The opinion
STEPHENS, Associate Justice.
I dissent. The question in this .case, is whether the activities of the appellee constitute the unlawful practice of law by it as a corporation, and whether its advertising unlawfully' holds it out as practicing law. I am unable to agree with the criterion chosen by the majority for the determination of what constitutes the practice of law by a corporation; and under the test which I think both sound and supported by substantial authority, I think the case should be returned to the trial court for further evidence and findings.
I.
The practice of law includes not only court work; but also the rendering of legal service — whether the giving of advice or the drafting of instruments — outside of court. This is explained in Opinion of the Justices, 1935, 289 Mass. 607, 613 , 194 N.E. 313 , 317, where it is said:
“Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in-court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. . . . No valid distinction . . . can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. The work of the office lawyer is the groundwork for future possible contests in courts. It has profound effect on the whole scheme of the administration of justice. It is performed with tljat possibility in mind, and otherwise would hardly be needed. In this country the .practice of law includes both forms of legal service; there is no separation, as in England, into barristers and solicitors. ‘ It is of importance to the welfare of the public that t.hese manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at' all times under the heavy trust obligation to' clients which rests upon all attorneys. The underlying reasons which prevent corporations, associations and individuals other than members of the bar from appearing before the. courts apply with equal force to the performance of these customary functions of attorneys and counsellors at law' outside of courts. Decisions of the *279 courts, some of which deal with statutes, are unanimous on these points, so far as we are aware.”
To the same effect see: Cain v. Merchants Nat. Bank & Trust Co., 1936, 66 N.D. 746 , 268 N.W. 719 ; People v. People’s Trust Co., 1917, 180 App.Div. 494 , 167 N.Y.S. 767 ; In re Duncan, 1909, 83 S.C. 186 , 65 S.E. 210 , 24 L.R.A.,N.S., 750, 18 Ann.Cas. 657.
II.
The majority opinion assumes that it is within the inherent power of the Federal courts of the District of Columbia to define and regulate the practice of law. The question is involved in the case and should I think be ruled on and decided in the affirmative. Opinion of the Justices, supra; Judd v. City Trust & Savings Bank, 1937, 133 Ohio St. 81 , 12 N.E.2d 288 ; State ex rel. Wright v. Barlow, 1936, 131 Neb. 294 , 268 N.W. 95 ; Rhode Island Bar Ass’n v. Auto Service Ass’n, 1935, 55 R.I. 122 , 179 A. 139 , 100 A.L.R. 226 ; Richmond Ass’n of Credit Men v. Bar Ass’n, 1937, 167 Va. 327 , 189 S.E. 153 .
III.
It is settled that a corporation cannot practice law. The law is a highly complex subject, and the practice of law demands on the part of the practitioner a large fund of professional information, expertness of judgment, and a high standard of dependability. The practice of the profession is, therefore, restricted to such individuals as, upon the basis of character and of preparatory study leading to the necessary professional knowledge and skill, are licensed by the courts. The purpose of the restriction to licensed individuals is that of protecting the public from ignorance, inexperience and unscrupulousness. The court in Opinion of the Justices, supra, stated the reasons thus:
“The relation of an attorney to his client is pre-eminently confidential. In addition to adequate learning, it demands on the part of the attorney undivided allegiance, a conspicuous degree of faithfulness and disinterestedness, absolute integrity, and utter renunciation of every personal advantage conflicting in any way directly or indirectly with the interests of his client. Only a human being can conform to these exacting requirements. Artificial creations such as corporations or associations cannot meet these prerequisites.” [289 Mass, at page 613, 194 N.E. at page 317]
In People v. People’s Trust Co., supra, the court said:
“The relation between attorney and client is confidential in the extreme. The attorney is under all the obligations attached to a fiduciary relation, and above all things he owes undivided loyalty to his client, unhampered by obligations to any other employer. . . . It is obvious that the intervention of a corporation, the general employer of an attorney, between him and his client, is destructive of this necessary and important relation. There can be no longer uninfluenced devotion to the client’s interests. There exists along with, and necessarily influencing, the devotion to the client, the duty which the attorney owes to his general employers. Divided obligations in trust relations are obnoxious to the law, and in none more so than in that of attorney and client. It was to remedy the growing tendency of corporations to enter the field of practicing law, and perform legal services through lawyers in their general employ, and owing loyalty primarily to them and not to the client, that this law was enacted, f 1 *****]” [ 180 App.Div. at page 496 , 167 N.Y.S. at page 768 ]
