New York County Lawyers' Ass'n v. Dacey

28 A.D.2d 161, 283 N.Y.S.2d 984, 1967 N.Y. App. Div. LEXIS 3230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1967
• Status: Published

Opinions

Eager, J.

The respondents appeal from an order rendered in a proceeding brought by the New York County Lawyers ’ Association pursuant to subdivision B of section 750 of the Judiciary Law to punish the respondents for contempt and for an injunction in the matter of alleged unlawful practice of law activities in the publication, distribution and sale of the book or treatise entitled ‘ ‘ How To Avoid Probate! ’ ’

Special Term concluded that the respondent Dacey, including his doing business as National Estate Planning Council, was guilty of criminal contempt, and adjudged him guilty of such contempt in that he did ‘ ‘ willfully and knowingly, engage in an unauthorized practice of law within the State of New York”. The order of Special Term further provided that Dacey and the respondents Crown Publishers, Inc., Doubleday & Co. Inc. and Brentano’s Inc. (the publishers, distributors and sellers of the book) should be permanently enjoined from “ [practicing or assuming to practice law in the State of New York, directly or indirectly”; from “ [Representing or holding themselves out to the public of the State of New York, as being authorized, qualified or competent to give legal advice or render legal opinions to the public ”; from “ [Rendering opinions, representing, advising or recommending to the public in the State of New York, in any manner or in any media, distributed, disseminated, published or broadcast to, or intended to reach, residents of the State of New York, orally, in writing, or by mechanical, electronic or electro-magnetic devices, reproductions, records or recording devices intended to reproduce voices, writings, pictures, or any combination thereof, directly or indirectly, that any ‘ form ’, writing, instrument, or document, directed, designed, written or printed by the respondents, or any of them, or any other person * * * is legally sufficient, suitable or proper for use for any specific legal purpose, or will create, or abrogate any jural relationship or effect any transfer of property ”; from “ [instructing, advising, or recommending to residents of the State of New York with respect to the manner and method in which any ‘ form ’, writing, instrument or document is to be prepared, completed, executed, witnessed, filed, or recorded, or otherwise treated or dealt with for the purpose of effecting a legally sufficient transfer of specific property or establishing a specific jural relationship”; and from “ [o]ffering for sale, selling, distributing, or disseminating £ forms ’, writings, instruments or documents under such circumstances or in such a manner as would imply to or cause a resident of the State of New York to believe that such ‘ form ’, writing instrument or document was represented to be legally sufficient or proper for use for the purpose of effecting a transfer of specific property, or creating or abolishing a specific jural relationship ’ ’.

Although we agree in the main with the reasoning and conclusions of Special Term as set forth in its well-written opinion, we conclude that the injunctive provisions of its judgment, insofar as they are directed against respondents other than Dacey, are too broad and sweeping in their terms and should be modified.

Dacey is not an attorney admitted to practice law. Nevertheless, on the basis of the undisputed facts, it appears that he planned to and did deliberately engage in activities constituting the practice of law in this State. Prior to his activities in New York, Dacey had written and distributed in the State of Connecticut a 30-page booklet describing and recommending the so-called “Dacey Trust” and “Dacey Will”. He met with those who were interested in his advice and assisted them in executing trust and will forms prepared and supplied by him. On the basis of his conduct in Connecticut, Dacey was enjoined by the court therein from engaging in the drafting and/or preparation of wills, trusts, trust agreements and similar documents and/or advising and counseling any person concerning the same or the effects thereof and the laws applicable thereto. (See Grievance Committee of Bar of Fairfield County v. Dacey, 154 Conn. 129, 222 A. 2d 399, rehearing den. 387 U. S. 938.) Having been enjoined from his unlawful practices in Connecticut, Dacey offered for publication in this State the book and forms entitled “How To Avoid Probate!” Although there are no face-to-face meetings with customers or book purchasers here, this work and Dacey?s activities in connection therewith were intended to and do serve as a large-scale expansion of the Connecticut booklet and operations. Clearly, it was Dacey’s purpose to circumvent the effect of the Connecticut decree by substituting here a multiplicity of forms of legal instruments with particularized instructions as to each form so that they could be used on the basis of his written rather than face-to-face oral legal advice.

