrogate proceeding. a he had member for and before that been County years seven years. Police for the Bergen County Department Neither nearly had a title examiner for j^ears. Bieber been law. licensed to practice of them had been in when Eebruary, Knoph met Baker first Knoph him the office to get help a take surrogate’s had neighbor on his wife’s some inheritance tax waivers reference to with Erom so he could out of bank. money get property saw a Baker he “once says Knoph on until September then I ever missed a time time. I don’t think for the whole week These vacation my September.” meetings until I went on home; “I there up held at went Knoph’s were generally him; him him and advise and to up pacify to cheer mostly for him. He craved him and do help something see if we could with him and close to him. I be friendly somebody for him. We never had as any arguments took a really liking I went him, my I until on vacation” Sep- knew long tember. with wanted Knoph help respect their first also meeting
On and Baker took him across his to the proрerty to the title to meet court house to Bieber. Bieber room searching of two owned pieces property made search only he checked certain wife, and his but easements and Knoph them Knoph charge. Knoph made sketches without he was about the trouble with the having told Bieber also his bill for wife’s board at adjuster county concerning likewise saw Knoph Plains. Bieber about once a Morris Baker, though with he visited on week, at generally his wife. Both with Baker Bieber two occasions least their “client.” cultivating assiduous were *6 after came Knoph up a will for matter of drawing Baker’s testi- of the property. his'search had finished Bieher and he he realized that Bieber that it apparent makes mony will: in drafting Knoph’s on dangerous ground treading were Charley through drawing up got [Knoph] that when said “He property searching to know if we would papers his he wanted on problem new will. him. He wanted to draw a on for little a take [as same an earlier be about the contents would that the He said changes. given I told Mm with a few Baker] he had will which the¡ anything I him I will. that worked with told I couldn’t do ought get Surrogate’s I him hе also told that office the lawyer, lawyers. very would on all He said he bitter but he was quite time later that he went It was some it for him. like us to do property, Charley. him to see about the I went over with see over to ‘Charley said, trouble he tries to mahe a be m some will and I if Charley said, get copy ‘We will until we will.’ wait neto part things in the first of June before done.’ It was the other every anything Charley got went week until about it. We do will, changing part it.” on that June the last knew the risk he was that he testified likewise Bieber incurring: preparation course, “Q. knew, of a will con- You law, you Well, part did not? A. of the to be
sidered man— n position extent, I in a with but was it to that I knew drag helping upon him. I him didn’t down his insistence it was lawyer’s office. to a you lawyer Q. a will him draw when should told You knew lawyer? you I I him a A. do. have been in take would business. the title you knowledge, notwithstanding Q. went ahead and drew And right? supervised A. its execution. Isn’t that That’s this will and right.” and Bieber testified took several will which Baker one side of a sheet of occupied only single, prepare weeks to paper: GOD, “IN THE NAME OF AMEN. Mahwah, County Borough I, Scott Walter Jersey make, publish
Bergen of New do and declare this and State hereby any every Testament, revoking my will Last Will made. me heretofore my just expenses debts and funeral I that all direct First: my by my paid soon decease hereinafter named as after executors practicable. as is give, bequeath following: : I Second devise and to the George my Marrice, brother, Beamley Ave., wife’s of 8413 Los Angeles, California, $50.00. George Marrice, Jr., Beamley Ave., Angeles, California, of 8413 Los $50.00. my Smith, sister, St., Brooklyn, Mrs. Arthur G. wife’s of 297-15th $50.00. N. Y. Rocker, Rd., Mahwah, David E. Airmount N. J. $50.00. Church, Airmont, Y., Airmont Luthern N. $100.00. Church, Ramsey, Jersey St. James New $25.00. Jinks, Mineóla, Y., Ethel $25.00. N. Schenectady, York, Jessie Wieber of New $25.00. Mahwah, Jersey, $200.00, Fred Lorenz of New and Mr. and Mrs. surviver, Ramsey, Jersey, E. A. or Roberts New $50.00. any will, object pro- Should of the benefiriciaries under this to the thereof, any wise, directly contest, indirectly, bate inor whether contesting any provisions thereof, or aid in the same or or the *7 my whole, any part estate, then, thereunder, distribution of the or every event, any bequest in such I annul herein made to such bene- ficiary, my beneficiary absolutely and it is will that such shall be my any barred and cut off from share estate. hereby give bequeath my I and devise and unto Executors herein named, convey any the full to sell and and all estate, may real prices I whereof die seized at such times and for such my consider for the best interest of I estate. give my perpetual Cemetery also for care of lot at Airmont Cemetery, Airmont, rest, All New York. residue and remainder my real, personal give, bequeath estate and mixed I do devise and Bieber, absolutely. to Walter J. Baker and Charles E. Lastly, my appoint I nominate and two faithful friends Walter my J. Baker and E. Bieber Charles Executors last