In Judd v. City Trust & Savings Bank, supra, defendant trust companies were drawing wills and trust agreements and other legal instruments and giving legal advice incident thereto, the defendants being named trustees, executors, administrators, guardians, or agents or other fiduciaries in the instruments. Holding that this constituted the practice of law and was unlawful, the Supreme Court of Ohio, speaking through Zimmerman, J., said:
“The acts stressed in the above definition [ 2 ] as constituting the practice of law are the performance of legal services for others. A corporation is ‘an artificial being, invisible, intangible, and existing only in contemplation of law.’ Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 , 4 L.Ed. 629 , quoted in State ex rel. *280 Crabbe, Atty. Gen. v. Thistle Down Jockey Club, Inc., 114 Ohio St. 582, 590 , 151 N.E. 709, 711 . It can function only through its officers, agents, or representatives. A salaried trust officer or employee of a bank or trust company, regularly employed, whether a member of the bar or not, is as much an integral and essential part of its organization as the president or cashier. Corporations may not practice law. Therefore, when a trust company through its attorney-employee performs services for customers or patrons in drafting wills, trust agreements, or contracts and other instruments requiring the exercise of legal skill, such corporation must be held to be practicing law within the quoted definition from the Dworken Case. And this fact is not altered by the inclusion of the trust company in such instruments as a fiduciary.
* * *
“Furthermore, when an attorney-employee of a trust company prepares legal documents of the character denoted for the patron or customer of the corporation, the latter is deprived of the offices of an independent legal counselor; patently the allegiance of the attorney-employee is to his employer. ‘The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence. It cannot be delegated without consent and it cannot exist between an attorney employed by a corporation to practice law .for it, and a client of the corporation, for he would be subject to the directions of the corporation, and not to the directions of the client.’ In re Co-operative Law Co., 198 N.Y. 479, 483 , 92 N.E. 15, 16 , 32 L.R.A., N.S., 55, 139 Am.St.Rep. 839 , 19 Ann.Cas. 879.” [ 133 Ohio St. at page 86, 87 , 12 N.E.2d at page 291 ]
In State ex inf. Miller v. St. Louis Union Trust Co., 1934, 335 Mo. 845, 867-9 , 74 S.W.2d 348, 358, 359 , the defendant corporation was drafting insurance trusts and living trusts for customers. In respect of this the Supreme Court of Missouri, in an opinion by Atwood, J., said:
“Of course, a trust instrument signed by both settlor and trustee means that the trustee has agreed to act in accordance with the ‘terms of the trust.’ It may be that the latter part of above subdivision 4[ 3 ] recognizes that the trustee ‘has a legal right to discuss with the creator of the trust’ the terms by which it agrees to be bound, and that in so doing, and even in drawing the instrument, the trustee may act, not in a representative capacity, but in its own right, just as a party to any other contract would act. Even so, we find nothing, either express or implied, in the statute under which trust companies are created which authorizes them to advise or counsel any other person for a valuable consideration ‘as to any secular law,’ or to draw or assist in drawing for any other person for a valuable consideration ‘any paper, document or instrument affecting or relating to secular rights.’ If they do these things, they are amenable to the statutes here invoked, because subdivision 13 of section 5421, R.S.1929 (Mo.St.Ann.. § 5421, subd. 13, p. 7629), under which trust companies are created, makes them subject ‘to all liabilities and duties imposed upon them by any law of this state.’
"We are unable to reconcile respondent’s insistence of single representation with the proof of what it actually does. The evidence shows that one desiring to create an insurance trust or a living trust comes to respondent because, for one reason or another, he believes that it is peculiarly qualified to advise concerning and to execute such trusts. When the prospective patron indicates that he will nominate respondent as trustee, respondent, apparently recognizing the impropriety of acting both for itself and the settlor of the trust in such .matters, tells him that he-should advise with his lawyer and have him-draw the instrument. If he has no regular lawyer, respondent suggests one. If, actuated perhaps by unusual confidence in respondent or by a sense of thrift when he-learns that respondent will perform these-services ‘free,’ he does not consult a lawyer, then respondent draws the instrument for- *281 him, and gives him all counsel and advice requested in connection therewith, all for the consideration of being nominated trustee, which we have just held is a valuable consideration. The evidence abundantly shows that frequently such counsel and advice relate to secular laws, and the instrument drawn necessarily affects, and relates to, secular rights of the settlor and his beneficiaries.
