State Bar v. Cramer

116 399 v CRAMER MICHIGAN STATE BAR OF (Calendar 11). 6, Argued No. November Docket No. 56413. 30, Decided 1976. December complaint against Michigan filed Harold The State Bar alleging Graham, Virginia Cramer that Gordon and Michael engaged in the unauthorized the defendants were Plan” kit. The Divorce defendants law their "Do-It-Yourself allegedly kit who used divorce advertised divorce, filing pleadings prepared for with could obtain a advice, courts, gave on and advised customers and sold procedure. Wayne filling pleadings The Circuit out court O’Hair, J., Court, judgment permanently entered a John D. pertaining enjoining certain activities the defendants from advising persons Defendant Cramer was subse- divorce. about contempt injunc- quently adjudged guilty for of the violation Bashara, J., Appeals, Court of P. on tion several occasions. 19075). (Docket Churchill, JJ., affirmed No. and Danhof and appeals. Held: The defendant complied judgments of must be with 1. All orders and courts private promptly. determinations of the law Persons who make contempt generally obey an order risk criminal refuse ultimately an if order is ruled incorrect. Violation of even may contempt, invalid court order nonetheless treated as or, jurisdiction except to issue the where court lacks order perhaps, opportunity has no to contest the where the defendant validity order. contempt is 2. The civil and criminal difference between change respondent’s conduct threat- the former seeks to change it, ening penalty him with a if he does not while punish past misdoings him for which affront latter seeks court; contempt being past dignity for miscon- criminal [1, ^{[5] [4] [3]} [6-19] What amounts 2] 17 Am Jur 17 Am Jur Am Am Am Jur Jur Jur 2d, 2d, 2d, Contempt 5. References 2d, Attorneys 2d, Contempt Contempt Contempt § §§ § §§ of law. 151 ALR 781. at Law 73-90. 34. Points 5. 47. §§ in Headnotes Cramer Bar v duct, way purge convicted to there no for one so himself of contempt. 3. guilty There is no doubt that the defendant was found contempt April civil the 1973 when circuit court told her herself, jailed purged that she until would be she and released following promised day obey her the after she to the order. therefore, finding is, convictions, That The other affirmed. however, despite by judge, the the trial characterizations were contempt; jail of the criminal sentences and fines were to punish past proceedings the defendant for conduct. Because the proceedings punishment were conducted as civil but led to for contempt, criminal the convictions are reversed. attempt Any lasting, 4. all-encompassing to a formulate practice definition of of law is to doomed failure for the reason system jurisprudence practice that under our of such must necessarily change everchanging with the business and social practice order. No essential definition of the of law has been descriptive articulated and the definitions which have been agreed upon only permitted disposition from time to time have specific questions. Laymen practice” of are excluded from "law solely protect public. purpose public protection to the This of put must dictate construction on the the term "unauthorized' practice power regulate practice of law”. The of the to state the law, however, abrogate rights of cannot be exercised so of individuals secured the Constitution. general public 5. The advertisement and distribution the of together forms and documents used to obtain a divorce with any practice related textual instructions does not constitute the goes beyond merely of law. But making the defendant well necessary available those materials to effect a divorce. She "professional guidance” personal advertises to her "clients”. A arranged conference is the between defendant and her client to (cid:127) prepares discuss the divorce. The defendant the documents proceedings, occasionally incident to the divorce files com- court, pleted personally forms in advises as to clients proper testimony. provides personal 6. To the extent that the defendant advice peculiar specific engaged marriage, dissolution a she is in the "unauthorized of law”. part, part. Affirmed reversed in per opinion Justice Williams concurred with the curiam agreed necessity professional with the for skilled assistance in matters, legal only symp- but wrote that further this case is problem profes- legal tom created the failure of the legal reasonably sion see sufficient services are available 399 very very people. The and the of all rich and within means generally lawyers, poor but admitted that access have legal adequate services. groups do not have middle-income only by action to be achieved make public will Protection those who reason- have services available to professional skilled joined Justice as to Levin able need them. Williams Justice legal availability concerning services. his remarks concurring, Kavanagh, Levin with Justice con- Chief Justice vacating convictions defendant’s criminal curred in contempt. judgment affirming of civil He also contempt engaged agreed in the is not unauthorized that the defendant selling legal or He forms "divorce kits”. of law when prohibited however, not, agree should the defendant did preparation assisting forms these individuals in or specific peculiar rendering of a to the dissolution other advice counterproductive. marriage, prohibition is Her because the they prepared go are at court less than customers will afford, people present. Many divorces cannot think seek who wait, afford, eligible, lawyer, they or cannot cannot provides for The defendant an alternative services. aid them, processing their own divorces. that of emphasize separately to that: Justice Levin also wrote filing papers Preparation to obtain an and of standardized 1. there are no issues of child divorce where uncontested no-fault alimony custody, support, settlement does not property child judgment lawyer, require professional of a and therefore the practice of law. does constitute the the line should be drawn 2. is unclear where While it may readily lay assist cases where a advocate between those right persons of self- their who wish to exercise constitutional encouraged representation cases where the client should and be lawyer, it has not been demonstrated obtain the services of a to stan- criteria are determined and the that once the relevant established, requires oversight by case-by-case application dard legal profession. of the member organized bar, available the which has not made 3. The person counseling exercise which would enable a minimal say right self-representation, that this cannot heard to his be provide the of law. which it does not is service securing Legislature the address the issue of 4. The should part self-representation people their constitutional larger problem providing legal services for of the circumstances. moderate (1974) part, App 223 NW2d 713 affirmed 56 Mich part. reversed State Bar v Cramer op the Court Contempt 1. —Courts. judgments complied All orders courts must be and with private promptly; persons who make determinations of the law obey generally contempt and an order risk criminal refuse to ultimately even if is ruled incorrect. the order Contempt 2. —Courts. orderly expeditious justice by The and administration of the requires jurisdiction courts court that an order issued with subject person obeyed by over the must be matter and parties proper orderly proceedings. until is reversed Contempt 3. Order. —Courts—Invalid may Violation of invalid court order an nonetheless be treated as contempt, except jurisdiction where the court lacks to issue the or, perhaps, opportunity order where the defendant has no validity contest the of the order. Contempt Contempt Contempt. 4. —Civil —Criminal contempt difference between civil criminal change respondent’s by threatening former seeks conduct it, penalty change him with a if he does not while the latter punish past misdoings seeks to him for which affront the dignity court; being contempt past of the criminal for miscon- duct, way purge no one there is for so convicted to himself of contempt. Contempt Contempt. 5. —Civil guilty contempt disobey- A defendant was found to civil ing injunction an where the trial court told the defendant she herself, jailed purged would be until she her released following day promised «bey order; after she defend- keys prison pocket, ant carried in her own and the essentially action is civil. Attorney 6. and Client —Unauthorized Practice. Laymen practice” solely protect are excluded from "law the to public; purpose public protection of must the con- dictate (MCL put practice struction on the term "unauthorized of law” 27A.916). 600.916;MSA Attorney 7. and Client —Unauthorized Practice —Constitutional Law. power regulate practice the

The state to the of law be cannot Mich rights abrogate of individuals secured exercised so as Constitution. Attorney Practice —Divorce—Ad- and Client —Unauthorized

8. vertisement. general public of to the forms

The distribution advertisement and together any with a divorce and documents to obtain used practice not constitute the related textual does instructions 27A.916). (MCL600.916; law MSA Attorney 9. Practice —Divorce—Pro- and Client —Unauthorized fessional Guidance. guidance” "professional

A "clients” defendant who advertises arranges obtaining divorce; personal conference with a divorce; summons, prepares complaint, client to discuss the divorce; occasionally files to the and all documents incident court; personally completed advises forms and clients with proper testimony engaged in the is law to the 27A.916). (MCL 600.916;MSA Attorney 10. Practice —Professional and Client —Unauthorized

Guidance. that the interests has a assured involved matters, custody, property as child contract and divorce such rights, inheritance, support, prop- separate property, and are Bar; erly represented by members of the extent peculiar non-lawyer provides personal advice that a defendant specific marriage, engaged in dissolution she is 27A.916). (MCL600.916; practice of law MSA unauthorized

Concurring Opinion JJ. Williams Availability Attorney 11. Practice — Client —Unauthorized Legal Services. profession legal to see that skilled The failure sufficient reasonably and within the means of services available people a vacuum will be filled all creates engaged in the of law. unauthorized Attorney Availability 12. and Client —Unauthorized Practice — Legal Services. very very poor

It is that the rich have access said generally groups lawyers, but admitted that middle-income State Bar v Cramer legal services; adequate protection do not have unprofessional practice law will not be achieved cells, prison by prompt, positive, vigorous court orders but or imaginative professional and action to make skilled services available to those who have reasonable need them. Concurring Dissenting in Part and Part J., C. J.