Dacey’s present work consists of approximately 55 pages of text and approximately 310 pages of forms with accompanying instructions. The work contains a total of 26 declaration and deed of trust forms, 2 deed forms, 5 revocation of trust forms, 1 form of amendment of deed of trust and 12 will forms, with all of them in duplicate. These forms, as noted in the table of contents, “ are perforated for easy removal from the book ”. A page or more of instructions accompanies each of the forms, advising a purchaser when and how to use them, including advice as to filling in of the blanks and the proper maimer of executing and filing instruments. With each of the forms there is the general statement that it ‘ ‘ will be suitable for use ” to effect a stated jural relationship or result. There is also the general statement in the text of the book, applicable to all of the forms, that: 11 The instructions supplied with each instrument are quite precise. Any sensible person who reads them thoughtfully several times and checks his understanding of them with another person should have no difficulty ’ ’; that “ [a]s to the forms provided in this volume * * * [t]hey are legally correct * * * and, may be employed with complete assurance that they will serve the readers’ purposes well ’ ’.

On the front and back covers of the book Dacey is represented to be “ One of American’s Leading Professional Estate Planners ” and “ America’s best-known professional estate planner.” Prominently emphasized on the back cover is the direction and statement: “ administer your own estate! This book will revolutionize estate administration in America! It tells you how to avoid the delay, expense and publicity of probate of: your home . . . your bank account . . . your stocks and bonds . . . your automobile . . . your close corporation . . . your mutual fund shares . . . your small unincorporated business . . . your personal effects.” On the whole, the book is represented and purports to be a compilation of instructions and legal counsel by Mr. Dacey, a nonlawyer.

The giving of legal advice and counsel, including instructions and advice as to the preparation and use of legal instruments, constitutes the practice of law which is forbidden in this State to all but duly licensed New York attorneys. This is well settled. (See Penal Law, §§ 270, 271, 280, subd. 3; 3 N. Y. Jur., Attorney and Client, § 1; Spivak v. Sachs, 16 N Y 2d 163, 166-167.) “Protection of the members of the lay public of our State, when they seek legal advice — and that is what defendant purported to furnish — is the basis of the requirements of licensing of attorneys by the State, and this protection must be deemed to embrace whatever kind of law or legal rights the layman seeks advice on (see Matter of New York County Lawyers Assn. [Standard Tax & Management Corp.], 181 Misc. 632).” (Matter of New York County Lawyers Assn. [Roel], 3 N Y 2d 224, 231, app. dsmd. 355 U. S. 604.) Appropriate also is the statement in Rosenthal v. Shepard Broadcasting Serv. (299 Mass. 286, 289-290), where the court held that the radio broadcasting of legal advice constituted the unlawful practice of law, and said: ‘ ‘ The giving of advice as to legal matters has been commonly recognized as an important part of the activities reserved for members of the bar and constitutes the practice of law. ’ ’ Here, Dacey prepared and drafted the many forms of legal instruments and documents contained in the book. Holding himself out as a qualified expert, he represented each form as suitable to accomplish a stated jural purpose or to effect a particular jural result, and gave specific advice as to the manner of completing, executing and filing the forms. Unquestionably, he intended that his forms and his advice be adopted and followed by laymen. This constitutes the practice of law. ‘ ‘ [W]hen legal documents are prepared for a layman by a person in the business of preparing such documents, that person is practicing law whether the documents be prepared in conformity with the law of New York or any other law.” (Matter of New York County Lawyers Assn. [Roel], 3 N Y 2d 224, 229, supra.) 1‘ The exercise of judgment in the proper drafting of legal instruments, or even the selecting of the proper form of instrument, necessarily affects important legal rights. The reasonable protection of those rights, as well as the property of those served, requires that the persons providing such services be licensed members of the legal profession.” (Cape May County Bar Assn. v. Ludlam, 45 N. J. 121, 126.)