“In such circumstances, we think it is no answer to say that the trust company does these things solely for itself and not for the settlor of the trust, and that the latter knowingly accepts the services at his own risk. When such services' are rendered without the intervention of disinterested counsel, it is fair to assume that, if the settlor of the' trust is not himself a lawyer, he knows substantially nothing ‘as to any secular law’ or as to how the instrument tendered for his signature affects or relates to his ‘secular rights’ or those of his beneficiaries, except what the employees of the trust company tell him, and he accepts these services as rendered for him and as fully protecting the interests he wants to conserve. Surely respondent does not mean to say that it does these things solely for itself and not for the settlor of the trust, when • it has lulled him into a sense of security and acceptance of the service by finally doing the very thing it said should be done by disinterested counsel and which the law says it cannot do. It will not be heard to say that it is doing only the one thing when the whole transaction shows that it is also doing the other.
“Reasons grounded in the public welfare call for strict enforcement of these statutes against corporate fiduciaries. Naturally the settlor of a trust wants the most service that can be had from the trustee at the least expense to his estate. Just as naturally the trustee wants as broad powers with as little liability and as much compensation as may be consistent with getting and holding the trust business. Thus, in the very inception of a trust agreement, there are certain interests of the settlor and the trustee that are conflicting. The same situation arises when one nominated as executor or trustee undertakes to draw a will or advise the will maker as to any secular law in connection therewith. It is well stated in the Yale Law Journal, vol. 41 (1931-1932) pp. 82, 83, as follows:
“ ‘It is obvious that the salaried employee of the trust company cannot be cornpletely disinterested. At times the best interests of the testator are served by an outright disposition of his estate, but then there are no trustee’s fees. Circumstances might make it desirable that there be two trustees, but in that event the company would have to share the fees with another. It is often in the client’s interest that the trust be of short duration, but those which endure over a long period of years are most profitable to the fiduciary. The client’s interest might demand that the powers of the trustee be rather limited, but the company wants them as broad as possible. It is in the interest of the trust company that a provision be inserted making it liable only for actual misfeasance or gross negligence, while the client’s interest might demand that the trustee be held to a high degree of care.
“ ‘The trust officer is thus placed in an awkward position. His salary is directly or- indirectly dependent upon the amount of trust business which he secures. As a conscientious employee he will try to further its interests whenever possible. It is a rather unusual man who under such circumstances solely considers the interest of the testator. And even such conscientious men, trained in the trust company atmosphere and possibly having exaggerated ideas of the advantages of trusts and corporate fiduciaries, might easily convince themselves that the interests of the client and of the company were identical.’ ”
I am in substantial accord with the views expressed in the quotations above. The individual in need of legal service is entitled to be guided by professional learning and skill, and neither of these can a corporate entity possess except through its lawyer agents. He is equally entitled to have his rights protected by legal service loyal, consistently with the good of the public at large, to his interests alone. Both of these elements of professional protection must be assured those who stake their lives, liberty, property, or happiness upon the services of a legal adviser. And I think that a corporation, acting through lawyer agents, cannot assure both to the corporate customer. It may be capable of commanding able legal talent, but it cannot assure on the part of its lawyers singleness of interest in the customer’s cause or in the choice or drafting of instruments to which both the customer and the corporation are parties. The lawyer who represents the corporation must, in advising the *282 customer or in determining upon and drafting instruments, act not only for the welfare of the customer but also for the benefit and profit of the company, which is governed by directors whose duty — itself a fiduciary duty — toward stockholders is to look to profit. The interests of the two, company and customer, are usually in some particulars substantially conflicting. It has from time immemorial been settled that the individual practitioner of law cannot represent two persons whose interests are in conflict. I think that the trust company lawyer in most of the instances in which he renders legal service to customers, whether in the form of advice as to a course of action in respect of personal or property affairs or by way of the choice and drafting of instruments, does represent two persons whose interests are in some part in conflict. Although he is rendering legal service to the customer, his primary professional allegiance is necessarily to the corporation, which is his real client.