Kavanagh, Attorney 13. and Client —Unauthorized Practice —Divorce— Preparation of Forms. provided legal A defendant prepa- who forms and advice on their persons uncontested, seeking ration to an "no-fault” divorce (MCL engaged practice was not in the unauthorized of law 552.6, 27A.916). 600.916; 25.86, MSA Attorney and Client —Unauthorized Practice —Divorce. 14. Prohibiting assisting prepara- a defendant from individuals rendering peculiar tion forms or other advice specific marriage uncontested, dissolution of a in an "no-fault” proceeding divorce as the unauthorized of law is un- (MCL counterproductive 552.6, 600.916; 25.86; sound and MSA 27A.916).

Separate Opinion Levin, Attorney and Client —Unauthorized Practice —Divorce. 15. Preparation Sling papers of standardized an obtain uncon- tested, "no-fault” divorce there where are no issues of child custody, support, alimony property child settlement does not require professional judgment lawyer, of a and therefore does constitute the of law. Attorney Self-Repre- 16. and Client —Unauthorized Practice —

sentation —Professional Guidance. While it is unclear where line should be drawn between those lay may readily cases where a advocate who assist wish right self-representation to exercise their constitutional encouraged cases where the client should be to obtain the lawyer, services of a it has not been demonstrated that once the established, relevant criteria are determined and the standard case-by-case application requires oversight by a member of the

legal profession. Opinion of the Court Self-Repre- Attorney Practice — and Client —Unauthorized 17. Legal Availability Guidance — sentation —Professional Services. bar, counseling organized made available the has not which self-repre- person exercise his enable a would sentation, say that this service which does heard cannot be provide practice of is the law. Attorney Self-Representation—Availability of and Client — 18. Legal Services. securing people Legislature of the issue

The should address self-representation part of the their of constitutional larger problem legal providing services for moder- ate circumstances. Attorney Practice —Professional Client —Unauthorized 19. Guidance. law, functionally, to the rendition of relates professional judgment of call a services for others that for judgment lawyer lawyer; professional of a is of the essence general body philosophy ability relate the his educated specific legal problem of a of law client. to a Gerald Warren plaintiff. for

W. persona. propria Virginia Cramer Amici Curiae: T. Kerr for Pro-

William Michigan Clinical Law gram. Reed, Alan W. Houseman and William

Robert L. Burnham Michigan Legal Services. convo-

Per Curiam. The this case is history confusing. The business defendant luted controversy is is the source of this Cramer following Judge findings in his described O’Hair hearing 1972. a on December May, Graham and Gordon "In defendants State Bar v Cramer Opinion of the Court partnership formed a to conduct business that con- 'divorce kits.’ sisted sale of so-called Later in August they expanded their firm to include the defend- partner. ant Cramer Gordon-Graham business is as a Their known as Associates, and its & Cramer officésare McNichols, Detroit, Michigan. located at 15800 W. "Defendants, admittedly attorneys, are not who have by advertising solicited over 400 customers or clients newspapers having general 'DIVORCE’ in daily circu- throughout Michigan. lation self Divorce the State of A 'Do-It-Your- Plan,’ it, as defendants characterize is made available to members of the for a fee óf $100, plus $75 costs. $30 $50 person "When a purchasing is interested in defend- Plan,’ ants’ 'Do-It-Yourseif Divorce he has a conference the conference place at defendants’ At business.

the client is advised that defendants are not lawyers, they provide but that do the forms and service which enables one to obtain his own A 'Ques- divorce. tionnaire-Agreement’ completed before the termina- tion of the conference.

"From the information set forth in the client’s com- pleted questionnaire, complaint and summons are prepared by incident Thereafter, the defendants. all documents to proceedings prepared the divorce are for the signature. or completed client’s the court’s docu- ments are filed with the court upon and served party, adverse clients are not if necessary, by the by defendants or pursuant to the defendants’ instructions. Clients given forms, a so-called kit of divorce but each completed form is at executed defendants’ office as appropriate step proceed- needed at each of the divorce ings. evidentiary hearing "Before the entry for the judgment, provide the defendants their clients with a setting suggested statement fered forth testimony to be of- by the client to suggested the court and a list of questions to be asked corroborating the client of a witness. stages "At all proceedings the divorce defend- ants, expressly inferentially, or advise the clients as to procedures involved, legal provide all forms to the divorce proceedings, provide incident the service 399 Court provide optional forms and complete

to the aforesaid documents. serving all filing in assistance they present primarily that at "Defendants state Divorce Plan’ making their 'Do-It-Yourself interested proceedings anticipate divorce to available who questions not involve rela- that are and do uncontested property. In children, marital alimony to or tive (Footnotes omit- selective.” past they not been so have ted.) alleging that Michigan, The State Bar of law, constituted the unauthorized engaging in this sought defendant enjoin Judge O’Hair January business. On perma- an order entered Wayne Circuit Court from: nently enjoining the defendants "(1) qualified Holding themselves out to persons interested in to render advice and service to Michigan; obtaining a in the courts of divorce "(2) persons seeking Rendering counsel and service obtaining relationship by judg- a marital to dissolve ment of divorce and, Michigan; in the courts of the State "(3) kits, Furnishing offering furnish forms or completion in their or execu- documents with assistance tion, persons seeking a marital relation- to dissolve ship obtaining judgment of divorce in the courts of Michigan.” the State of despite in the

The defendant continued business finding contempt. finally several orders her We argu- the matter and at oral agreed to consider admitted she intended frankly ment the defendant it. keep on with I constitutionally enjoined defendant May forms, comple- assisting in the providing divorce Cramer State Bar v 125 1976] Opinion of the Court forms, counseling persons tion these seek- ing Michigan no-fault in on grounds divorce that she engaged was the unauthorized law, 600.916; MSA contrary to MCLA 27A.916?

Plaintiff that whether or not asserts defendant engaged law, was the unauthorized is guilty contempt violating she the injunc- tion of general Circuit Court. It is a Wayne rule that judgments

"all complied orders and of courts must be promptly. person with If a to whom a court directs an order appeal, remedy believes that order is incorrect is to stay, comply

but absent a promptly with the pending appeal. order private Persons who make deter- minations of the obey law and refuse to an order generally contempt risk criminal even if the order is Kansas, ultimately ruled incorrect. v Howat US 181, 277; (1922); 189-190 S Ct 66 L Ed Worden [42 550] Searls, (1887). 814; S 30 L US Ct Ed [7 853] orderly expeditious justice by administration of requires by person the courts 'an order issued a court with jurisdiction subject over the matter and must be obeyed by parties until it by orderly is reversed proper proceedings.’ United States v Mine [United] Workers, 258, 330 US S Ct 91 L Ed [67 (1947).” Meyers, 458-459; Maness v 419 US 95 S Ct (1975). 584; 42 L Ed 2d 574 important respect one violation a court "[I]n generally differently order is treated from the violation of a criminal invalid, statute: require If the statute invalidity acquittal. will the defendant’s If a invalid, court may order is its violation nonetheless be contempt, except treated as juris- where the court lacks or, perhaps, diction to issue the order ant where the defend- opportunity no validity has to contest Kuhns, Limiting Contempt order.” New Roles For the Prosecutor and the Criminal Power: Jury, the Grand Mich L Rev The reasons for this principle were set forth Mich 116 op Opinion the Court in Walker v City Court Supreme the United States 307, 320-321; 87 S Ct Birmingham, of 388 US (1967), upholding convic 1824; 18 L Ed 2d 1210 rights contempt of civil march tions for criminal injunction: of an who were in violation ers "[I]n no man can be justice the fair administration of case, station, however exalted his in his own judge * * * . [RJespect motives however his righteous price pay is a small for the judicial process law, give alone can abid civilizing hand of freedom.” ing meaning to constitutional In order of judgment injunctive January and 5, 1973, from in enjoined engaging defendant was law, in- specific of and the unauthorized listed. conduct were prohibited stances defendant continued to There is no doubt order, and, indeed is still January violate the adjudged "guilty defendant doing Judge so. O’Hair 23, 1973, April on and ordered contempt” of civil purged "by her until she herself demonstrat- jailed discharge statutory her and ing that she will to cease from judicially imposed duty permanently engaging proscribed by in the conduct the court’s 5, judgment injunctive January order 1973”. 30, 1973, April May

Defendant and on jailed was 1, and made appeared Judge before O’Hair representations purge certain herself of con- tempt, and was released. 6, 1973, August Judge found that

On O’Hair purgation contempt defendant "has violated her given her in connection promise and has broken Court on purgation contempt with said to this 1, from May promised 1973 wherein she to abstain activities”, her proscribed again adjudged jail in contempt days in and sentenced her to five and assessed a fine and costs. Bar Cramer the Court 1973, Judge again O’Hair ad- 19,