Will and Testament, my and I further direct said shall Executors required any give performance bonds the faithful for of their any jurisdiction. duties in court Whereof, my In Witness I have hereunto set hand and seal this day June, 6th 1951. (L.S.) Walter Scott Knoph___ Knoph Walter Scott Signed, published sealed, and declared the said Walter Scott Knoph, named, the testator above as and for his Last Will and presence present Testament of us who were both at the same request, presence presence time 'and who at his in his other, witnesses, of each have hereunto subscribed our names as on day ----------------------------------------------------, this --------------------------------------of 1951. Witnesses : residing Suffern, Melvin Litchult Y. at N. - residing Suffern, Edna Litchult at N. Y. Hughes rеsiding Edge, Theresa A. at River N. J.” clause, it attestation will be the failure to date the Passing for the perpetual the amount of the bequest observed that and that lot is left blank Knoph’s cemetery care of tucked away paragraph clause is carefully residuary his name as to how story with other'matters. Raker’s dealing into the will as executors is fantastic: and Bieber’s got “Well, up there, have he didn’t next to the last time that we went witnesses, any have two executors for the will. He said he would get The next that he should some. but no executors. We insisted up, up there, will drawn we went I had the to the last time * * * ‘Why said, He don’t wouldn’t to the executors he consent you Charley get you said, go go it if can’t T will on the will?’ on said, ‘Look, you you said, anybody help have ‘No.’ out.’ I He you help my going friends, me if I am if are closest been why you help sick, I would rather have the two of me now? don’t you.’ thing thought good I to be one consented I it was a of the executors.” residuary legatee he how became His only explanation had dispose we “On the ground equally meaningless: used be- to be if he sick or something, got of some property satisfactory hardly This is there no money.” cause had only a man one the estate of over justification taking met a few months before. un- will is likewise of the execution story
Baker’s to see and he went up that Bieber He insists believable. When until the end of June. shown each week *8 9th on the “that was testified, signed 6 he dated June will that “it the 6th.” Shown on It was prepared of June. 6th answered, “It is the 6th,” he unhesitatingly states the he to Knoph was made known where the will then.” Asked in the kitchen It was twice in his kitchen. time says, “Some read one was The final think, on the back and, porch. I once the afternoon of the day at 4 front o’clock porch on the to obviously reading Baker is referring it was signed.” was executed the will Actually drafts of will. of different Melvin friends, Mr. and Mrs. the home of his at by Knoph York, of both Suffern, New Litchult, presence Theresa who was produced Baker and Bieber with A. Hughes, unknown to Knoph, Bieber and who was time by up as the third witness. and turned it the will to the office
Bieber took surrogate’s it with the other wills Baker, but Baker did not over to lodge it with sta- there for Instead he put filed safekeeping. office, no record tionery. Contrary fee will, customary madе nor was filing a letter dated When demanded it back Knoph charged. “with a Baker refers to as a communication July (what 30 cent on Baker took the will from the stamp it”) surrogate’s it to Bieber. testified that gave “possibly office it,” 20 times I tried to he went to see Surro- get failing Dutcher in the first week When the gate August. surrogate will, not find the he who was then on Baker, could called vacation, Baker in touch with Bieber. promised get Mr. It took several meetings Phyley, surrogate retained who had been in the meantime with by Knoph, Bieber before Bieber delivered to Mr. various letters Phyley and a sealed the will and envelope power containing In all attorney. nearly two months between elapsed Knoph’s demand for his will and its return to his Neither attorney. Baker nor Bieber revealed to Dutcher that Surrogate they had done beyond anything drafting attending of the will. execution When Mr. Phyley the surro- apprised true he facts, called Baker and Bieber gate together. He testified that “I been have informed that the will not executors, made them only had they not only provided with a themselves what attorney, but appeared to be matter, serious had very they named themselves as residuary I them told that that legatees. put entirely different light the matter and that I on would have to take some action.” Neither of them denied to the had surrogate pre- the will. The next pared day surrogate suspended Baker as deputy surrogate. drafted Bieber is as peculiar as
the will. Some of its oddities may be indicated by italics: *9 By I, Knoph Scott thát Walter All Men These Presents “Know County Mahwah, Bergen Borough of New of and State of of the Jersey presents appointed and these and have made constituted friends, my appoint make, Walter J. two faithful and constitute do Bogota, .Heights E. Bieber of and Charles Baker of Hasbrouek my Jersey, County Bergen true and State of New of of the both uncertainty my attorneys in case of the handle estate to and lawful health, appoint Being my I therefor Walter ill it is of conditions. attorneys my take and Guardians to E. Bieber J. Baker and Charles care of me. authority attorneys my power hereby grant give full and I unto necessary requiste any thing perform whatever to do and fully purposes premisses all intents and in and about be done hereby ratifying present personally might if do I or cоuld as confirming attorneys my do virtue hereof shall lawful said all that any powers delegate of the to another however to without hereby them. conferred on affect, I will be power time when until such not be in shall This myself. to take care unable my Whereof, set hand and seal I hereunto have In Witness May, day 28th this (L.S.) Knoph Walter Scott Scott Walter , Signed, sealed delivered in the presence of Hibbard” Harold is as document extraordinary explanation