It is settled that “Since it [a corporation] has no right to practice law directly, it cannot do so indirectly by employing a licensed attorney to practice for it, as that would be a mere evasion of the law.” Cain v. Merchants Nat. Bank & Trust Co., supra, 66 N.D. at page 751 , 268 N.W. at page 722. And see People ex rel. Los Angeles Bar Ass’n v. California Protective Corp., 1926, 76 Cal.App. 354 , 244 P. 1089 . And I think no distinction can be drawn in this respect between the permanent salaried lawyers of a corporation (referred to in the instant case as attorney-officers) and its occasionally retained counsel, for both represent of necessity primarily the corporation.
A corporation may of course represent itself through its own lawyers, whether permanently salaried or occasionally retained. Commonly thus private corporations file and conduct suits in their own interests and defend actions brought against them. But it is noteworthy that in such situations the corporations are not representing third parties as customers or clients. As a corollary to the proposition that corporations may represent themselves, trust companies, when authorized by statute to act as executors or administrators, may, when duly appointed such, take through their own lawyers the court orders necessary to probate an estate. Detroit Bar Ass’n v. Union Guardian Trust Co., 1937, 282 Mich. 216 , 276 N.W. 365 ; Judd v. City Trust & Savings Bank, 1937, 133 Ohio St. 81 , 12 N.E.2d 288 . See contra: In re Otterness, 1930, 181 Minn. 254 , 232 N.W. 318 , 73 A.L.R. 1319 . The theory of the two cases representing the majority view on this subject is that once the legislature has authorized trust companies to act as executors or administrators of estates, it must be taken to have authorized them to perform the duties attached to the fiduciary office, including the taking of the necessary orders in the course of probate. It is to be noted, however, in respect of this type of corporate legal activity, that probate orders are made by a judge whose duty it is to protect the interests of creditors and beneficiaries, whether or not it may be said that the trust company executor or administrator represents not only itself but also such persons. It is to be noted further that except in respect of misconduct in the course of probate proceedings or in respect of making accounts, there is not likely to be diversity of interest as between an executor or administrator on the one hand and beneficiaries or creditors of an estate on the other. In re Otterness, supra, the Supreme Court of Minnesota was of the view that only in such matters as affect the rights of the corporate executor or administrator — where its account is in question or misconduct charged — can a bank through its own lawyers carry on probate proceedings. I am of the view, however, that the rule reflected in the two cases first mentioned is well settled and proper.
IV.
The instant case being novel in this jurisdiction, the most important question before the court is what is the criterion by which shall be determined what constitutes the practice of law. And clearly the choice of a criterion must be made from the standpoint of public protection, not from that of private advantage for either trust companies or lawyers.
There is some authority to the effect that the drafting of simple legal instruments such as bills of sale, deeds and chattel mortgages, does not constitute the practice of law provided it is done incidentally to the business of the corporation. Cain v. Merchants Nat. Bank & Trust Co., 1936, 66 N.D. 746, 754 , 268 N.W. 719, 723 ; People v. Title Guarantee & Trust Co., 1919, 227 N.Y. 366 , 125 N.E. 666 . Cf. Childs v. Smeltzer, 1934, 315 Pa. 9 , 171 A. 883 . I state below what part I think the so-called “incidental to the business of the corpora *283 tion” aspect of the test should play. But apart from that, the theory of such cases apparently is that the drafting of simple instruments like those mentioned is of so routine a character, requires so little of legal knowledge and skill, and involves so little service of a confidential character, that it lies within a field of activity permitted by custom to both businessmen and lawyers and not one necessarily classed as within the exclusive province of the legal profession. I think, therefore, that these cases do not hold that it does not constitute the practice of law to draft such simple legal instruments if, antecedent to the drafting of them, there has been exercised by the draftsman substantial legal knowledge and skill in determining from facts presented by a customer what instrument should be chosen, if any. What they in effect permit is the sale of legal forms rather than of advice as to the use thereof. And it is important to note that the drafting of legal instruments, whether simple or complex, presupposes in the vast majority of instances the exercise of legal knowledge and skill, not merely in the drafting process, but also in the often far more important determination of whether, in, effectuating the desires and protecting the interests of the client concerned, any instrument is necessary and if so what instrument and what contents. That is to say, there is a field of professional activity in the law, as also for example in medicine, which requires the expert assembling and study, in the light of professional knowledge, of material facts, and the pronouncing upon them, in view of professional principles, of what in law is broadly called an opinion, and in medicine a diagnosis. The surgeon who has decided to operate, or the internist to treat, has first determined that there is disease and what it is and what the remedy. The lawyer who has decided to draft an instrument or to advise a course of action has first determined that there is a legal right or obligation involved and what the technique of conduct or draftsmanship must be to effectuate or enforce the same. The person who sells “home remedies” for simple ailments without a physician’s license is invading the practice of medicine if he names the ailment and prescribes the medicine, for this presupposes the exercise of professional knowledge and judgment. He who drafts “simple instruments” for “routine transactions” without admission to the bar will in many instances invade the practice of law, because identifying the proposed transaction and selecting the appropriate instrument require . the exercise of legal knowledge and judgment.