On December contempt and sentenced defendant guilty judged jail. her five days 1974, found: 15, Judge O’Hair "De- On October * * * 14, February

fendant’s conduct has violation of the through June been order of injunctive January court’s judgment 5, has been will- contemptuous 1973. The conduct ful, in absolute defiance of the flagrant, Court.” Defendant was ad- Wayne Circuit County * * * contempt as a result judged "guilty of civil * * * punishment her willful conduct [and] * * * Wayne County is to Jail be sentenced and, thereto, period for a of 30 in addition is days, fined $250.” disagreement

There is over the nature these i.e., defendant contempt proceedings, whether was guilty contempt. found of civil or criminal "Essentially, the difference between civil and crimi- contempt change respon- nal is that the former seeks to by threatening penalty him if dent’s conduct with he it, him change punish does not while latter seeks past misdoings dignity for which affront of the misconduct, contempt being past court. Criminal for way purge there is no one for so convicted himself Jaikins, 115, contempt.” App 12 Jaikins v (1968). 162 NW2d 325 finding is no that 1973 April There doubt contempt. was that defendant was of civil guilty Judge specifically told the defendant O’Hair until She jailed purged she would be she herself. ’keys was able to "carry therefore [the] prison pocket’ own the action [her] [and] Goodman, App 17 Mich essentially People civil”. v (1969). fact, 175, 177; 169 NW2d 120 In the follow- Judge prom- O’Hair released her after she ing day Mich 116 399 Opinion of the Court finding. The We affirm order. obey ised his however, December on other convictions 15, 1974, the characterizations despite and October for criminal contempt. judge, the trial were punish defendant and fines were jail sentences past conduct. punish the offender for [contempt "If is to citation] behavior, then it is his disobedience or contumacious criminal however, If, purpose is to com- contempt. court, then it is civil pel obedience to an order Judge, Circuit 35 Mich contempt.” Spalter Wayne v 156, 160-161; App NW2d Johns, 325, 333; 384 Mich People As we said (1971): NW2d hearing by a show cause "When the was instituted docket, proceed- placed on the civil when order ings a criminal trial and when any lacked semblance of civil and criminal the contempt had elements of both sentence reasonably expected could have the defendant contempt. being held in civil that he indeed was procedure therefore hold that under the followed "We here, guilty could not have been found defendant contempt and his sentence for such must be criminal vacated.” these sentences Judge O’Hair did not make defendant she would "conditional”. He did not tell contempt herself of the as he did purge be able to This sentence was during April proceeding. punishment commit- already "one of for behavior decree, contempt of the and the ted in violation action, result, crimi- being unconditional as to is Goodman, supra, People at 178. nal”. criminal con-

Accordingly, we hold defendant’s resulting and sentences must be tempt convictions vacated. State Bar v Cramer Opinion of the Court

II Does defendant’s conduct constitute the unau- practice thorized of law? provides: 600.916;

MCLA 27A.916 MSA law, person practice "It is any unlawful or to business, engage in any the law or in manner whatso- ever to lead practice that he is others to believe authorized to business, engage in the law or to law or in any represent designate manner whatsoever to or himself as counselor, law, attorney attorney an unless and lawyer, at person doing regularly so licensed and practice authorized Any person law in this state. who provisions violates the tempt guilty of this section is of con- supreme court and the circuit court of occurred, the county in which the violation upon punishable provided by conviction is tion does not authorized rarily law. This sec- apply person duly to a who is licensed and practice tempo- law in another state while engaged particular this state and in a matter.”

Plaintiff contends that defendant has been in violation of this statute since 1972 as a result of selling legal providing forms and advice and coun- necessary obtaining sel a divorce. responds

Defendant that all have a represent constitutional themselves in Michigan doing courts, and that all she is is assist- ing exercising right. them She also con- tends that the unauthorized statute is unconstitutionally vague, that her actions do not constitute the of law and that the statute injunctive deprive order her of her first rights. Michigan Curiae, amendment cal Law agree Amici Clini- Michigan Legal Program Services, argue contentions, with defendant’s and also infringes overbroad, the statute is on the privacy, equal protection and denies of the law. 399 op the Court particular perspective prob-

To obtain on the presented helpful by case, lems it is to recall development "prac- in outline the historical tice of law”. lawyers personal

"The first were friends of the liti- gant, brought might into court him so that he 'take pleading. "counsel” with them’ before 1 Pollack & (2d Maitland, Similarly, 1909) History English p Law ed 211. 'attorneys’ personal agents, the first were lacking often pointed by any professional training, ap- who were litigants

those royal per- who had secured mission tive, carry through on representa- their affairs Id., rather at 212-213.” Faretta v personally. than California, 16; 422 US fn 95 S Ct 45 L Ed 2d England, "practice began

In of law” to de- velop Henry in 1178 when II created a central appointed justices court and five clerks to serve as litigation. By 1292, Edward I was forced to limit practitioners increasing the number of due to the persons practicing number of unskilled around the courts, king’s Thus, the Court of Common Pleas power appoint attorneys was vested with the persons. and limit the of law to such protect arose, therefore, The bar from a need to persons practicing from unskilled law. stages develop- Pound traces four in the colonial (1) legal profession: attempt ment of the (2) lawyers; irresponsible function without fill- (3) ing officials; out of writs court the era of practitioners permanent judicial orga- admitted (4) lawyers nizations; and the era of trained development organized Pound, bar. R Lawyer Antiquity (West, Prom To Modern Times 1953) 135-163, pp Bar v Cramer Opinion op the Court organized bar development spo- of the was until In 1933 early

radic the 1900’s. the American appointed Bar Association a Committee on Unau- Practice, thorized prohibit "Coexistent with the drive unauthorized law,

practice began of professional there a revival of the Emphasis of practice nature the of law. was increas- ingly placed upon responsibilities the pro- of the fession to the justice spirit administration of in a of public earning service with the of a livelihood deemed 'incidental.’ Justice Cardozo observed: received '[One is] into that fellowship ancient for something [the bar] gain. more than private lawyer an officer [The becomes] court, and, itself, of the like the court an instrument or agency to justice.’ advance the concept ends of As the of public legal profession, service returned to the the 1292, courts begun resumed the role in assuming the responsibility qualifications of determining impos- ing discipline upon profession those members of the spirit who violated public of service as embodied in the public Canons Ethics. As para- service became profession, mount efforts to combat the unautho- practice law, rized bar, both within and without the imperative. became In Tilden, the words of Samuel speaking a group night which that became the Association of the Bar of City New York in an effort to correct appalling prevailed conditions which throughout legal system, Bar, if it is to '[T]he continue to exist —if it dig- would restore itself to the nity and possessed honor which it once be bold —must defense, and, be, if need aggression,’ bold in In attempting cope continuing problem with the of the law, sought unauthorized the bar to inform dangers condoning inherent such practice and to develop coercive remedies to alleviate Comment, problem.” Unauthorized Practice of Law —The Full Bank Service That Was: Bank Cashier En- joined Preparing From Mortgages Real Estate to Secure Loans, (1972). (Footnotes 300, 61 Ky Bank L J 303-304 omitted.) 399 Court states, regulates prac- other Michigan, all tice law statute. prohibit not I, did 314, ch

1915 PA §61 law”, prohib- but rather "unauthorized "representing] person ited licensed any * * * ”. attorney law himself as an at prior statute PA amended § any person unlawful adding that shall be "[i]t attorney and coun- not a licensed regularly who is * ** law or practice this selor of State * * * ”. engage in law business 51, of statute was 1931 PA violation Prior to pun- 51 made violation 1931 PA a misdemeanor. of court. contempt ishable as recognizes this inherent This scheme statutory participants to control of the courts authority E.g., Ayres Hadaway of the state. courts (1942). Mich 6 NW2d Michigan provides statute also "[n]o practice law in this state is authorized to person requirements with complies unless he MCLA regard thereto”. court with supreme 600.901; MSA 27A.901. educational, charac- requirements include

These fitness, components. examination ter 600.937, 600.940; 27A.934, 600.934, MSA MCLA 27A.937, Additionally, attorneys licensed 27A.940. license, loss discipline, including of subject are 600.904; conduct. MCLA MSA for unprofessional 27A.904. are practice not licensed to law all those

While so, has not doing Legislature prohibited of "practice define what constitutes seen fit to and, task of law”, formidable accordingly, "[t]he law has constructing practice a definition Comment, Lay judiciary”. been left largely Bar v Cramer Opinion of the Court Divorce Firms the Unauthorized Practice of Law, (1973). 6 J L Reform

We still of the mind that any attempt a lasting, all-encompassing formulate definition "practice of law” is doomed to failure "for reason jurisprudence that under our system such necessarily change must with the everchanging and social order”. Grand business Rapids Denkema, Bar Association v 64; 287 NW 377

No essential definition of the of law has been articulated and the descriptive definitions agreed have been upon from time to time permitted have only disposition specific ques- tions. These been relatively help- definitions have ful in counseling provided conduct but have no guide sure public’s for the protection.