Where a person, as here, advises that this form or that form is the proper form to be used to carry out a particular legal transaction, then he is doing just what a lawyer does when a client seeks advice. The copying or completion of a form may consist merely of clerical work but the selecting of the proper form and telling a clerk what to copy and how to fill in the blanks is lawyers’ work. It was stated by Pound, J., concurring in People v. Title Guar. & Trust Co. (227 N. Y. 366, 379), in reference to the supplying and preparation of formsI am unable to rest any satisfactory test on the distinction between simple and complex instruments. The most complex are simple to the skilled and the simplest often trouble the inexperienced. Skill is sought when another is employed to do the work. If the blank forms used by the trust companies are prepared or approved by their legal counsel then, when the clerks fill them out, the corporation tacitly advises the client that the forms are proper and sufficient for the purpose and one would expect that he was getting good legal advice, indirectly, if he had papers thus prepared. So the giving of oral advice is not a satisfactory test.”

It is immaterial that Dacey has not face-to-face dealings nor a confidential relationship with particular clients. (See People ex rel. Dunbar v. Schmitt, 126 Col. 546; Shortz v. Yetter, 38 Pa. D. & G. 291.) He prepared and has contracted for the sale of his work with the intent and suggestion that his forms be used and his advice be followed by lay individuals in their property and estate matters. They are told that the forms therein are prepared and designed by “ one of the country’s leading professional estate planners ’ ’ and are informed that the various deeds, trust instruments and will forms with the book may be detached and, if used in accordance with Dacey’s advice, will result in arranging an individual’s affairs legally with a saving of taxes and probate expense. Under these circumstances, the book is bought with the understanding that the purchaser is thereby obtaining legal counsel from an expert who is fully qualified to give the same. Dacey intends that purchasers of the book shall act on the basis of his legal advice, and, in a sense, they are solicited as his clients. And Dacey, the same as a qualified lawyer, receives a consideration for his selection of the suitable form and for his advice as to the proper completion, execution and filing of the instrument. He receives, either directly or indirecty, a portion of the price paid by each purchaser of the book. In furtherance of his intent to profit from his alleged legal expertise, there is included in each book an order form whereby the purchaser may order from Dacey, at a specified price to be paid to him, additional copies of the book and additional sets of the various forms of instruments prepared by him; each of the forms being expressly described and represented in the order form as suitable and fully effective for establishing various types of trusts, for the revocation of trusts and for the conveyancing and the testamentary disposition of property. Furthermore, unless restrained, Dacey could use his present work as a basis for. a supplement service or future editions whereby he could expand the undertaking to establish a profitable counseling service to the public.

It would be senseless to permit a person who is not an attorney to engage in the business of selling and distributing particularized legal advice to the public on a wholesale basis when he would not be permitted to do so on an individual basis. Although Dacey does not hang out a shingle and have clients come to his office, he is actually engaged in the practice of giving legal counsel to all and sundry who are willing to receive the same. Under the circumstances, “we are dealing with the conduct of a person who renders legal services to the public as a business.” (See Matter of New York County Lawyers Assn. [Roel], 3 N Y 2d 224, 231, supra.) “ [T]o prepare as a business legal instruments and contracts by which legal rights are secured and to hold oneself out as entitled to draw and prepare such as a business is a violation of the law.” (People v. Alfani, 227 N. Y. 334, 338.) Certainly, on this basis, Dacey is engaged in the practice of law, or, at the very least, he “ assumes to practice law ” (Judiciary Law, § 750, subd. B).