The distinction that I am emphasizing is recognized in In re Eastern Idaho Loan & Trust Co., 1930, 49 Idaho 280, 285, 286 , 288 P. 157, 159 , 73 A.L.R. 1323 , where the court said:
“Such work as the mere clerical filling out of skeleton blanks or drawing instruments of generally recognized and stereotyped form effectuating the conveyance or incumbrance of property, such as a simple deed or mortgage not involving the determination of the legal effect of special facts and conditions, is generally regarded as the legitimate right of any layman. It involves nothing more or less than the clerical operations of the now almost obsolete scrivener. But, where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to insure a specific result and guard against others, more than the knowledge of the layman is required . . .
Some authorities regard the receipt of consideration as a factor in determining whether the practice of law is being carried on. In re Eastern Idaho Loan & Trust Co., supra; Cain v. Merchants Nat. Bank & Trust Co., supra; In re Duncan, supra. And weight is given to this factor in the implications of the majority opinion. One of the arguments of the appellee in support of the proposition that it is not practicing law is that its fees as trustee remain the same whether or not legal service is furnished a customer. Whether consideration is directly allocated to the rendering of legal service is not in my view controlling. There is consideration whether the trustee’s fee is raised or not. A corporation cannot give away service any more than it can give away property. And the cost to the corporation of the legal service said to be free is necessarily somewhere charged to cost of getting business or to overhead. The trustee’s fee simply spreads over both the legal service and the fiduciary duties so that while the consideration for each of these two classes of service may be said to be less, nevertheless there is consideration for both in both legal and practical effect. Indeed, naming the company trustee in a trust agreement to be drawn by it is alone consideration. See the discus *284 sion of this subject in State ex inf. Miller v. St. Louis Union Trust Co., supra. But even if the legal service were actually free, that would ,not in my view necessarily characterize the service as not the practice of law. I think that while the presence of consideration, either direct or indirect, is strong evidence that legal service is in a professional sense being rendered the customer, the absence of consideration is not necessarily determinative that the attorney is acting solely for the employer corporation.
There is authority to the effect that even complex legal instruments, the drafting of which requires substantial knowledge and skill of professional character, and to which others are parties with interests consequently affected, may be drawn by a corporation through its officers, provided the preparation of such instruments is incidental to the corporate business itself. Umble’s Estate, 1935, 117 Pa.Super. 15 , 177 A. 340 . See Childs v. Smeltzer, 1934, 315 Pa. 9, 15 , 171 A. 883, 885 . This last case involves laymen rather than corporations, but it adopts the view expressed in a concurring opinion by Pound, J., in People v. Title Guarantee & Trust Co., 1919, 227 N.Y. 366, 380 , 125 N.E. 666, 670, a case involving a corporation. Judge Pound put it thus:
“The preparation of the legal papers may be ancillary to the daily business of the actor or it may be the business itself. The emphasis may be upon the services of the broker or the business of the trader, or it may be upon the practice of law.”
This criterion permitting the rendering of legal service by a corporation to customers where it is incidental to its own business to do so, is the criterion urged by the appellee and adopted by the majority in the instant case.
I think this criterion unsound and not supported by the weight of authority. It has the merit of a rule of thumb, of simplicity, and convenience of application, but it will not I think operate satisfactorily in protection of the public. As a negative test it may be sufficient. That is to say, if the putative legal service rendered is not incidental to the business of the corporation, then it is probably improper. But as a positive test the criterion selected by the majority is I think lacking. It warrants the drafting of all instruments — wills, trust agreements or what not — of however complex a nature and requiring whatever degree of professional knowledge and skill in either the choice or the drafting; and it permits the giving of legal advice of whatever nature and however expert may be the knowledge required to give it — provided only that the legal service is rendered to the customer incidentally to the business of the corporation.