A "practice broad definition of the of law” em- braces all virtually commercial areas of human This, course, endeavor. will not do. reason, urged, "It lawyer cannot with must

preside every over transaction where written forms must be agent selected and used an one parties. the Such a restriction paralyze would so busi- ness activities very few transactions could ex- be peditiously consummated.” State ex rel Indiana State Bar Association, Association v Indiana Real Estate 244 214, (1963). 221-222; Ind 191 NE2d 711

The result of this inability fashion a definition "practice every law” to fit situation "has been a line of decisions consistent in only their incon sistency as the sought courts have to accommodate public the need for protection through restricting practice the law to members of the with the bar practical economic and realities of modern socie Comment, Unauthorized Practice of Law — The ty”. 116 134 399 op the Court Bank Cashier That Was: En- Full Service Bank Mortgages Estate Real From joined Preparing (1972). 300, Loans, L J 311 Secure Bank Ky 61 practice, from law what- "Laymen excluded be, solely protect the practice may ever law Escrows, Inc, Security v public.” Oregon State Bar (1962). 334, 80, 87; 338 233 Or 377 P2d protection It is purpose this we on put the term must dictate the construction of law”. practice "unauthorized prac- unauthorized There no doubt rights. It tice statute affects constitutional cer- rights first amendment of defend- tainly affects the ant; privacy inherent right it affects the Wade, Roe 113, 410 v US relationship. marital (1973); Ed 2d 705; L 152-153; 93 S Ct Connecticut, 371; 780; 91 S Boddie v 401 US Ct (1971). litigants’ L Ed 2d 113 It affects 1, art 13. self-representation. Const § course, fact that the statute affects consti- Of However, it make invalid. rights tutional does not impinge on constitutional where a statute does "narrowly express must drawn to rights, only Roe v legitimate at stake”. state interests Wade, 705; 155; 93 S Ct 35 L Ed 2d 410 US (1973).

"The to control power states abrogate as to feder- of law cannot be exercised so v Avery, Johnson 393 US rights.” ally protected (1969). 747; 483, 490, 11; fn 89 S 21 L Ed 2d 718 Ct can- of law state regulating "[I]n ignore rights of individuals secured Railroad Trainmen Brotherhood of constitution.” Bar, 1, 6; 84 Virginia Virginia ex rel 377 US L 2d With these S Ed Ct mind, the unautho- we must consider principles Bar Cramer op the Court light in of the divorce rized statute laws of Michigan activities. defendant’s 1, 1972, this adopted

Effective state January 552.6; no-fault MSA divorce law. MCLA 25.86. We agree suggestion with one revision in the divorce law in the belief that was made "when the terminated, marriage relationship granting has the divorce should flow as an inalienable right”. Honigman, What ’’No-Fault” Means to Di- (1972). vorce, 51 Mich St B J Because procedures Michigan divorce are now limited to on pleading statutory grounds response and a assertions, either admitting denying divorce procedures simplified have been considerably. Downs, Law, Family 1972 Ann Survey Michigan Law, 19 Wayne Rev Law question apparent becomes whether relative ease with can which divorce be obtained should enable untrained law purport provide professional individualized counsel guidance seeking to one a divorce. Michigan

There are no cases which have ad- However, dressed this issue. we are mindful of the opinion jurisdictions which have considered questions presented similar to those now practices have held such unauthorized practice of law. In The Florida Bar v Stupica, 300 (Fla, 1974), 2d So the mere furnishing "divorce kits” general public was held constitute unauthorized of law. Con- tained in these kits were forms which included petition dissolution, answer, summons, for sworn service, motions, statement of constructive default joint stipulations for motion hearing, final setting orders final hearing, final judgment dissolution marriage. Accompanying these forms pages were several of explanatory concerning data 116 399 Court of the specific information and ad- the well as forms as application regarding of the forms vice the use governing comply the disso- the laws so to with marriage. information was viewed as This lution providing without benefit of advice direct interpretive statutory legal training annota- possibility minimize the tions would which seeking person assistance on the interests represented. properly not divorce matters were Legal See, also, v American & The Florida Bar 1973). (Fla, Forms, Inc, 274 2d 225 So Business legal representation quality for the Concern seeking a divorce was also available to expressed Oregon Gilchrist, v in State Bar Or The 563; 538 Court did not P2d do-it-your- sale of consider the advertisement and necessary containing the forms self divorce kits together explanatory manual as constitut- with an ing However, of law. the unauthorized distinguished specifically this course of con- Court personal between defendants duct from contact in "customers” the nature of "consulta- and their explanation, tion, recommendation or advice or selecting particular forms, in in other assistance filling suggesting any part form, or or out solving advising how the forms should be used particular problems”. marital customer’s relationship enjoined latter because which was parties developed between the was tantamount attorney that of and client. significant this to distinc-

We also believe be and distribution tion. The advertisement general of forms and documents utilized together any related textual obtain a divorce with of law. instructions does constitute challenge no There to this can be serious raised compliance any enterprise otherwise in State Bar v Cramer Opinion of the Court with regulations those applicable products placed commerce. Were the stream of defendant to limit providing her forms activity and in- divorce, structions regarding her undertaking would in New York analogous forth set County Lawyers Ass’n Dacey, NY2d (1967), NE2d 459 involving publication a case How to Avoid Pro- book, distribution bate. The Court adopted dissenting opinion below which stated: personal "There no or relationship contact [was] with particular

a individual. Nor does there exist that rela- tion of necessary confidence and trust so to the status of attorney legal and client. is the prac- This essential of representation tice —the advising particu- and the of a person lar in particular a situation.

[*] ^{[*] [*]} "At general most the book assumes to offer advice on problems, purport common and does give per- to specific problem peculiar sonal advice a desig- on to a readily person.” nated App 161, identified Div 2d 171, 174; 283 NYS2d 984

But goes defendant well beyond merely making available those materials to necessary effect a legal She "professional divorce. advertises guid- ance” to her A personal "clients”.1 conference is arranged between defendant and her client to discuss the complaint divorce. The and summons are prepared by defendant. completed, Once all documents incident to the proceedings divorce are prepared signature. client’s or the court’s .for occasionally Defendant files the completed forms And, cases, in court. in most personally she advises her to the proper provide. clients as testimony to 1Though objects "client”, defendant use word specifically dealing persons to advertisements clients. refer those with as her Williams, Opinion by divorce matters in are involved interests on offering advice le- Those considerable. contract custody, child gal regarding matters inheritance, separate property, property rights, significant, the more must support, name and judgment competency possess a measure Because defendant insure proper representation. professional guidance the form offers counsel themselves to extricate a persons seeking represented, as well relationship, party has a be assured general, represented properly these interests extent defendant To the members of the bar. dissolution peculiar advice provides personal in the "unau- specific marriage, engaged she is contrary to MCLA law” thorized 600.916; MSA 27A.916. April contempt of civil finding

We affirm the 23, contempt convictions of 1973 and reverse 15, October 1974. The December 1973 and January injunctive order entered trial is affirmed. court costs, public question.

No JJ., Lindemer, Coleman, Fitzgerald, con- curred. concur). (to the J. While concur with

Williams, I pro- the of skilled agree necessity Court and with matters, in neither legal fessional assistance the Chief Justice has adverted directly Court nor this problem to the root behind case.

Virginia prob- is only symptom Cramer legal profession the failure of the lem created services legal to see that sufficient skilled all available and within means reasonably If exist. A vacuum has been allowed to people. Bar v Cramer Opinion by Williams, it, fill sought to some one Virginia had not Cramer so. her would done like have Opportu- of Economic the Office Recently when who by many obtainable nity legal made services services available legal until not had up then had them, found to be one of the work was to divorce Legal Aid and need. De- greatest areas of Detroit, example, for opens fender Association for year three times a about a its doors to divorces two, enough divorce cases in day and obtains time a caseload 180-200 period supply that introduced, was system Before that per attorney. day. cases a they get used to new the very poor It is said that rich and very generally have but it is admitted lawyers, access adequate do not have groups that middle-income Bar Association legal services. The American Michigan displayed State Bar have commenda- in the last few problem ble concern about example, Michigan For State Bar has years. prepaid good leadership in given developing However, programs. yet it cannot be said service made more than an legal profession has acceptable beginning coming grips in with the groups or in ade- legal problems of middle-income serving poor. the needs quately counseling the need for and advice so With overwhelming, going to have to make lawyers are ingenuity and exercise more greater efforts need, because, Virginia every satisfying brought number more Cramer book a place. rise her The courts must continue will protect public against means to use traditional practice of the law. But the fact of unprofessional prison is that neither court orders nor the matter problem in this adequately cells will solve the root case. J. C. Kavanagh, boldly proclaimed problem is

The answer to the Michigan in the Bar all to building who can read Lansing. emblazoned is the fol- There in lowing: long lawyers can survive which organization "No protection primary object

has not for its public.” protection will not matter,

In this prompt, posi- same, but achieved more of imaginative vigorous tive, action to make professional available those who services skilled have reasonable need

of them. Verbum sat sa- pienti. except para- concurred,

Levin, J., for the first graph, J. with Williams, (concurring part in and dissent- C.