It would be senseless, too, to hold that the court does not have the power to control the activities of laymen in matters generally requiring the training, experience and ethical responsibility of duly qualified attorneys. The conduct of attorneys in activities concerning the law, such as the activities of Dacey, is subject to the regulation and supervision of the courts and it is nonsensical to suggest that a layman, without the qualifications of an attorney, should be permitted to carry on such activities free of the control of the court. For obvious reasons, attorneys are required to possess certain educational qualifications and training, must pass a Bar examination, are required to be of good character and fitness, and are required to be licensed. Then they are required to maintain standards pre. scribed by the courts and the Bar and are subject to discipline for breach of such standards. “And all of this with but one purpose in view and that to protect the public from ignorance, inexperience and unscrupulousncss.” (People v. Alfani, supra, p. 339.) Although a layman may have sufficient knowledge to give advice in a special branch of the law, learning alone does not properly qualify him to ‘ ‘ set himself up as a public consultant on the law of his specialty.” (See Matter of New York County Lawyers Assn. [Bercu], 273 App. Div. 524, 534, affd. 299 N. Y. 728.)

Dacey concedes “ that a carelessly-drawn instrument can have very harmful results.” One can readily see that inaccurate, incomplete or unsupervised advice in this “do it yourself kit ” as to the proper completion, execution or filing of an instrument may indeed cause “ very harmful results.” In many cases, this book may be the direct cause of unnecessary expense and costly future ligitation in the settling of estates rather than a means whereby a purchaser can “ arrange [his] affairs * * # legally, and at no cost ” as advertised. Yet there is no way for the courts to regulate or control Dacey’s conduct except to restrain his activities.

It is immaterial that Dacey ‘ ‘ renders only specialized services ”, namely, in the matter of the preparation of legal forms and documents and advice as to their use for inter vivos or post mortem disposition of property, and it is likewise immaterial that “he claims to be peculiarly competent ” in the field. “A specialized area of competence does not, however, entitle these laymen to engage in the business of giving legal advice based on their knowledge of the subjects.” (Matter of New York County Lawyers Assn. [Roel], supra, p. 231.)

Although there is no difficulty in concluding that Dacey is engaged in the unlawful practice of law, it does not necessarily follow that the activities of the respondents Crown Publishers, Inc., Doubleday & Co. Inc. and Brentano’s Inc., in relation to the Dacey work, are such as to subject them to the usual form of general restraint in these matters. It is clear, however, that the punishing of Dacey for contempt and the issuance of an injunction solely as against him would be wholly ineffective to put a stop to the unlawful practices if these other respondents were permitted to continue with the distribution and sale of the objectionable material. Certainly, under the circumstances, this court is not powerless to render such decree as may be proper and necessary to stop the unlawful activities instigated and abetted by respondent Dacey.

There is no inherent right to practice law and the State has the power to prescribe the qualifications of and to license those who may practice law and prohibit others from doing so. (See Matter of New York County Lawyers Assn. [Roel], 4 Misc 2d 728, 731, affd. 3 A D 2d 742, affd. 3 N Y 2d 224, app. dsmd. 355 U. S. 604; Sweeney v. Canon, 23 A D 2d 1.) This State has vested the "Supreme Court, including the Appellate Division, with the general jurisdiction to exercise the powers of the State in the matter of the control and regulation of the practice of law. It is expressly provided that “ The supreme court shall have power and control over * * * all persons practicing or assuming to practice law ” (Judiciary Law, § 90, subd. 2). The court is expressly authorized to punish for a criminal contempt ‘ ‘ any person who unlawfully practices or assumes to practice law” (Judiciary Law, § 750, subd. B). Included within the powers conferred upon it is the power to enjoin by its decree the unlawful practice of law activities in the State. (See Matter of New York County Lawyers Assn. [Bercu], supra; Matter of New York County Lawyers Assn. [Roel], 3 A D 2d 742, supra.) It reasonably follows that the court, where necessary for the protection of the public, may restrain any person who participates in or furthers such activities.