Baker’s will: as his unsatisfactory explanation said, him to Morris threatened send sister-in-law I his “As very He that he didn’t of that. said much afraid He was Plains. attorney] purpose [of the wife there. send his He got of himself. able to take care and wasn’t he sick in case told him that of him'. We would take care know how we wanted to paper anything had some sort him unless he do we couldn’t giving right—if right. he couldn’t take mind wasn’t If his us agreed drawn he to have himself—then care of him.” it for Mr. Bieber draw and had the chief points have summarized merely
We It serve no would purpose the respondents. testimony testimony. evasive and incredible their conflicting, detail however, facts stand forth welter, pertinent several Out *10 Baker and the of contradiction: beyond possibility (1) infirm Bieber knew full well the weakness and mental physical “client,” ities their nevertheless him of but they pursued week week over a of several months for their own period realized that they their own admissions advantage. By (2) in and to the execution of the will and attending drafting were in the attorney they engaging law without so do. were aware They fully a license risk were elected to they they running notwithstanding run the risk. They cannot innocence. When plead (3) in their nefarious estate, scheme to trapped Knoph’s grab still did not surrender will they but endeavored repent for almost two months retain it. Baker took (4) advantage of his official as position Deputy Surrogate Bergen County and, such, as as Clerk Deputy Probate Division of the Court, and Bieber County took of his Bergen advantage in the place of work court house to impose,on In Knoph. (5) eyes were in his Knoph’s partners; he correspondence refers to them as such he addresses several letters to them Baker is revealed in the jointly, although correspondence as ‘party first part’ Knoph’s eyes. There can be no doubt that the men two were conspirators a fraudulent adventure. Such a course illegal of conduct not only Heim, vitiates the will and the attorney (see In re 136 N. & A. but if J. Eq. (E. 1944)), pursued by a member the bar would call for the severest discipline.
II. Baker’s first of defense is that argument way he did not draw the will or the power of attorney but both were pre- Bieber, pared by who their supervised execution. Baker, however, seen, as we have was an active participant discussions which led to the successive drafts of the will and he was when the will present was finally executed. It is to Baker that Knoph wrote on May him that telling the two witnesses were “ready to the will sign any evening suits to come and Baker at you up,” least a dozen times in his to Bieber in referring used word or “us” “we” testimony and execution the drafting himself with connection as how advise Knoph Baker even undertook will. to. will “Yes, even without he could have the will changed: counts, dated will new The last can draw one. you up have to it, you go.through can add but you something clear facts the face of these it.” In procedure same with doubt that There can be no merit. has no argument much as to Bieber connec- to Baker looking of the will. tion with preparation *11 has no next that this court Baker contends law, the claiming of the unauthorized 'practice to punish law of the R. 2 the unlawful .Tll-1, practice S. making In re Frederick misdemeanor, is the sole and remedy citing a Inc., Ct. as author 1934) 12 N. J. Bugasch, (Sup. Misc. case not stand for the Bugasch proposition But the does ity. to that the was without jurisdiction former Court Supreme of the law practice by contempt; the unauthorized punish holds that in the of that particular it merely circumstances con by case it not employ remedy punishment would and “it is a is not the court tempt, power explaining a with which 791), should not be lightly” (p. holding exercised are entire accord. to Although power punish we law never considered unauthorized of the has been practice conceded, we last in this it was State, court of resort a in the former seen, have case Court Bugasch Supreme former in New Chancery Jersey Court upheld Sons, Inc., 95 Co. v. Carl Schonert & Engraving Photo where Chancellor Walker held: N. J. Eq. (1923) state, being duly licensed, “Practicing law in our without is only contempt court, separate proceeding— prosecuted to in a a be Eq. 261, 267, Merrill, In re 88 N. J. for the offender by adequately punished the court in which the offense is com 358; (P. mitted, supplement to Act of 1913 L. but the Crimes Comp. 60), Supp. 1st it is made misdemeanor.” § Stat. to the court last appealed Neither these decisions was resort, has their declaration courts power nor to the unauthorized punish by contempt proceedings practice law of the been questioned.