Kavanagh, per opinion ing part). I in the curiam concur it vacates defendant’s convictions the extent judgment contempt and affirms the for criminal contempt. agree I is not also that defendant civil engaged practice when agree

in the unauthorized law selling legal I do forms or "divorce kits”. per opinion, however, curiam

with assisting prohibits defendant from extent preparation in the of these forms or individuals rendering peculiar other advice dissolution specific marriage. prohibition That is unsound of a counterproductive. Defendant’s customers will prepared they present. go less than are at to court allowing policy for There are sound reasons assisting to continue her business of defendant helping them desire her services those who non-contested, no-fault divorce. obtain the conviction that one of the reasons I share Bar v Cramer Opinion by C. J. Kavanagh, Michigan’s of the no-fault enactment divorce stat- recognition ute was the that slow, "the iating only whole proceeding was not humil- divorce ignored and often the basic costly, but issue of marriage whether point had broken down to the gone. where all In hope reconciliation was addition to noticing in the old law which these defects could be law, proponents ameliorated a no-fault divorce right parties marriage reform to a stressed beyond repair to obtain their freedom as quickly and Lee, efficiently possible.” Law Divorce Reform In (1972). Michigan, 409, 5 J L Reform attorney There is no doubt that the cost of an prevents people obtaining some a I divorce. many people am convinced that who seek divorces they afford, cannot afford, or think cannot lawyer. They separate services of a from their spouses obtaining without a divorce and later en- relationships ter into frequently quences. solemnized, cannot serious

with economic and other conse- problem point It is no answer legal publicly pro- existence of funded services grams lawyer. for those unable to afford Those programs simply are unable to handle the num- persons seeking any bers divorces reasonable period many of time. There are also who would qualify legal for the services of these aid agencies, but still are who unable afford the attorney services of an to obtain a divorce. "Legal tremendously aid services are overburdened away must turn thousands of divorce clients each professional year to meet obligations their to the clients * * * they represent. Furthermore, do existing legal cases, reasoning services are reluctant take divorce that divorce is not privilege, but a 399 Kavanagh, Opinion by C. J. Note, Justice pressing.” legal problems more other Right To For A At The Counsel For The Poor? Look Indigents Litigation, L Rev In Divorce NYLS Supreme observed As the United States Court 376-377; Connecticut, 91 S 401 US Boddie v (1971): Ct 28 L Ed 2d 113 consenting instance where two know no "[W]e mutually themselves may adults divorce liberate obligations go with from the constraints fundamentally prohibition marriage, and more invoking judi- against remarriage, the State’s without machinery. cial judicial process by plaintiffs these is no

"Resort voluntary in sense than that of a more a realistic upon his in court. defendant called to defend interests groups paramount not process only For both dispute-settlement is but, fact, technique, only in available one.” instances, being choice many

In if the is between attorney to hire an a divorce required obtain possible not obtain- only forum —a court —and all, at ing illusory. the divorce the "choice” is defendant those provided by information enables proc- another choice —that assistance own It is from the essing apparent their divorces. people utilizing her that such a number services need exists. a divorce who can afford seeking

Persons perform hire one. Lawyers will continue to lawyer and beyond merely filling services out important Lawyers filing necessary papers. experienced develop expertise regarding work an in divorce settlements, alimony child property custody Cramer Bar v awards; will continue expertise be pur- it. chased those afford who can 483; In 393 US S Johnson A Ct very, (1969), L Ed United States 2d Supreme regulation forbidding Court struck down a inmates preparation in the assisting other inmates legal writs or other matters. The observations Mr. Douglas, concurring, apropos Justice are the case at bar: enough lawyers manage

"There or super- affairs; vise all of these and much of the basic work requires special done legal no Yet talent. there is a closed-shop legal profession philosophy in that cuts ** * down drastically laymen. active roles closed-shop "That utterly traditional attitude out of place pile in the high modern world where claims much quires tracing pursuing of the work of them re- patience layman and wisdom of a rather than the skills of a member of bar. "Laymen prison and out of be allowed to —in —should any person preparation act as 'next in the friend’ any claim, paper long or document or so as he does not practicing hold out being himself law or as a mem- 491-492, ber of the Bar.” 393 US at 498.

I injunction. would vacate the J., concurred with C. J. Levin, Kavanagh, Four J. categories provided service are Levin, by Virginia Cramer1 her to clients:2 proceedings commenced, partner When these were Cramer was ship persons. partnership partners with other and were persevered litigation. defendants. Cramer alone has with this In this opinion partnership partners the activities of the to and are referred as "Cramer”. activities of customary engage While it is to refer to those who the services "clients”, lawyers the term has a as wider use. Opinion by forms; Furnishing legal A. forms, assisting filing and Preparing

B. them; serving and whether, because Exercising

C. a judgment custody, support, child there are issues child settlement, the client should property or alimony a lawyer; assistance of be to seek the counseled and self-represen- regarding Counseling

D. the client to expect present and how tation in court —what to necessary proofs. ("di- furnishing forms agree We all kits”) of law. does not vorce constitute provided the other services disagree regarding We by Cramer. permanent injunction,

The Court affirms barring the circuit Cramer judge, entered advice, per- and providing counseling services divorce. seeking sons to obtain a I Justice’s signed opinion have Chief services expresses providing our view that these enjoined. should not be my

I separately emphasize views write papers filing of standardized —preparation no-fault where an uncontested divorce obtain custody, support, there are no issues of child child require settlement does not alimony property there- judgment lawyer, professional law;3 not constitute the fore does be it is where the line should —while unclear advocate lay between those cases where a drawn readily assist who wish to exercise may self-representation their constitutional encouraged client should be cases where indicated, limited as not mean Cramer her activities I do While qualifying my full Justice’s concurrence in the Chief understood opinion. Bar Cramer Levin, Opinion by J. lawyer, obtain the services of a it has not been demonstrated that once the relevant criteria are case-by- established, determined and the standard application requires oversight by case a member of legal profession; organized bar, —the which has not made availa- counseling ble the minimal which would enable a person right self-representation, to exercise his of say cannot be heard to this service which it provide does not law; is the Legislature —the should address the issue of securing people their constitutional self-representation part larger problem providing legal services for of moderate circumstances.

I A Many provided by of the forms Cramer are widely complaint, available. default, affidavit judgment of default and default of divorce were printed Honigman modeled on the forms & Michigan Hawkins, Court Annotated, Rules provided Forms. Other forms are available from the clerk of the court or the friend of the court. prepared supervision The entire kit was under the lawyers. Legal variety purposes, forms, for a have for many years been sold or made available without charge by legal newspapers, stationers, abstract companies, and title boards, banks, real estate companies. insurance

There is far less risk of harm to the resulting from misuse of a "divorce kit” than from conveyance, misuse form deeds of land con- leases, property in- tracts, or business residential or ter vivos trusts wills. filed, a improperly is complaint

If divorce for notice the defect and an to judge opportunity has complaint a new filed. or can either be remedied forms, in other When an error is discovered public, it is often to indiscriminately available too late to the mistake. correct

B form elicit uses an initial interview Cramer ade to an ing prepare the information required She se quate complaint.4 and accurate factually prepared and are appropriate they lects the forms for signature. the client’s interview, later, a week the client

At the second to signs complaint, and is told how and verifies the given opportu is file serve the and an papers, and Cramer performed by to have these nity services for fee.5 a nominal to monitors the court dockets determine

Cramer and, expi- papers following filed when service, 20 the client to days ration of after advises sign a third to affidavit of appear for interview an default. has defining "practice