V.
I think public protection requires the choice of a sterner criterion. I would retain the “incidental to the business of the corporation” test in its negative aspect. That is to say, I think a corporation ought not to be permitted to furnish legal services to others unless in so doing it is acting incidentally to its own business rather than making the furnishing of the legal service its primary business. But I think the test should go beyond this in its positive aspect. It should, in my view, be: Does the legal service rendered (whether advice, or the determination whether to use an instrument and if so what should be the nature ¿nd contents thereof) require in a substantial sense the knowledge and judgment of a lawyer; and is it rendered in whole or in part to a customer of the corporation rather than solely to the corporation. If this question can be answered in the negative, then the activity is proper. But if it must be answered in the affirmative, then the activity is improper. It will then be either a case of the pure sale of legal service by a corporation, or a case where the corporation lawyer is représenting both the customer and the corporation. I recognize that this test is less simple and convenient than the criterion chosen by the majority! It will require examination of the particular legal services rendered rather than a mere classification of activities according to whether simple or complex instruments are drawn, or a mere determination of the presence or absence of consideration, or the mere ascertainment of whether either a particular act or a class of activities is incidental to the business of the corporation. But I think the test which I have stated is necessary in public protection and I think it accredited by the weight of authority, if not in terms at least in essence. See the following cases holding that the drafting of wills and trust agreements in which the corporation was named as fiduciary is the practice of law and is unlawful: Judd v. City Trust & Savings Bank, supra; People ex rel. Committee on Grievances of Colorado Bar Ass’n v. Denver Banks, 1936, 99 Colo. 50 , 59 P.2d 468 ; State ex inf. *285 Miller v. St. Louis Union Trust Co., supra; Detroit Bar Ass’n v. Union Guardian Trust Co., supra. And see the following cases involving the drafting of instruments (by both individuals and corporations) where the draftsman was not a party, i. e., where the drafting was the primary business rather than merely incidental to the business. Childs v. Smeltzer, supra; People ex rel. v. People’s Stock Yards Bank, 1931, 344 Ill. 462 , 176 N.E. 901 ; In re Eastern Idaho Loan & Trust Co., supra. And see the following cases in respect of the furnishing of legal advice: Opinion of the Justices, 1935, 289 Mass. 607, 615 , 194 N.E. 313 , 318; Land Title Abstract & Trust Co. v. Dworken, 1934, 129 Ohio St. 23 , 193 N.E. 650 .
VI.
In respect of the activities of the appellee as shown by the evidence and found by the trial court in the instant case: I think that, within the “incidental to the business of the corporation” test urged by the appellee and accepted in the majority opinion as the proper criterion, the appellee has conscientiously kept its activities, including advertising, within lawful limits. 4 And I think that its activities in probate court in respect of uncontested matters in estates of which it is executor or administrator are proper under the rule which I recognize and discuss in topic III above. In contested probate matters, the appellee apparently represents no one but itself. Whether or not within the criterion which I have suggested the appellee has, in its service of customers in activities other than probate, gone beyond the law could not, except in respect of certain aspects of the advertising, upon which I comment below, be determined upon the present findings and evidence. It would require a return of the case to the trial court for the taking of additional testimony concerning the detail of a substantial number of particular acts of putative practice of law in order to determine whether in such particular situations substantial professional knowledge and skill were exercised. And it would require detailed findings upon such evidence. The present evidence and the present findings are descriptive largely of classes of activities as incidental to the appellee’s business, and are far too general to make possible a ruling under the criterion which I think proper.
It may be helpful, however, in illustration of my point of view in respect of the criterion which I urge, to set the findings out and to comment upon the activities of the appellee so far as they appear from the evidence and findings. I append the findings in the margin, 5 except those in respect of probate matters.
*286 In respect of the drafting of legal instruments: The appellee does not draft wills or codicils hut it does prepare trust agreements. I think no material distinction can be drawn so far as the rendering of legal service is concerned between the drafting of wills and the drafting of trust agreements. And it seems probable that in most of the instances embraced within the class of activities described in the italicized portion of the finding concerning the drafting of trust agreements, there must have been exercised by the appellee substantial professional knowledge and skill in determining whether or not a trust agreement was advisable in respect of a particular customer’s personal and property situation, what kind of a trust agreement was advisable, and what its contents should be and how phrased.