It now becomes for us to examine into necessary those Supreme Court to punish in the engaged practice unauthorized of the law. It is gen erally conceded throughout country control to the admissions bar members discipline the bar is inherent in the have judiciary. Here these powers VI, been conferred on the expressly Court ari. Supreme II, sec. 3 of the par. Constitution: “The Court shall Supreme have jurisdiction over the admission to the of law and practice the discipline of admitted.” But whether persons inherent or express, powers these over the admission discipline of members of the bar would be and futile if meaningless laymen law with might practice impunity. damage which would overtake the from such un public permitting authorized is law illustrated strikingly ease. The present reason for the unauthorized prohibiting practice of the law by laymen not to aid the legal profession but from the safeguard public disastrous results that are bound to flow from the activities of untrained in individuals, competent assuming learned profes sion which entails years of preparation without being *12 bound the by standards of high and professional conduct which are on integrity imposed members of the bar by Ethics, Canons of Professional which are zealously enforced by courts for the public good.
The power to control admissions and to
discipline
members of the bar necessarily carries with it the
to
power
prevent
laymen from
law.
In
practicing
Vermont
it was
provided by statute
Laws
(Gen.
rather than
1591),
consti
**
*
as here,
tution
that
of
“Justices
Court
Supreme
make,
shall
and
and
adopt
publish
alter or
may
amend rules
the admission
regulating
of
attorneys to
law
practice of
before
courts
this state.” When called
upon
Morse,
case of In re
98
85,
Vt.
ized for the unauthorized prac Nor does R. 2 :111-1 S. denominating interfere with- or in any tice of law as a misdemeanor way to for its prevent power punish this court from exercising Laymen may of such conduct. contempt persons guilty also for conduct be for of court punished contempt Hendricks, 113 In re criminal punishable proceedings, disci N. J. 93 & A. be 1933), just lawyers may Eq. (E. Penal statutes the court for acts which are crimes. plined by are an aid the exercise by not a limitation upon its of law. This judiciary power regulate practice states. In has been made clear the courts of our sister by Goodman, 346, 8 E. 2d 941 (1937), v. Ill. N. People denied, 49, denied, 728, cert. S. Ct. 302 U. rehearing S. 138, 777, 58 Ct. U. Court of Illinois Supreme S. S. said: power regulate practice pre- “The and define the of law is a judicial rogative department as one of the three 'divisions government by legis- created article 3 of our Constitution. The department may pass declaring practice lative acts the unauthorized illegal punishable. merely of, of law are Such statutes in aid supersede from, judicial and do not department or detract practice (citations) to control the of law. prescribe regulations study is inherent in this court to for the practice applicants pro- law and the admission of for the of that (citations) follows, power,
fession.
It
as an incident to such
jurisdiction
discipline
attorneys
disbar,
cause,
this court has
layman
licensed
it.
It would
anomalous situation if a
actively
engaged
law,
require-
in defiance of the
necessary
court,
stay
ments
therefor announced
could
suppressing
illegal
hand of the court from
his
acts. The
law,
courts, by
licensed,
of
illegal usurpation
both
courts and out of
one not
is аn
privilege
of an
and is a
court,
(citations)”
of this
Similarly
Supreme Court of Rhode Island in Rhode
Bar
Ass’n.,
Island
Ass’n. v. Automobile Service
55 R. I.
law. In the exercise of the it can statute, therefore, late in this matter. cannot avail these re- spondents practice if their admitted are acts within the field of Stripped issues, question the law. of all extraneous is the real proceeding. by complained peti- before us in If this the acts tioners, by respondents, and admitted are found amount practice law, summary prayed then action will be in order as petitioners.” only Xot are the cases referred to in their above impregnable but are logic reasoning, representative weight in to the effect that the unauthor country ized law in practice of is punishable contempt proceedings even such conduct also constitute a though statutory S., 726; offense. 7 Client, 16, C. J. P. Attorney § Law, 17-18; at Attorneys 2, 272, Am. Jur. § §§ Brand, Unauthorized Practice Decisions xii. (1937),
Bieber, who will and admittedly prepared in question, contends that he was not in engaged law so as to be for con subject punishment of this tempt court because his acts did not constitute (1) “a course conduct,” because he received no (2) compensa services, tion for his because in (3) instru preparing ments in he question se, pro because his acting (4) services were rendered out of court and so not constitute did an interference with judicial We cannot proceedings. agree with these contentions. To concede that the of law such subject to limitations would be but to invite the un qualified rapacious to prey upon public deny public protection such matters it which has a right to expect from this court.