The task of of law” to the Court.6 is left to been confided "[I]t 4 parties; in the and addresses of duration of residence Names date, Michigan; place marriage; prior county and solemnizer of and number, wife; children; birthdates date name of separation names and reason; any jointly property. held list of $10, pay process most to to The fee was of which was used servers filing perform serving. the tasks of law, any person practice engage in the unlawful for to or to "It is business, any law or in manner whatsoever to others to believe lead business, practice engage that or in attorney is authorized law or to in the law he any represent designate as an manner whatsoever to or himself counselor, law, attorney person lawyer, at unless doing regularly in this so licensed and authorized to law 600.916; MSA 27A.916. state.” MCLA Cramer State Bar v courts of this State as well those most other ”

States, Ingham 'practice define the law.’ County Co, Bar Walter Association v Neller 214, 221; NW2d

It has authoritatively been stated that "[func- tionally, law relates the rendi- tion of for profes- services for others that call sional judgment lawyer. of a The essence of the professional judgment lawyer is his edu- cated ability general body to relate the and philos- ophy of law a specific legal problem of a client”.7

Under practice, the former when it was neces- sary divorce, grounds professional state judgment required in generally was prepara- the tion of a complaint for divorce. Under no fault there is one only ground, "breakdown of the mar- riage relationship to the extent objects that the matrimony destroyed have been and there remains no reasonable likelihood marriage that can be preserved”. The provides statute the com- plaint "shall make no other explanation grounds for divorce than by use of the statu- tory language”.8

Acts which once constituted the of law now no longer require professional skill or judg- ment. The "reason” is "extremely difficult to formulate an accurate definition of the 'practice law’ which might endure” is "that under our system jurisprudence such must neces- change with sarily the everchanging and business Rapids Grand social order”. Bar Association v Denkema, 56, 290 Mich 287 NW Special Standards, ABA on Committee Evaluation of Ethical Code (1969), Responsibility of Professional Ethical 3-5 Consideration accom panying Disciplinary Law). (Aiding 3-101 Rule Unauthorized Practice 552.6; MCLA MSA 25.86. edition of The Attor- the revised preface The to states: ney’s Desk Book9 client, on behalf of a a deed attorney

"An can record non-legal same non-legal personnel. but so can client routine facts with personnel secure from can form, freeing thus the assistance of an interview must done attorney necessary legal work which for addition, and, lesser financial him with alone at rendered no finan- for services burden the client attorney.” loss to cial the routine activ- suggest

It is stultifying interviews, preparing filing and conducting ities of associated documents stylized complaint and require professional divorce a no-fault lawyer, ability "his educated of a judgment philosophy law” general body relate these tasks. filing monitoring

Interviewing, preparing, by "non-legal law performed many offices are lawy supervision by a actual personnel” without to matters eyes cannot shut our "[W]e er.10 When we general cognizance. public notoriety we with take our on bench struck seats what judges and forbidden know blindness Nunan, Ho Ah Kow v 12 F Cas see as men.” we (No 6546) (CCD Cal, 252, 255 1879). 9 auspices Commit of the Professional Economics Issued under Michigan Bar of and the of Commissioners Institute of the State

tee Board (Ann Arbor, Mich, Continuing Education, Legal ed rev 1970). 10 483, 490, 747; Avery, 393 89 S Ct 21 L Ed In Johnson v US fn (1969), Supreme observed that 2d 718 the United States Court "though historically petitions post-conviction may preparation relief traditionally from the services of a trained and and dedicated one benefit often, per lawyer, perhaps generally, is a function contemplates by laymen. apparently 2242 that Title USC § formed corpus petitions many relief will be situations for federal habeas by prepared laymen”. Bar v Cramer by

c judgment The initial whether services of a lawyer may laymen. Implicit generally required is made on

in the limitations solicitation by lawyers,11 layman, client, that is a makes a consulting judgment lay- after another —sometimes lawyer may man —whether may a services required, lawyer not be a before has an opportunity judgment. to make a professions,

In the borderline areas between the laymen is accountants, brokers, real estate — agents, judg- insurance a trust officers—who make agreements ment, sometimes under worked out professional prac- associations,12 of where the discipline tice of one ends and the of law begins lawyer. and of whether to call a illogical impractical require poten-

It is lay tial clients to eschew assistance and to obtain lawyer question the advice of a when a arises lawyer’s sought. a whether advice should be appear any It does not of Cramer’s clients believing have been misled into is she lawyer providing lawyer or is the services which a might provide. immediately contains,

The interview form above signature, warning13 the client’s that Cramer is holding "qualified out herself as to render News 177 Unauthorized Practice News 223 39 Unauthorized Practice News 225 need licensed and 27 Title Insurance are interested in bility "FOR EXAMPLE: DR See "IMPORTANT: expert Between 2-103, Realtor-Lawyer lawyer (1975); Guiding Principles Respecting counseling, 2-104. Lawyers or an qualified obtaining This attorney Companies Principles and Banks in plan to render advice and service to a divorce in the advice and at law. not intended as Adopted, Adopt (1975); Planning service, you Statement of courts 39 Unauthorized Practice District of Columbia Bar holding Division of Michigan. should consult a Settling Principles, ourselves out Responsi Estates, If who you Levin, by Opinion J. interested obtain- advice and service” ing counseling, legal "expert if that divorce and attorney at an law is needed service” advice and should be consulted, there are issues of as where alimony property support, custody, child child settlement. counseled her Cramer no that

There is evidence specialized requiring the train- clients on matters ing lawyer. judgment professional of a judgment used which she con- form of divorce alimony provision that no is to directed to tained a standard desiring alimony paid. were Clients be Similarly, lawyer.14 engage if a services spouse dispute concern- a client arose between they ing disposition property could resolve, themselves, no further assistance not provided referred to a client was would and the lawyer. pre- papers appears assumption sum, were

pared no unre- there are on the dispute, disputes. fur- was a solved Where there provided the clients not ther services were lawyer. of a Refer- were to obtain the services told lawyers and to the rals to individual were made lawyer referral service. It local bar association’s refer- over 600 cases had been was estimated that lawyers. red to It does Cramer is clear cut.

The line drawn varying upon analysis depend facts on a custody "Child "Visitation support “Child "Alimony “Separate maintenance. rights. personal property "Real & funds and benefits. “Pension Security benefits. "Social coverage and benefits.” "Insurance requested alimony was in error. In one case Cramer State Bar v case-by-case dispute If is an unresolved basis. there will The standard she not assist further. she has developed adopted like the functions much standards disputes

to resolve borderline between the profession legal professions.15 and other Perhaps lawyer of a should services be re- quired erty prop- minor children whenever there are judicial judgment

is to be divided. If were conservatively that the line should drawn more be might it, than Cramer has drawn the Court more properly proscribe hold, so than rather such ser- altogether. large vices are a There number of persons young may with limited resources who upon separation marriage wish, after a of short duration, without children or accumulation of property, to avail of Cramer’s themselves services. alimony possibility desired, If no is it is a remote any professional judgment required. that "Of exceptional may course, cases arise from time to legal problems time where are involved in the presentation ordinary of [cases], but it is [case] exceptional engages and not the one which now Anticipating exceptional our attention. would hardly practicable.”16 be expressed

The concern that Cramer will not recognize potential problems might lawyer a perceive appears, record, on this to chimerical. expect any would if One substantial evidence rights existed that substantive of Cramer clients inability perceive been lost her had because of to employment the need for advise the the State Bar counsel would have such offered 15 12, supra, accompanying See fn text. 16 Beall, Goodman v Ohio St NE assisting laymen The court declared injured the common an dependents or deceased workman or his in the submission compensation workmen’s claim was not the of law but that appeal prac- an after notice disallowance of claim constituted the tice of law. indulge uncritically We should evidence. hypothesis unsupported evidence where record plentiful experience from which evidence there is could have been derived. making subsequent experience

If the a need limitations this record indicates imposed upon public they protect requisite showing. could be protect State Bar desire of the persons obtain services ena- and the desire of self-represen- bling their them exercise Denying services to tation be harmonized. can protect them circumstances of moderate imaginary justified against be objective. cannot where risks achieve lesser measures will D selling Virginia kit, not a divorce but Cramer is idea. an represent litigant right

The himself a any "A in suitor the Constitution: derives right prosecute has or or court of this state proper person suit, in either his own defend his attorney.” 1, § art 13. This an Const 1963, long standing.17 provision is wisely exercising lay persons refrain from Most litigation; right ordinary in without train- this laymen ing lawyer, will be able skill of a few represent adequately. themselves right self-representation If constitutional 2, 6, 24; Const art 12.§ See art § Const Supreme Court held that the Sixth Amend- The States has United ment, ment, applicable by the Amend- to the states Fourteenth made right in a a of self- to a defendant state criminal case secures California, 806; 2525; L representation. S Ct Faretta v 422 US Anderson, (1975). People 247 NW2d See 2d 562 Ed v Cramer Bar Opinion by

is to meaningful, be will lay generally require guidance and assistance.

