State Ex Rel. Nebraska State Bar Ass'n v. Butterfield

Brower, J.,

concurring in part and dissenting in part.

I must respectfully dissent from the opinion of the court herein though I agree in the result as applied to the respondent.

The record shows that the respondent during the period of suspension drew a will. He was first consulted at his office by a nephew of the deceased husband of the testatrix concerning its execution. The testatrix had been his former client. He went to her home and consulted her in the presence of relatives in regard to the will’s contents. He made notes there and took them to his office. Thereafter he drew the will, procured the witnesses, and attended to its execution. Respondent claims it was largely copied from a previous will which is not in the record. In any event a new will, which because of her husband’s death was a different will, was drawn by him. Respondent also drew, attended to its execution, and took the acknowledgment on a power of attorney for this same lady after consultation with her and her relatives. It was written on a blank form but it was necessary to set out, prescribe, and delineate the power conferred. The drawing of a will has been held by the cases cited in the court’s opinion and by the referee in his report as practicing law. Under the *656 circumstances the drawing of the power of attorney was likewise practicing law. It is true that these instruments were only two in number, but the court in its opinion ordering the suspension particularly provided in State ex rel. Nebraska State Bar Assn. v. Butterfield, 169 Neb. 119 , 98 N. W. 2d 714 , as follows: “However, if he fails within a reasonable time to make such showing or fails to strictly comply with this order of suspension, then his suspension shall become permanent and an order of disbarment will necessarily follow.” Respondent contends he did not charge for the services and that they were isolated incidents which the court should overlook. The charging of fees is not essential to the practice of law as shown in the court’s opinion. It seems apparent that he sought to perform legal services for these clients whom he considered valuable clients and whose work he desired to do in the future. Under these circumstances he was consciously practicing law and his showing, even considering these cases alone, did not show strict compliance with the court’s order. If more is necessary his general attitude as set out in the court’s opinion, and which it is unnecessary for me to again detail here, shows that he has no conception of his own wrongdoing and blames his plight on others whom he states have sought to injure him but without having any tangible reasons therefor. He has not met the burden of proof required of him to show that he is entitled to reinstatement. I concur with the court in its refusal to reinstate the respondent and in ordering him disbarred.

In my own opinion this was about all that was necessary to decide in this matter. Generally speaking, I feel the court should restrict its opinion to the matters necessary to decide the case at hand and that such a rule is very salutory and is appropriate here.

I cannot agree with the opinion of the court holding that a suspended lawyer may not do those things which might properly be performed by persons not admitted to the bar. No authorities are cited which sustain this *657 proposition. The referee in his report could find none.

The court’s opinion cites In re Oliver, 97 Utah 1 , 89 P. 2d 229 , and State ex rel. The Florida Bar v. Evans (Fla.), 109 So. 2d 881 , on the proposition that a suspended lawyer is still a lawyer. It then states that a suspended lawyer is still obligated to comply with the canons of the profession. It does not necessarily follow of course that the suspended lawyer could not do that which a layman, broker, real estate agent, tax accountant, abstracter, or notary could lawfully do. The first of these cases merely holds that immoral acts in private life which would have barred admission might be considered on a question of reinstatement. The second of the cases holds that under Florida practice a suspended attorney at the end of the period of suspension might resume practice without doing anything.

The majority opinion concedes that a definition of the term “practicing law” involves great difficulty. It implies that the preparation of deeds, mortgages, releases, and income tax returns may be performed by persons not admitted to the bar. An examination of the authorities in the note cited by the referee in 53 A. L. R. 2d 788, as well as the previous notes therein mentioned, 111 A. L. R. 19, 125 A. L. R. 1173, and 151 A. L. R. 781, would indicate that in many instances real estate agents, brokers, managers, or accountants, and, in some instances, even laymen, could properly prepare them.

The court held that because these acts are also a proper part of the practice of law, they cannot be performed in any other capacity by a suspended lawyer if he is ever to be reinstated.

In some instances one’s law practice is his principal occupation and the other occupations are but incidents to it. In others the occupation of a broker, land agent, and income tax accountant constitute the major portion of one’s business. I cannot believe that one must desist from vital matters in such other occupations in which he is engaged to permit hope of reinstatement, *658 and that he must seek an entirely different avocation and permit his established business in other lines to deteriorate also.

It would appear these rules need not have been adopted to decide this casé and that they have only prospective value. That being true, they should, if necessary, have been either promulgated in proper rules of the court or Canons of Professional Ethics or the court should have awaited cases where their application became necessary and when others interested beside the respondent could be heard.