In the instant case it is clear that both Baker and Bieber were in a “course of engaged conduct” over a extending period of several months during they advised Knoph with respect to matters and in legal accordance with such advice for him prepared two peculiar documents of legal
far-reaching in the life Each of these importance Knoph. documents very should have been obviously prepared one who did not have a do not con- of law. We knowledge sider it to be that a “course necessary person be engaged of conduct” over a of time in order to period be engaged the practice of law. To such a test would result impose absurd wholly situation of this called upon court being *15 to determine draw, how a many wills or how layman may many advise, or, “clients” he may many more how bluntly, times he may defraud the his before he public by impositions be deemed to be of law and thus practice engaged subject the of power of court. We are superintending the firm opinion act, that a e. the a g., of single preparation will or the of a attorney, in drawing may appropriate circumstances constitute practice the law. There is no sound reason the of a why act for the doing single calling skills and of an learning attorney does not constitute the law practice just as most certainly performance of a a single operation constitutes by surgeоn practice The medicine. amateur at law is as dangerous to commu- as an amateur nity would surgeon be.
The contention that Baker and
Bieber were
engaged
practice of law because
fee for
they
no
charged
their services could be
disposed
adequately
merely
out that
pointing
compensation
and received
may
expected
in forms other than cash. Their
action
themselves
making
of an
residuary
estate which
legatees
they
reason to
.had
believe
return to them
might
several thousand dollars apiece
can hardly be
characterized
The
gratuitous.
more com
plete
however,
answer to this
is well
argument,
expressed by
the Nebraska
Supreme Court
the case of State ex rel.
Barlow,
294,
Wright v.
131 Neb.
339
Certainly, no one would
contend
such acts do not constitute
knowledge
attorneys
of law.
is a matter of
It
common
appointed
indigent persons,
are
the federal
courts
to defend
charged
courts,
with crimes in
and that
such
render such ser
compensation.
scarcely
vice
It
without
can
be said that
the defense
person charged
of a
with a crime in the federal court
is not
might
surgeon
performs,
of law.
It
as well be said that a
who
reward;
tonsillectomy
appendectomy
prac
without
fee or
is not
‘
ticing surgery.
authorities,
holding
Other
to the effect
charging
receiving
unnecessary
prac
of a fee is
to constitute the
Snively,
167,
(2d) 942,
tice of law are Ferris v.
P.
Wash.
278; People
Payers,
A.
L. R.
v. Association
Real Estate Tax
354 Ill.
right persons reрresent legal no avail to Baker and resulting Bieber here. penalties *16 from the unauthorized be avoided of law cannot practice an a a result such merely by showing practice interest was matter of the transaction acquired subject involved. Neither Baker had interest in any nor Bieber in his them Ivnoph property which would to permit prepare him him for a will and a and advise with thereto. The fact themselves respect they projected into the documents does they exculpate them prepared from law only unauthorized but charges practice dullard tends to their offense. a would ever compound Only unauthorized be found guilty engaging practice law if its could be avoided consequences merely by preparing foT and the “client” execute document a having designating unlicensed an “attorney-in-fact.” practitioner
With to the assertion that the respect acts performed were did out of court therefore not constitute the un law, authorized it will refer suffice to to our practice recent decision P. Stack v. G. Inc., J. Garage, N. 120-121 in which we (1951) stated: determining “In whаt is the of law is well it settled that performed place it they is the character of the acts and not the where not, are done that therefore, is decisive. The of law is necessarily engaged limited to the conduct of cases in court but legal knowledge, ability training, whenever and wherever skill and required.” are The respondents assert the presentment does not them with fraud charge but with the merely preparation of will and a power of would attorney. They have the court in on the matter passing their ignore nefarious conduct on an imposing aged man, friendless who to his thought subsequent disillusionment that he had a on a rely right public official and a man who transacted his business in a courthouse. Here as in all other cases where court is called upon to mete out we punishment, are bound take in con- sideration all of the facts on their bearing offense. PTor are Baker Bieber to be exonerated because were they detected in their fraudulent scheme to acquire estate before Knoph’s they could their profit by machinations. They claim, more- over, that have they nоt been given adequate but hearing, there is no merit to the contention. When the depositions taken, were had they right cross-examine, and did cross-examine, the prosecution’s witnesses. The case involves no real conflict of Baker and testimony. Bieber could well bo convicted testimony they on gave direct examina- tion. Confronted with the facts on the depositions taken by the prosecution could they not deny the instead charges; merely sought ineffectively justify excuse.
While the inherent
the judiciary to punish
is a
one, it is
necessary
also one that will not
need to be exercised
It
frequently.
is not to be anticipated
*17
will
many laymen
be as brash and as
as
overreaching
Baker and
Moreover,
Bieber.
