291 N.W. 68 | Neb. | 1940
On September 21, 1936, application for leave to file information, affidavit and motion for citation for contempt of court was filed in the supreme court of Nebraska by William H. Wright, then attorney general, against the defendant, George E. Hinckle, and others. On the same day leave was granted by the court to file the aforesaid instruments and the same were filed. The prayer of the information was that this court make and enter an order, directing the defendants to appear before this court and make answer, if any there be, on the 26th day of October, 1936, and show cause by such answer why defendants should not be punished for contempt of court for the commission of the offenses set forth in the information. The record does not contain an answer by defendants.
On February 24, 1940, the state of Nebraska filed a motion in this court, supported by an affidavit, praying the court that an attachment or warrant be issued for the apprehension and arrest of defendant George E. Hinckle, and that he be brought before the court, at a time to be fixed by the court, to show cause, if any there be, why he should not be punished for contempt, as prayed in said original information. *737 February 24, 1940, the court ordered the arrest of defendant George E. Hinckle, and that he be brought before the court, to be dealt with according to law. In furtherance of this procedure, the court made a finding that there was danger that defendant Hinckle would depart the jurisdiction of the court before the expiration of the time fixed by the court when he may appear and show cause why he should not be punished for contempt, as prayed in the original information; ordered the arrest of the defendant; fixed the amount of his bail in the sum of $1,000; ordered that in default thereof said defendant be committed to the county jail of Lancaster county; and directed the defendant to appear before this court and make answer, if any there be, on the 11th day of March, 1940, at 9 o'clock a. m., and then and there show cause, if any there be, why he should not be punished for contempt of this court for the commission of the offenses, and every one thereof, set forth in the original information.
On March 12, 1940, at 9 o'clock a. m., the supreme court convened in regular session for the purpose of the further hearing of this cause. Rush C. Clarke, assistant attorney general, appeared for and in behalf of the state; defendant Hinckle did not appear by an attorney, did not file a written answer in this cause and was found to be in default of answer, but was personally present. After being first duly sworn, he voluntarily made a statement to the court, which was reduced to writing, and became a part of the record in this case.
This is an original action for contempt for the illegal practice of law by the defendant, George E. Hinckle, and others. The case proceeded as against defendant Hinckle.
We believe that it would unnecessarily lengthen this opinion to set forth each of the 17 charges separately, and we are content with the statement that each charge is in detail, specific and conclusive as to constitute an offense as claimed. The substance of the charge and charges is that this defendant wilfully, knowingly, contumaciously, unlawfully and intentionally engaged in the practice of law *738
without a license so to do, and pretended to practice law as such attorney, in violation of chapter 7, Compiled Statutes of Nebraska for 1929, section
Defendant Hinckle admits the truth of the original information and the separate counts stated therein by failing to answer and deny the same, after having received due and proper notice.
This court, in Nebraska Children's Home Society v. State,
In defendant Hinckle's voluntary statement to the court, he admitted that for a long period of time he had been engaged in "ambulance chasing," and offered in mitigation thereof the fact that he was required to earn a livelihood and was ignorant of the seriousness of the offense, but he stated that he thought the practice was wrong, and he detailed some of his experiences which are not pertinent to this particular case.
"`Ambulance chasing' is generally used to designate the *739 activities of those laymen who acquaint themselves with the occurrence of accidents and approach the injured persons or their representatives with a view toward soliciting employment for an attorney at law in the conduct of litigation arising from the accident." Annotation, 73 A.L.R. 401.
In the case of Matter of Rothbard,
In State v. Barlow,
The practice of law is not confined to performing services in a proceeding, but also includes preparation of legal instruments. 7 C. J. S. 703. "In a larger sense, it includes legal advice and counsel, and the preparation of legal instruments *740 and contracts by which legal rights are secured, although such matter may or may not be pending in a court. To `practice law' is to carry on the business of an attorney at law; to do or practice that which an attorney or counselor at law is authorized to do and practice; to exercise the calling or profession of the law, usually for the purpose of gaining a livelihood, * * * to make it one's business to act for * * * others in legal formalities, negotiations or proceedings." 7 C.J.S. 703.
"One who confers with clients, advises them as to their legal rights, and then takes the business to an attorney and arranges with him to look after it in court is engaged in the practice of law." State v.Perkins,
"The practice of law in which laymen may not engage is not limited to practice in court proceedings, but comprehends all the activities of a lawyer in advising and assisting others in all matters of law, both in and out of court." Rhode Island Bar Ass'n v. Automobile ServiceAss'n, 100 A. L. R. 226 (
An all-embracing definition of the term "practice of law" would involve great difficulty. In the instant case, the practice of law would include consultation with persons receiving injury and damage by virtue of an automobile accident, apprising them of their rights and of the legal liability of other parties; advising them in procuring the services of certain counsel; arranging for taking a contract for a retainer, fixing the amount thereof, and advising such persons as to the cost to them in bringing and instituting the action, and also as to the amount of recovery. Mere nomenclature is unimportant.
"Where the application of legal knowledge and technique is required, the activity constitutes such practice * * * it is the character of the act and not the place where it is performed which is the decisive factor." Shortz v. Farrell, 327 Pa. St. 81,
The case at bar is the outgrowth of and is connected with previous cases involving attorneys for whom the defendant acted, and by whom he was employed. This court, in the exercise of its powers, disciplined such attorneys and, in passing judgment, treated the matter as an admonition to those engaged in such unethical practices and imposed a nominal punishment. We think this defendant is entitled to the same consideration.
We conclude that the defendant was guilty of the illegal practice of law, within the contemplation of section
The duly licensed, qualified, experienced practitioner, possessing high moral character and integrity, honestly abiding by the canon of ethics of a noble profession, and the public requiring their services are entitled, at the hands of the court, to a judgment that such nefarious practices, carried on by the defendant in this case, be stamped out and ended.
For the reasons given, and in consideration of all of the facts, the defendant, George E. Hinckle, is adjudged to be guilty of contempt of court and sentenced to the county jail of Lancaster county, Nebraska, for a period of 30 days; and time served in said jail since the date of arrest shall be made a part hereof and included in this sentence. The punishment imposed in the instant case is not to be considered as commensurate with the gravity of the offense in future cases of like character.
JUDGMENT ACCORDINGLY.
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