Cramer, week court date, before scheduled conducts the fourth final interview. The client provided in form entitled "My Day Court”, intended prepare give him in testimony court. necessary There are blanks factual allegations, in to be filled in the client his own handwriting. pro forma statements —the lit- any of a pro confesso divorce —are set forth. The client proposed judgment receives a of divorce to up handed Additional judge. information is also given the location regarding of the court- room, courtroom etiquette attire. This is the final meeting. appear Cramer does not with or represent clients in court. Clients are encouraged to call problems back if arise.

Educating persons in the exercise their consti- tutional of self-representation has not been part of the traditional lawyer. business Most lawyers provided have this service to no one.

While the faculties of the law schools in the main composed of who at lawyers one time were practice admitted to jurisdiction, some a lawyer may this state he unless is an active member of the State Bar. It apparent is the opinion of majority of the one of faculty of state’s better-known teaching law schools that law does not constitute the law —60% full-time faculty not active members of the State Bar.18

The United States Supreme Court has observed that colonists brought appreci- with them an "[t]he ation virtues of the of self-reliance a tradi- and all, figure non-membership reduced The if one counts 55% including adjuncts, professor designated professor, who are assistant associate professor of law. by ** * This prejudice lawyers. distrust of tional where 'distrust of Colonies in the gained strength ”. Court noted institution’ lawyers became an right states confer a of most the constitutions California, 422 US Faretta self-representation. of L45 Ed 2d 562 806, 826-827, S 813; 95 Ct therefore, right self-repre- appears, It of lawyers. from distrust part sentation derives to bar who derogates It from that obtaining knowledge from to exercise desire except of exercise from a regarding the manner lawyer. rewarding work to

Most have more lawyers available to perform than make confining participa- Cramer: provided service by offering and preparation in a tion divorce case monitoring dockets necessary papers, to file the self-represen- counseling regarding client tation.19

legal tial efficient Hopson: "Where there response services, less other means costly delivery has bar’s been failure to meet those growing delivery systems. and unmet demand for have been devised in substan- As noted needs by Johnstone and through particular more " appears in the United States that whenever a 'It to be axiomatic performed by grows particular to mass volume tinue, lawyers or combination tasks task promises proportions and mass demand to con- performance laymen eventually take over these tasks will part doing by In so unauthorized laws. unless deterred lay specialization results from more efficient and standardization this and more it cutting too, aggressive lay advertising part, But and solicitation. lawyers’ lay competition by reluctance to counter results from quality.’ increasing fees or "Examples place taken where has include such areas being legal adequacy mortgages as the review of the 'big by large acquired plant’ institutional lenders and title insurance non-lawyer insurers. Pressures to reduce costs exerted providing legal in insur- units services have resulted dominated work (insurance companies using non-lawyers adjusters) for most ance government using non-lawyer work bid and claims settlement contract reviewers, security social and veteran’s benefits claims ad- investiga- justers, investigators, regulatory agency FHA violation field Brickman, Through tors, Expansion Lawyering Process etc.” State Bar v Cramer 155 Levin, Opinion by J. willing lawyers might provide

Some who disciplinary this service may proceedings fear Others, should do so. aware of the dim they view judges self-representation, of many take will stand Some concerned that they aside. will be may opprobrium regard incur the lawyers who rendering undermining such services dignity profession. reason, Whatever service is from not available members the orga- nized bar.

The United States Court has Supreme held that "unless provides and until the State some reasona ble [e.g., alternative lawyers law students20] assist petitions inmates preparation post-conviction relief, may not validly enforce a regulation issue, such as that here in barring inmates furnishing from such assistance other prisoners”. 483, Avery, 490; Johnson v 393 US 89 747; S Ct 21 L Ed 2d 718 (1969).21 System: Delivery Emergence Legal Paraprofes- New and State of sionalism, L Rev Colum 1179-1180 contrast, states, "By public system sup in several defender plies funds, attorneys, paid trained from are who available to prisoners regarding corpus petitions. consult with their habeas At employs least one State senior students to law interview and advise prisons. voluntary program inmates in state Another State has a whereby the express indicates that periodic members local bar association make visits to prison prisoners concerning to consult with their cases. We judgment concerning plans, no these but their existence techniques provide available alternatives if the prohibit among State elects to mutual assistance inmates.” Johnson v Avery, supra, pp 489-490. Avery, supra, Martinez, Johnson v was extended in Procunier v 420; 1800; (1974), 416 US 94 S Ct L40 Ed 2d 224 where the Court again providing requirement barring non-lawyers held invalid state from deny implementation service where of the restriction would absolutely access to the courts. The restriction set aside barred lawyers using legal para-professionals from students to conduct attorney-client an prisons. interviews The Court held constituted unjustified prisoner’s right restriction on the of access to the lawyers prisoners representing courts since it would "deter some pay traveling who could not afford to for their time or that of licensed private investigators”. Bar, Sperry 1322; In v Florida ex rel Florida 373 US 83 S Ct 399 fundamental At stake in Johnson was to the courts for the prisoner access of a have post-convic- claims for presenting his purpose is that of right Here involved tion relief. the have to access of circumstances persons moderate dissolving of a mar- the for purpose courts the riage. held Court has Supreme

The United States indigent person pay an require the state cannot precon- as a filing process fee or of costs a service marriage. dissolution of a obtaining legal dition to marriage involves "inter- The Court declared that that at importance of in our society” ests basic of a fundamental hu- was "the adjustment stake interest characterized relationship.” man The was Court protected right”. The concluded "a the relation- marriage the basic of "given position hierarchy of and the ship in this values society’s of the means for monopolization concomitant state process due legally dissolving relationship, prohibit denying, solely a State from because does to its inability access courts pay, of individu- their mar- judicial who seek dissolution of als Connecticut, 371, 374, riages”. Boddie v US (1971). 376, 383, 379; 780; L 28 Ed 2d 113 S Ct opinion practical Justice Williams’ states the (1963), power upheld the the United States L Ed 2d 428 Court lay practitioners although law the Office to admit under state Patent patent application prosecution of a for others constituted the Wisconsin, In Keller v ex rel State Bar of 374 US of law. Wisconsin 1686; (1963), 102; 10 Ed 2d 1026 Court remanded for 83 S Ct L Sperry light in the of the Wisconsin reconsideration Supreme decision practitioner lay that a before Interstate Com- Court appear before Service Com- Commission could not the Public merce mission, although permitted by adminis- Wisconsin statutes and the Keller, 2d ex Bar of 16 Wis code. State rel State Wisconsin trative (1962). 377; On the Wisconsin 114 NW2d 116 NW2d remand acknowledged give opinion could his that Keller Wisconsin court on capacity appear representative but that he could not in a ICC matters held ex rel Service before state Public Commission. (1963), Keller, 100; 21 Wis 2d State Bar of Wisconsin v NW2d 1643; 377 US 84 S Ct 12 L Ed 2d 734 cert denied Cramer State Bar v Opinion by a large segment unavailability legal services population. choice for many persons lawyer, do not have more to hire a who $400 forego, unduly delayed obtaining, or be divorce, relationship although only extant be- recognized one couple tween is the law. supra, Johnson v Paraphrasing Avery, long as monopolizes the state the means dissolving this relationship, and the in the profession, exercise of provide its does not services to monopoly, who would exercise their access to the through self-representation, courts this Court barring should not enforce a rule laymen from furnishing lawyers assistance which do not provide.

II Legislative of question consideration the would now warranted.

The of purpose the no-fault divorce law is to provide a quick remedy.22 and efficient For poor a person or of one modérate circumstances who cannot representation, obtain legisla- promise tion’s has not been fulfilled.

