Rosenthal v. Shepard Broadcasting Service, Inc.

12 N.E.2d 819, 299 Mass. 286, 114 A.L.R. 1502, 1938 Mass. LEXIS 787
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 1, 1938
StatusPublished
Cited by17 cases

This text of 12 N.E.2d 819 (Rosenthal v. Shepard Broadcasting Service, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosenthal v. Shepard Broadcasting Service, Inc., 12 N.E.2d 819, 299 Mass. 286, 114 A.L.R. 1502, 1938 Mass. LEXIS 787 (Mass. 1938).

Opinion

Rugg, C.J.

This petition was instituted on November 24, 1936, by three members of the bar of Massachusetts, residents of Boston, against the respondent, a corporation duly organized and having a usual place of business in Boston. The petition was brought pursuant to § 46B, in[287]*287serted in G. L. (Ter. Ed.) c. 221, by St. 1935, c. 346, § 2. The allegations of the petition set forth violations of G. L. (Ter. Ed.) c. 221, § 46, as amended by St. 1935, c. 346, § 1, by the respondent in that it broadcasted to the public radio programs known as the “Court of Common Troubles” and “Goodwill Court.” The purpose of the petition is to restrain the respondent from broadcasting these programs on the ground that they constitute illegal practice of law. The statute (St. 1935, c. 346, § 1) forbids a corporation to “give legal advice in matters not relating to its lawful business, or practice law.” With reference to this statute it was said in Matter of Shoe Manufacturers Protective Association, Inc. 295 Mass. 369, “All practice of law by corporations is now expressly forbidden by statute. . . . In addition to this sweeping prohibition against the practice of law the statute also expressly forbids the doing by corporations of certain specified acts comprised in or related to such practice.” The case was referred to a master whose report has been confirmed and whose findings are not in dispute. The case has been reserved without decision for our determination on the pleadings and the report of the master.

The material facts are these: The respondent maintained and operated a broadcasting station in Boston as a commercial enterprise for its own profit. The respondent sold the use of its broadcasting facilities to individuals or corporations for fixed periods of time during which such persons or corporations, under agreement with the respondent, produced programs for broadcasting. Such a purchaser was called a sponsor. There were other programs, called sustaining programs, which were produced and paid for by the respondent. The programs of the court of common troubles originated in the studio of the respondent in Boston. The goodwill court program originated in New York, was transmitted over a telegraph wire from New York to the respondent’s studio in Boston, and was relayed by the respondent through its Boston station. The same program was also “broadcast over sixty-six different channels” in thirty-nine different States. This program was sponsored [288]*288by a corporation interested in the sale of a particular brand of coffee and was interspersed with remarks advertising that coffee.

The program of the court of common troubles was conducted in this fashion: The announcer stated that the opinions to be expressed on the cases presented were to be based on the law of Massachusetts, and that there was no intention to offer legal advice as a substitute for that given by attorneys. The names of two judges in the district or municipal courts of this Commonwealth were then given and a member of the bar was introduced as conductor. It was announced that anyone was invited to state his problems and that the purpose was to furnish enlightenment as to the law of Massachusetts. The conductor then asked some person to present his problem. That was done and the conductor clarified the matter by further questions if thought desirable. Then the advisory answer was given by one of the judges. The general practice pursued in determining the persons to appear before the microphone was for the conductor, prior to the broadcast, to meet various individuals who had written their problems and sent them either to the respondent or to the conductor. The conductor exercised his judgment in the selection of the particular persons whose problems were to be presented. Opportunity was thus afforded for consideration beforehand of the problem both by the conductor and by the judge who expressed an opinion at the time off the broadcast. The master’s report sets forth numerous instances where advice was given touching proper registration of an automobile, remedies for nonpayment of rent by a tenant, the right of an administratrix to recover possession and control of personal property belonging to the estate, the claim of a tenant for fixtures installed by him, the right of a young woman to an engagement ring after termination of the engagement, and divorce. Most of the cases stated involved questions of civil rights and liabilities and were of a nature usually dealt with by practising attorneys in the course of giving advice to clients in office consultation and [289]*289by judges of trial courts in the consideration of cases before them while on the bench.

The programs of the goodwill court were produced in New York and transmitted to the respondent’s studio in Boston. The respondent received a money consideration for the use of its facilities in broadcasting these programs. The methods pursued in the presentation of the goodwill court program were similar to those already described as to the presentation of the court of common troubles program, except that the conductor, so far as known, was not a member of the bar. The two judges who acted at each broadcast were at some times presiding judges in various courts in the State of New York and at other times either retired judges of the State of New York or presiding or retired judges of the State of New Jersey. There are recited in the master’s report various instances of the giving of advice over the broadcasting facilities of the respondent touching the legal problems arising in the usual experiences of life. The announcer at the outset of the program stated that the opinions to be expressed were based upon and in accordance with the law of New York and not in accordance with that of any other jurisdiction; that the law was different in different jurisdictions; and that there was no design in giving legal advice to supplant lawyers.

The goodwill court has been discontinued since December 20, 1936, when public statement to that effect was made. No program of the court of common troubles has been presented since December 19, 1936, although no public statement has been made concerning it. The time theretofore allotted to these programs by the respondent has been devoted to programs of a different character.

The respondent does not argue that it may practise law. Plainly it cannot lawfully do so. Opinion of the Justices, 289 Mass. 607. Matter of Maclub of America, Inc. 295 Mass. 45, 47. It is clear that the programs presented by the court of common troubles were within the sweep of the prohibitions of St. 1935, c. 346, § 1. The giving of advice as to legal matters has been commonly recognized [290]*290as an important part of the activities reserved for members of the bar and constitutes the practice of law. The instances of giving such advice by the respondent stated in the master’s report form the practice of law. Opinion of the Justices, 289 Mass. 607, 613. Matter of Shoe Manufacturers Protective Association, Inc. 295 Mass. 369, 372, 373. People v. Association of Real Estate Tax-payers, 354 Ill. 102, 109, 110. Fitchette v. Taylor, 191 Minn. 582, 584. People v. Alfani, 227 N. Y. 334. The giving of legal advice in the manner described in the master’s report not only violates the confidential relation of an attorney and client but is inconsistent with the traditional standards of the bar and the courts.

The argument that these programs were designed as gratuitous service to indigent persons is without foundation.

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Bluebook (online)
12 N.E.2d 819, 299 Mass. 286, 114 A.L.R. 1502, 1938 Mass. LEXIS 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenthal-v-shepard-broadcasting-service-inc-mass-1938.