“In trivial or unimportant
instances of
the
illegal practice
law,
it
used,”
should
be
not
Island,
Ass’n.,
Rhode
Bar Ass’n. v. Automobile Service
supra,
55 R.
I.
Case, J. Criminal is a (dissenting). summary which proceeding operates of human derogation liberties. It used should not be when except reasonably to the necessary vindication of the and the authority of the court. prestige is not This such a case. The reasoning brings me to tliat conclusion is as follows.
What is the ? essence of the charge against respondents Is it drew a they a will and in so did law, that which doing licensed to they, being had no to do? That and right more? It now is nothing rather generally courts, their accepted under con- have powers, tempt authority punish those who without law; and if objective right prosecution as thus then circumscribed court initiate the is clear and the proceeding are, issues whether the acts so whether,' unlawful alleged constitute practice, having authority, should, discretion, court in wise it, аnd, exercise whether the finally, either or respondents, both, committed the acts of which on If, are accused. hand, other circumstances of the are case such that the acts do not constitute unlawful charged or their practice, character as such is so problematical as to make them a mere and the real technicality, burden of the is that charge a fraud respondents upon or took perpetuated unconscion- *18 342 which another, court, then for reasons
able advantage as a be- state, upon contempt, I shall not to proceed ought otherwise, one, perpetrate cause no or is licensed lawyer in fraud, prosecution a and the becomes effect proceeding words, an in other society, prosecution offense against crime, with our criminal without semblance of conformance should, in my opinion, In event court processes. any unless the contempts avoid to its over arbitrary power resort the need and there is no other clear, adequate case is urgent course. in its nature.
The is criminal punitive proceeding Inc., 12 N. J. Misc. 788 Ct. (Sup. In re Fredеrick Bugasch, Merrill, 1917). In re 88 N. J. 261 1934); Eq. (Prerog. “is a be may adjudge * * * an for a or a year, longer followed by imprisonment Lance, well Rhinehart v. 43 term, day.” as as for single the re If, L. 311 Ct. 1881). charged, N. J. (Sup. license, are, entirely law without a spondents practiced offense, this of a criminal independent proceeding, guilty and are punishable R. el seq., S. 2:111—1, thereunder: Any person or licensed as counselor “2:111-1. * * * (a) Engage, in this state that shall: at law * * * guilty of a misdemeanor. Shall be of law ‘practice chapter law’ as used in shall term this 2:111-3. preparation engaging in the wills or con- include the veyances.” law said that without practicing Our courts have repeatedly prosecuted is a criminal offense and a license under the In of crimes statute. usual to the way punishment Inc., N. Photo J. supra; Engraving re Frederick Bugasch, Sons, J. An 1923). N. Eq. (Ch. Co. v. Schonert & statute would follow course which under the accusation maintained for the jealously protec has been provided accused, indictment by a criminally including of one tion which, in a petit jury trial before appraising jury, grand falsehood, sees and hears the witnesses a trial truth over presided aby judicial officer to the rules of according evidence, and the from a right appeal conviction. None of those are rights protections accorded the respondents On the proceeding.' contrary, court indicts, prose- cutes, tries the on a case paper transcript testimony, *19 adjudges guilt, imposes unrestricted sentence, and is subject to no appeal.
I do not suggest that here followed is unusual in strict or that a criminal contempts is a contempt se per criminal J, within the proceeding application 8, of art. par. and related of our paragraphs, Constitution. That is just it point; is a sui it proceeding generis, includes offenses easily committed, is a remedy used, it is easily not geared to our a crime, trial for conception and it should be limited to those inherent and needs urgent which are its reasons for existence. As Chief Taft Grossman, Justice said in Ex parte U. S. L. Ed. 527 : (1925) power protect by punish- “Tlie of a court itself and its usefulness ing necessary, contemners is of course but it is one exercised without restraining jury many guaranties a influence of and without rights protect against unjust which the bill оf offers to the individual conviction.” The in the of a contempt Grossman case lay flouting court order. the'need for recedes Manifestly, summary action as the offense more related correspondingly distantly becomes to the court or of its orders. There real that any danger an unwise use autocratic contempt adjudge reach an end far may ultimately from the quite target. herein has been procedure as follows: Bergen
. County Committee on the Unauthorized Practice of Law laid before the an court unverified made paper information upon and the statement that Bieber drew a will centering upon executed and in Knoph which were various bequests, Baker residuary and Bieber and a gift clause naming executors, these men as and that Bieber also prepared had execute a over attorney his property Baker and Bieber
naming attorneys fact to act if should Knopf become mentally incompetent. Upon informal made an presentation court order directing Baker and Bieber to show cause why they should be of court for adjudged guilty the аdminis- bringing tration into justice the unauthorized disrepute 'practice of the law and should why they not be punished therefor, the matter and appointing prosecute present court, same to the that depositions directing In taken' notice. accordance with upon depo- order were sitions taken in the presence respondents their respective attorneys as well as of the for the prosecutor court before who was a person notary and certified public shorthand reporter but who had no to swear except witnesses, take down what said stenographically On certify transcript. the court heard transcript of counsel and came to its both arguments conclusion as to and sentence. The court has at guilt no time seen the *20 witnesses; or it respondents any has no report had as from a referee master either the upon of finding facts or otherwise. From the determination thus made there is no appeal. Upon the sentence to be there pronounced is no limit. The power which the court has exercised is vast and I the use word irresponsible. “irresponsible” the sense that court’s the are absolute and findings beyond review unless there be some federal constitutional question involved.
