289 Mass. 607 | Mass. | 1934
To The Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court have considered the questions propounded by an order adopted on June 29, 1934, and transmitted on July 5, 1934, after the prorogation of the General Court. Copy of the order is hereto annexed. The following opinion is respectfully submitted:
The questions relate to a pending bill entitled “An Act relative to the unauthorized practice of law and prohibiting certain acts and practices.” The proposed bill by §§ 1 and 2 revises respectively §§46 and 47 of G. L. (Ter. Ed.) c. 221, by § 3 repeals § 49 of G. L. (Ter. Ed.) c. 221, and by § 4 enacts expressly that nothing in the act shall be construed as a limitation upon the power of the courts to
It is inherent in the judicial department of government under the Constitution to control the practice of the law, the admission to the bar of persons found qualified to act as attorneys at law and the removal from that position of those once admitted and found to be unfaithful to their trust. While the judicial department cannot be circumscribed or restricted in the performance of these duties, appropriate and essential assistance in discharging them may be afforded by the enactment of statutes. As the questions are framed and as a general proposition, valid permission to practise law cannot be given by the General Court except subject to the requirements for admission to the bar established by the judicial department. Opinion of the Justices, 279 Mass. 607.
So far as the practice of the law relates to the performance of the functions of an attorney or counsellor at law before the courts, it comprises mastery of the facts and law constituting the cause of action or legal proceeding of whatever nature, the preparation of pleadings, process, and other papers incident to such action or proceeding, and the management and trial of the action or proceeding on behalf of clients before judicial tribunals. These matters closely concern the courts. Legislation forbidding such practice of the law by corporations or associations, or by individuals other than members of the bar, would be within the competency of the General Court. It would tend to enhance the effectiveness of the judicial department. Crimes might be established for the infraction of prohibitions of such practice of the law. G. L. (Ter. Ed.) c. 221, § 41. Commonwealth v. Grant, 201 Mass. 458. Civil remedies in equity or otherwise for the prevention of such infractions might be provided and made plain.
It would not be within the competency of the General Court to enact legislation designed to permit such practice of the law “by corporations or associations or by individuals
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. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These “customary functions of an attorney or counsellor at law”
Individuals have been permitted to manage, prosecute or
It follows that the answers to questions 1, 2 and 4 are that legislation forbidding the practice of law as therein described by corporations or associations or by individuals other than members of the bar of the Commonwealth is permissible, but that legislation permitting the practice of law by such persons would not be constitutionally competent for the General Court.
It is not practicable or necessary to answer question 3 further than has already been done and as is set forth at length in Opinion of the Justices, 279 Mass. 607.
Abthub P. Pugg.
John C. Cbosby.
Edwabd P. Piebce.
Feed T. Field.
Chables H. Donahue.
Henby T. Lummus.
Stanley E. Qua.
Matter of Co-operative Law Co. 198 N. Y. 479. People v. Alfani, 227 N. Y. 334, 337-338. People v. Peoples Stock Yards State Bank, 344 Ill. 462, 474. In re Eastern Idaho Loan & Trust Co. 49 Idaho, 280, 287. People v. Peoples Trust Co. 180 App. Div. (N. Y.) 494, 497. In re Otterness, 181 Minn. 254. People v. Merchants Protective Corp. 189 Cal. 531, 538. State v. Merchants Protective Corp. 105 Wash. 12, 17. State v. Retail Credit Men’s Association, 163 Tenn. 450. People v. Title Guarantee & Trust Co. 227 N. Y. 366, 372. Boykin v. Hopkins, 174 Ga. 511, 517-523. Black & White Operating Co. Inc. v. Grosbart, 107 N. J. L. 63, 68. Unger v. Landlords’ Management Corp. 114 N. J. Eq. 68, 72. People v. Motorists Association, 354 Ill. 595, 599. People v. Association of Real Estate Tax-payers, 354 Ill. 102, 109. Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23. See Creditors National Clearing House, Inc. v. Bannwart, 227 Mass. 579; State v. St. Louis Union Trust Co. 335 Mo. 845.