We recognize, of course, that the respondents have the right guaranteed by the Federal and State Constitutions to publish, distribute and sell Dacey’s views and opinions with respect to probate procedure, with incidental criticism of the legal profession and its methods. In this connection, it is immaterial whether or not Dacey’s advice or conclusions are sound or valid; and this court may not suppress the dissemination of the same because it disagrees with or dislikes his views. In fact, the petitioning Bar Association concedes that the court may not restrain the publication, distribution and sale of the Dacey text and forms as an undertaking independent of unlawful practice of law activities.

It appears beyond dispute, however, that the respondent book publishers, distributors and sellers are deliberately promoting the exploitation and dissemination of the counsel of a nonlawyer as the sound and proper legal advice of one particularly qualified to render such advice. They have advertised and are exploiting the work as the manual of an expert enabling the purchasing layman to effect transfers of various properties, make gifts, create trusts, and execute wills by following the advice and using the forms set forth in the book. In their advertisements, the purchasing layman is advised that this is a ‘ ‘ ‘ do it yourself kit ’ for legal, proper estate administration ” including forms of necessary instruments prepared by a “ leading professional estate planner ” and that the purchaser of the work “ get[s] detailed instructions for completing each instrument, plus a picture of how it should look when you finish it.” The advertisements stress the fact that Dacey “ believes that any literate, intelligent man or woman who can follow his book’s clearly outlined directions, will surely be capable of handling his or her estate.” By their manner of promoting the sale of Dacey’s work, these respondents are actively engaged in furthering his unlawful activities.

The constitutional rights of the respondents should not operate to 'bar the issuance of a properly limited injunction restraining the unlawful undertaking represented by the particular publication. Legal advice is not a constitutionally protected matter and one illegally peddling such advice may not take refuge in the constitutional guarantees of freedom of expression.

■Concededly, rights of speech and publication are not absolute and, in a given case' where the public interest is involved, we are entitled “ to strike a balance * * * between these fundamental freedoms and the State’s interest in the welfare of its citizens.” (See People v. Fritch, 13 N Y 2d 119, 123.) Where, as here, a proper statute is enacted in the interests of public welfare (Judiciary Law, § 750, subd. B), for, the purpose of curtailing the practice of law by unqualified and unlicensed persons, and there is an overriding need for resort to the powers conferred by the statute upon the court, the respondents’ general rights grounded in the constitutional guarantees of freedom of expression must yield to permit the rendition of such decree as is necessary for the protection of the public. (See 9 N. Y. Jur., Constitutional Law, § 214; Gitlow v. New York, 268 U. S. 652, 666-668; Near v. Minnesota, 283 U. S. 697, 708; Curtis Pub. Co. v. Butts, 388 U. S. 130, 150; Ginzburg v. United States, 383 U. S. 463, 474, 475.)

The judgment of Special Term should be affirmed as to respondents Norman F. Dacey and Norman F. Dacey doing business as National Estate Planning Council, with costs and disbursements to the petitioner. Under the circumstances, however, the terms of the judgment of the court insofar as it is directed against the respondents book publishers, distributors and sellers should be limited to the enjoining of the acts and conduct on their part tending to promote the unlawful practice of law by Dacey in this State. Therefore, the injunctive provisions of said judgment, as affecting the respondents Crown Publishers, Inc., Doubleday &.Co. Inc. and Brentano’s Inc. should be modified to restrain them from the further publication, advertisement, distribution and sale in New York of the present book “How To Avoid Probate!”, and of any modification thereof which purports to induce lay persons to rely upon the legal advice or expertise of Dacey in the selection, use, completion or execution of legal forms, instruments or writings for the purpose of establishing any jural relationship or effecting the transfer or disposition of property; and said judgment should otherwise be affirmed as to said last-named respondents, without costs and without disbursements.