Ferris v. Snively

Beals, C. J.

(dissenting) — The evidence clearly shows that, in the course of his agreement with Mr. Snively, respondent practiced law within the legal definition effective in this jurisdiction, and that, as stated by the majority, respondent, in so doing, performed services which he could not lawfully perform. This being true, I am clearly of the opinion that respondent cannot recover upon his first cause of action. He was not licensed to practice law in this or any other jurisdiction, and in what he did violated both the letter and the spirit of the statutes of this state.

In deciding that respondent may recover herein for these services, the majority rely upon two cases, cited in the opinion, decided by the supreme court of Oklahoma. The facts in the two cases cited differ greatly from those in the case at bar. In each case, a man not licensed to practice law in Oklahoma joined with a licensed practitioner in contracting to represent a person desiring to bring a lawsuit; the unlicensed party to the contract later suing his associate for a share of the fee which the latter had received. The supreme court of Oklahoma, while assuming that such a party could not recover as against the client, held that he

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could recover a share of the compensation which had been paid to his associate; the recovery being allowed, among other reasons, on the basis of money had and received. It does not appear that, in either case, a recovery was allowed based upon services rendered in violation of law.' In each case, there were mitigating circumstances; one party having been admitted to practice before the territorial supreme court of Oklahoma, the other party having been regularly admitted to practice before the supreme court of a neighboring state.

The question here presented is entirely different. Respondent seeks to recover for services which he rendered, a considerable portion of such services having been performed in direct violation of the statute. Mr. Snively could lawfully employ respondent as his law clerk, and it is possible that respondent’s compensation might have been measured by a percentage of the fees received by Mr. Snively. No such question is, however, before us. Agreeing, as I do, with the majority in holding that the services rendered by respondent were so rendered by him largely in violation of law, I am clearly of the opinion that he cannot recover under his contract with Mr. Snively when such recovery must be based upon the performance of acts which the law forbade respondent to perform; it being impossible to segregate the lawful services which respondent rendered as a law clerk from those which he rendered by way of engaging in the practice of the law.

Respondent’s recovery upon his first cause of action being, in my opinion, based upon a contract which respondent performed in an unlawful manner, I am constrained to dissent from the conclusion reached by the majority.