The public may require supervision interest of the kind of service provided by Cramer lest the by abuses feared the State Bar become real.23 Legislation providing for licensing and regulation lay of advocates would the rendering facilitate to 22Lee, Michigan, 409, Law Divorce Reform in J L5 Reform 416 (1972). 23 rapid growth lay advocacy providing legal The as a means of generally profes in or by service situations to not served the Brickman, supra, Rev, pp is sion It early days described in 71 L Colum 1189-1210. appears prevalent representation this was a means of in the republic. Id, p 1169. Robinson, Appearances by Laymen Representative Capac- See in a Bodies, ity Contemporary Before Administrative 5 Law and Problems (1938). 89 116 399 158 by and provide a necessary service the the against abuse.24 of securing protection means supreme generally appreciate courts have asserted 24I that state practice power the what of law the to constitutes that inheres homa, determine Supreme judiciary, Court of Okla in as stated regard involved were 'forensic’ or whether the acts "without to (Okla, Edwards, Hert, 407, P2d 415 Inc v 504 RJ 'nonforensic’”. 1972). Goodman, 346; People Chicago Bar 366 Ill 8 ex Ass’n rel 728; 49; (1937), 941; 58 S Ct 82 L Ed cert den 302 US ALR 1 NE2d 562; 138; (1937); 777, L Ed In re 58 S Ct reh den 302 US 149; Cuyahoga County, 175 Ohio St of Law Unauthorized Practice 54; Eagle 445; Ops But see 2d ALR3d 23 Ohio 192 NE2d Commission, Indemnity 217 Cal 18 P2d Co v Accident Industrial (1933), Legisla holding prerogative it was within the throughout laymen represent injured workers ture to allow to compensation proceeding. workmen’s power extravagant. judiciary may judicial The claims of These inherent, constitutionally legitimately but does have the assert implied not power non-lawyers pursuing their on vocations bar traditionally finding lawyers. Occupational ative; impingement or done on work sometimes legislative licensing non-lawyers prerog- is a non-lawyers appear Legislature unless the were to authorize court, judicial power. there is on no intrusion 1) (Const 1963, 6, "judicial power” art is vested in the "one § The (id); "general superintending justice” has control court of over to in all courts of this Court (Const 4) 1963, 6, power by general art and the rules § all courts” "establish, practice procedures simplify modify, amend and 5). added.) (Const 6, 1963, (Emphasis art § this state”. manifestly power power who The conferred includes to decide courts; legislation concerning licensing may persons in the judicial subject ultimately courts in the is control. defining long Legislature “practice As as the refrains from term law”, Legislature some states existing legislation, can used in this Court define it. as The and, however, may, Congress amend the statutes done, lay represent have authorize advocates to clients administrative tribunals. before power conferred in Const art 28 to review adminis- § "judicial quasi-judicial” private action is or and affects trative rights regulate practices the business practices administrative judicial power licenses not a source of additional were, procedures in tribunals. then such If only overseeing would this Court include procedures establishing, by rule and and of courts but order, procedures supervision the administrative and township, city, county and state administrative of the countless agencies subject judicial Plainly whose actions are review. that authority energy. beyond our and person provides a Federal Administrative Procedures Act The appear agency represented compelled an before is entitled "or, permitted by agency, by if other counsel and advised qualified 555(b). representative”. important 5 USC Fed- Some of the Bar Cramer 159 Opinion by regulation lay advocacy may of Some view state encouraging legitimizing development; expansion lay of who favor the services as a others making legal of services available to the means organized co-opt poor, may fear bar will regulatory justi- function.25 Both concerns are fied. agencies by qualified lay permit representation advocates. Immi- eral Service, 3.1(d)(3);Drug

gration 8 CFR and Naturalization Enforce- Justice, Administration, 1316.50; Department 21 CFR ment Energy CFR Labor Relations Administration, of Federal Commission, Administration, 205.3; Federal Power 18 10 CFR Administration, 2.58, 1.4; 2.59; Drug 21 CFR Food and National Board, Security 102.38. See also Social 29 CFR 416.1446; Equal Employment Opportunity 20 CFR Commission, (formerly 29 CFR 1601.6. The Tax Court United States Appeals denominated the Board of Tax and not an Article 34) court; ed], p Wright, § III attorneys see Federal Courts admits non- [2d (US pass given by who an examination the court Tax Ct R 2). Health, Department permits Education and Welfare welfare "represented by representative, clients to be an authorized such as counsel, relative, friend, legal sent himself’. 45 CFR of the identical. 1970-1971 spokesman may repre regulations or other or he 205.10(a)(3)(iii). consequence, In Michigan Department substantively of Social Services are AACS, 400.903(1)(a),p R 5643. procedure agencies The rules of a number of state permit or person appear person, "by duly agent either authorized Physical Therapy Registration, counsel”. State Board of 1966 AACS, 338.1122, p 3673; AACS, Nursing, R State Board of 1968 R 338.1241, p 4716; Board, AACS, Electrical Administrative R 338.1082, 5142; Examiners, p Veterinary AACS, State Board of 287.1, p 932; Counselors, AACS, Marriage R Board for R 338.1836, p otherwise”); ("by Michigan Employment counsel or Board, AACS, 421.525, Security Appeal 421.532, pp R 4358-4359. for, in, "[Tjypically, lay nonlawyer-domi- advocate works institution, prison, union, community nated organization having only sporadic performing despite gained such as a a labor or a lawyer. Despite contact with the clearly law, work which constitutes lawyer’s supervision, lay the absence of a advocate has statutory protection acceptance a measure of and societal lay growth agency, accorded the assistant. The of the administrative one, supplied great impetus development lay has advo- cacy; accessibility decision-making processes, especially concern for individuals, rights adjudicating prompted pro- those vide for have to lawyers, feasible lawmakers to lay representation agency. before the administrative States recognition adopted similar measures in of the fact that access lawyering groups requiring legal is essential for services which at a delivery system, provide inefficient due to their cannot price. part process ensuring These laws are themselves of a 399 Levin, Opinion by J. again It in order to consider would also be business of workaday whether uncontested divorce should transferred the court not be to, say, of the court who the friend decisions, subject judicial makes the bulk of the judicial review What is now a and modification. an procedure would then become administrative now, with, judicial de novo procedure review circuit cases judge a in contested where a only disagreement concerning the friend of the court’s cannot be resolved recommendation/decision The parties. major part satisfaction of both processing the work involved in divorce cases is manner;26 being now conducted what is now equal protection widening segments population. for For exam- provide ple, working against employer man with both a claim his injuries job specialized adjudica- for sustained on the and a forum for futility provided tion of his claim is an exercise in unless he is also (advocacy) process. with the needed assistance to invoke the claim summary, legal profession legal "In both the in the case of the specialist, society, advocate, lay in the case of the have made a judgment lay practice that in some instances of law is desirable. contemporary lay practice Much of the discussion of the of law is (the representatives reflected in an oral debate between of the A.B.A. bar) (the bar). private Legal public Symbolizing and O.E.O. Services dialogue 'public private the sector.’ in the practice sector view middle-class) are references to the sector versus the put, sector, bar, Simply private organized is interested lay increasing efficiency legal as a assistant means of thereby, lawyers. public methods and the income of The (and poor on the focuses lack of access of the even of the legal mainly of delivering services and is concerned with development lay those services—a concern for the advocates which secondary importance private dialogue is of sector. The is often private para-legal heated because the sector talk of certification of personnel perceived by public sector adherents as a means of advocates, controlling development lay particularly free-stand- ing lay attorney. expanding operating supervision advocates without the or control of an hand, proponents speak On the other sector delivery services mechanism without much re- gard private sector-imposed strictures, prohibitions against such as Brickman, Rev, supra, the unauthorized law.” L Colum pp 1187-1188. See, also, Statsky, Paralegal Advocacy Agen- Before Administrative Format, Training A 4 Toledo L cies: Rev (Domestic Wayne County, rules of circuit See Rule 10 courts — Bar v Cramer Opinion by facto jure

de de would and be extended become pro confesso phases all uncontested proceedings. divorce pro confesso divorce is misuse of limited time and an embarrassment

judicial judicial process. imposition felt the judiciary is especially galling when untrained seeking represent come into court themselves without adequate preparation.

Jailing Cramer from time to time will not re- lieve the of the obligation imposed circuit courts present law to allocate time to perfunctory provide business nor will with the service that enterprise the success of her demon- strates is needed.27 Actions), reprinted Rules, (West Michigan Relations Court Co), Pub court which but adumbrates the central role of the friend of the process. the decisional expenses, schedules, “The effect of court-related minimum fee and prohibitions stricted solicitation, against advertising, specialization, unre group legal law, services and the unauthorized is legally poor processes adjudication

to bar the from the formal and rulemaking agencies. in our courts and administrative These bastions legal profession’s monopoly of the shown to be delivery system, lay performance increasing techniques, over the of law have been constitutionally infirm. Unless a new services advertising, which minimum lacks fees and includes simple legal variety efficiency- tasks and the bar, developed by price tag justice on though equal protection will continue to be unconscionable. Even process provide successfully and due clauses have failed to basis challenging impediments lawyering to access to the courts and to services, may prove equiva the first amendment to be the functional guarantee. practices lent of a fourteenth amendment The bar’s prevent segments process espoused by Henry population participating of our in the claim jeopardy ought high are in to so remain until the ideals England reality VII’s become in this nation and * * * * * * 'every pouer persone shall have and also [access courts] ” Brickman, attorneyes.’ Passageways lerned Councell Of Arterial Through Legal Right Process: The of Universal Access to Courts Services, Lawyering 48 NYU L Rev

Case Details

Case Name: State Bar v. Cramer

Court Name: Michigan Supreme Court

Date Published: Dec 30, 1976

Citation: 249 N.W.2d 1

Docket Number: 56413, (Calendar No. 11)

Court Abbreviation: Mich.