Flo of charge or other fraud is conspiracy laid the against respondents. presentment which, contains within nothing that rule to which a certainty person accused crime is entitled, may.be considered as such. It charges Bieber both the and the prepared power will. Bieber says he them. Baker prepared says that Bieber them and prepared he, Baker, did not. in mind that Bearing no con- I find spiracy charged, which Baker nothing upon may be of an act of unlawful adjudged guilty practice. the
As to attorney: Bieber drew the Both paper. he and Baker were to the parties transaction. It was upon them that was conferred. Parties draw between instruments themselves without illegal committing practice. That is so. “A” obviously borrows from money “B”; law; neither is an at but “B” draws a party attorney note—a promissory the debt legal instrument—declaring and its terms and has stating to obligation repay “A” it. No one say will that either has sign transgressed upon illegal practice. If “B” in some thеreby way perpe- trates a fraud “A,” he is upon amenable to law his But wrong. introduction of fraud does not make an illegal practice the law that it such which without is not an I act. conclude that drawing executing power of did either lay respondents open to a charge unlawful practice.
As the will: knew that neither Baker nor Bieber lawyer. He also knew that those men drew the one of will which he executed. He wanted an it that He was way. eccentric who did not like and did not like rela- lawyers his tives well leave them his little estate. He enough says that he did not know will contained a paragraph leaving Baker residuary estate to That Bieber. I do not believe. his By story own he had solicited of no neighbors, kin, in the unsuccessful effort them to persuade to become his residuary that the legatees. suggestion drawing one under will such an circumstances was affront court or would tend discredit dignity the esteem in believe, are held does not, courts I have sufficient to hold substance its own Of scarcely more force is weight. act, that such isolated without earlier acts argument of like nature and threat without оr likelihood of repetition, *21 was a substantial encroachment upon emoluments or the of the bar. Thus the reasons for standing activating proceed- under extraordinary ing contempt power courts fade It is be away. also to remembered that the efforts of men the accused no actual results got is not the accuser. one drawing
There is
whether the act of
grave question
instrument is one
will,
draftsman
when the
particularly
constitutes
of the executors and
of the residuary legatees,
one
Pennsylvania
of the law. The
Court
practice
Superior
will
aby
of one
that the preparation
expressed
opinion
authorized
trust
an officer not
company acting through
prohibiting
a
'of the statute
practice law was not
violation
Estate, 117
the unauthorized
of law.
In re Umble’s
practice
15,
Pa.
It is courts that the recognized generally power to con vict sentence on a is an contempt autocratic power which is to used most sparingly only instances. urgent It Court, Lance, said by our Rhinehart Supreme v. supra, that “the to commit at discretion and for a discretionary term a is imprisonment transcendent prerogative power * * * which, best, at arbitrary power, and liable to abuses.” great Inc.,
In re Frederick Bugasch, has supra, resem strong the instant blance to case. Hudson Bar County Associa tion, in with the cooperation Conference of the Bar County Associations, made application rule reargue to show cause the defendants should why not be adjudged *22 law without the Court in that Supreme they practiced it was practice, beеn licensed to do so. The illegal having rendered the defendants consisted of service charged, will, the estate of a decedent in the of her preparing probate and the and for inheritance tax inventory purposes, filing and releases. and of two bonds drawing recording refunding associations The was made that the bar sought argument the was instituted as a court that cause impress upon a nationwide movement the American sponsored by part Bar Association unauthorized practitioners against law. stated: opinion is, course, impressed . “While the court and concerned with associations, particularly of all and which efforts those of the bar powers, purposes preservation have for its the vindication and of its they praiseworthy objectives, nevertheless we are wholesome and opinion in- are of the that we not resort to or exercise the should herent, extraordinary, right but less none the drastic and punish, circumstances, appear all who this court under those being to have committed an act acts be construed as contempt in of court. is not and should not be It lightly.” exercised
The court hold that under the facts cir- proceeded to “the cumstances of the case it would not exercise mighty power” to punish through alleged wrongdoers were process prosecutors contempt proceedings; if law not without a 'that the defendants remedy; practiced without a license were criminal offense guilty were to the laws of state. answerable criminal case to be Bugasch appears rule as stated gen McCallum, 57 In re P. 2d country. erally accepted Ct. Wash. was a (Sup. 1936), proceeding of the law without a based on alleged illegal practice deeds, real contracts preparing mortgages. license Inasmuch as the accused had desisted from after from the state bar association the court the second warning extraordinary refused to of con process punish through since the court considered that especially tempt proceedings, license, if law without a defendant, guilty practicing under the criminal laws of the state. The punishable much opinion quotes bodily Bugasch so *23 opinion, supra, as I have within marks. placed quotation
In Rhode Island Bar Associalion v. Automobile Service
Association,
related to the administration affects the public welfare.”
