State v. . Bryan

4 S.E. 522, 98 N.C. 644

• Court: Supreme Court of North Carolina
• Decided: September 5, 1887
• Status: Published

Opinion

Davis, J.,

(after stating the case). Section 27 of The Code is as follows: “It shall not be lawful for any attorney at law or justice of the peace to practice law as an attorney in any of the judicial courts held for the county wherein they hold the office of County Commissioner or justice of the peace. And any person offending against this section shall be guilty of a misdemeanor,” «fee.

This is the first time that this Court has been called-upon to construe the above section. It was earnestly insisted by the very able counsel who represented the defendant that it was intended to apply only to licensed attorneys, who might also be justices of the peace, and to prohibit such attorneys from practicing only in the courts of the counties in which they resided. We cannot give this restricted interpretation to the statute. If such had been the intention of the Legislature the words “or justice of the peace,” after the words “ attorney at law,” would have been surplusage. It was intended to make it a misdemeanor in a justice of the peace to practice law as an attorney in any of the judicial courts of his county. Is the evidence presented sufficient to establish, beyond a reasonable doubt, the charge that the defendant did so practice law within the meaning of the statute? “An attorney, in the most general sense, is a person designated or employed by another to act in his stead — an agent; more especially one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly styled attorneys in fact; but the single word is much used as meaning an attorney at law. A person may be an attorney in fact for another, without being an attorney at law.” Abbott’s Law Dictionary — Attorney.

“ A public attorney, or attorney at law,” says Webster, “is an officer of a court of law, legally qualified to prosecute and defend actions in such court on the retainer of clients.”

“The principal duties of an attorney are: 1, to be true to the Court and to his client; 2, to manage the business of his client with care, skill and integrity; 3, to keep his client informed as to the state of his business; 4, to keep his secrets, confided to him as such. * * * His rights are, to be justly compensated for his services.” Bouvier’s Law Die.; Title, Attorney.

The transitive verb, practice, as defined by Webster, means: “To do or perform frequently, customarily, or habitually; to perform by a succession of acts:- as, to practice gaming; * * * to carry on in practice or repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art, &c., as, to practice law or medicine,” &c.

There is no evidence that the defendant received any retainer or fee, or that he charged anything for his services, or that he proclaimed himself as a lawyer, or that he held himself out to the public as such, or that he practiced for reward as a lawyer, or that he appeared in any other case, or that he claimed any just “compensation for his services,” which last is an essential element in the practice of law.

May not a justice of the peace act as agent or attorney of another without being guilty of 'practicing law ? The single act of the defendant, as testified to, is consistent with such an agency, and nothing more appearing, while it is evidence, it is not sufficient in itself to meet all the essential elements necessary to show that the defendant “practiced law as an attorney,” so as to require that the jury should, without more evidence, render a verdict of guilty. There was no evidence that the defendant was in the habit of appearing or practicing “as an attorney at law,” or that he received any compensation, or that he held himself out to the public as an attorney at law. He only professed to act as “ agent,” and the evidence was not sufficiently full and complete to make it obligatory on the jury, to render a verdict of guilty.

There is error, and the defendant is entitled to a new trial.

Error.