A case
relied
as a
strongly
upon
precedent by
prosecutor
Goodman,
herein is that of
ex
People
Chicago
rel.
Bar Ass’n. v.
from, suppressing
illegal
law,
his
acts.
both
courts
courts, by
licensed,
illegal usurpation
and out of
one not
privilege
contempt
of an
and is a
of this court.”
In all of the cases which I have found the acts said to have
been a
of court were
continued
aggravated
reasonable
with the
acts of
beyond any
comparison
alleged
unlawful
are: In
the instant case.
them
Among
Morse,
White,
re
Mont.
In re
1918);
Pac.
Ct.
(Sup.
The function of criminal is to contempt proceeding the court to its and power, authority, enable guard dignity Merrill, In re because the court has supra, integrity, cf. the over admission of it effect to authority attorneys may give that the law authority by by thоse preventing practice however, The whom it has not licensed so to do. proceeding, extraordinary is the exercise of an which arbitrary power be, is, reason of its incidents should used. by sparingly where chiefly It has been exercised instances the dignity the court and its writs are directly and, seldom, involved where the lies in the offense doing acts which are the exclusive an at law. privilege
I that brethren are to their con apprehend my impelled clusion conviction respondents conspired victimize an old man to their unearned an act advantage, which is not law and any licensed commission to practice which is not more an affront to the of the court than dignity is offense The cart should not be any society. against before the is whether there put horse. primary question has been unlawful and whether the unlawful as warrant such resort to contempt proceeding. unconscionable incidents the extent bear properly upon and not the technical of unlawful punishment upon guilt fraud, exists, I if should practice. a criminal it agree it, but I consider that punished, any of those since incidents which are the for exercise peculiar justification of the court’s drastic contempt, weight accusation, the conviction should be reached in the way reached, convictions for other offenses are against society of our criminal in that namely, by processes Only law. can the a defendant trial way to a fair a criminal right on with accordance of our constitution and charge spirit laws be maintained. It is well to recall that the application acts of unlicensed contempt power persons law is a modern extension of doctrine of con- practicing and is like unto other tempts any nothing profession walk in life. Consider, illustration, profession of great medicine, the unlawful practice of contains equal *25 threat to the emoluments licensed practitioners per a threat of the The haps greater safety public. State Board of Medical Examiners has authority to grant R. S. licenses, 45:9—16, revoke but not to unlawful penalize Technical are violations practice. prosecuted by summary R. suit in on the s. board, 45:9-22; court of the complaint suсh, offenses as whether society but licensed or against course, unlicensed follow the usual criminal persons, abor tion, R. S. 2:105-1. have,
I drawn conclude that Baker has not been shown to instrument; either since it was. attorney, that the transaction, drawn one was not the parties law; and that will question presents justifiable doubt. On the whole I there is not case believe con- reason for of criminal drastic pursuing procedure there is an tempt, remedy processes adequate the criminal set in the clearly courts and that the precedent cases, and the be followed. Bugasch supra, McCallum should I should add that received from Perhaps my impression we must typewritten exclusively rely transcript upon is that evasive, was an un- altogether forgetful witness; and at he was a vital the same time convincing This, witness on the as much as question over-reaching. else, leads me to conclude that there should be anything trial in the usual course.
The does not atone for a mistaken penalty lightness establishes procedure. precedent principle. an extended the next case
punishment imprison- ment.
I a dismissal and a therefore favor proceedings direction to the matter in the channels of criminal place law.
For Justice and Justices guilty—Chief Vandekbilt, Btjkling Hehbk, Waciieneeld, and Aoicekson—5.
For not guilty—Justice Case—1. Not guilty
For as to Bieber. as Balcer—Justice guilty Oliphant—1.