With respect to agency, custodian, management agreements and other miscellaneous instruments: Conceivably the determination whether an agency, custodian, or management agreement is appropriate to a customer’s situation, and the choice of such an agreement or the determination of the contents and phrasing thereof, might *287 require substantial professional knowledge and skill. Possibly, however, this class of activity might not fall within the test I suggest.
With respect to taxation: Many aspects of tax work do not require the knowledge and skill of the lawyer as distinguished from that of the businessman or accountant. It seems probable, however, that to advise concerning what constitutes income for purposes of taxation would require substantial professional knowledge of the detail of judicial decisions and skill in applying them to the tax facts of a particular customer’s affairs. It seems probable further that the giving of information concerning tax statutes and regulations would require the exercise of professional understanding of judicial decisions construing them. The class of activity described in the material following the italicized portion of the finding concerning taxation matters would seem warranted within the principles governing the decisions permitting trust companies as executors or administrators of estates to take necessary probate orders.
Concerning legal information: The appellee seems to urge a distinction between legal information and legal advice. It is said that the latter suggests a course of action whereas the former does not. I think no sound distinction can be thus made. Legal information is usually sought only for the purpose of determining what to do in the light of it. And it seems likely that to present to a customer the advantages of making a will and the disadvantages of intestacy, or the comparative advantages of revocable and irrevocable trusts, would require substantial professional knowledge and skill. And it seems unlikely that the language of statutes of descent and distribution could be dependably explained to customers without the knowledge and judgment of a lawyer concerning judicial decisions construing such language. The mere face of such statutes is by no means always sufficiently informative. One of the appellee’s trust officers, testifying as a witness for the appellants, admitted that upon the request of a customer the rule against perpetuities would be explained.
With respect to advertising: The appellee’s advertising is so broadly phrased as fairly to include most of the activities which are described in the findings of fact. To the extent, therefore, that the advertising covers items which would prove to be unlawful under the criterion I suggest, the advertising itself would be unlawful.
The evidence in the present record sufficiently particularizes the advertising to show that part of it is improper under the test which I suggest. I append in the margin 6 a portion of the record containing excerpts from an advertising booklet distributed extensively by the appellee to the public. While the matter contained within these excerpts does not in so many words state that the appellee will furnish professional services, I think that when read as a whole it necessarily implies that professional knowledge and skill will be exercised by the appellee in advising customers *288 concerning their estate matters, and this notwithstanding some contrary statements and implications in other portions of the advertising.
The reference is to N.X.Penal Law, § 280, making it unlawful for a corporation to practice law. I have stated above that in my view it is within the inherent power of the courts to define and regulate the practice of law.
The reference is to a definition of the practice of law in Land Title Abstract & Trust Co. v. Dworken, 1934, 129 Ohio St. 23 , 193 N.E. 650 .
The reference is to Mo.St.Ann. § 5421 (4), p. 7628, providing that trust companies may be created “To take, accept and hold, by the order, judgment or decree of any court of this state, or of any other state, or of the United States, or by gift, grant, assignment, transfer, devise or bequest of any person or corporation, any real or personal property in trust, and to execute and perform any and all such legal and lawful trusts in regard to the same upon the terms, conditions, limitations and restrictions which may be declared, imposed, established or agreed upon in and by such order, judgment, decree, gift, grant, assignment,, transfer, devise or bequest.”
It is proper to state further that I am aware that there is no question in this case as to either the integrity or the dependability of judgment of either the appellee or its lawyers whether permanent salaried lawyers or occasionally retained counsel. And the appellee and its counsel have in this test case made known to the court' with commendable frankness the classes of service which it renders customers.
So far as pertinent to the comments in the text the findings were as follows:
Trust Agreements
“Defendant does not have its attorney-officers draft trust agreements, except occasionally such attorney-officers prepare simple, revocable trust agreements of a stereotyped form, which do not contain provisions of a testamentary nature. If a customer requests defendant to draft a trust agreement, ordinarily defendant recommends that the customer employ his own independent attorney for that purpose, at his own expense. If the customer prefers to have defendant's counsel prepare the trust agreement, defendant has its counsel do so and pays the fee of its counsel for that service, and no charge is made against the customer or later against the trust estate therefor. To all such agreements defendant is or expects to he a party and defendant does not draft, either hy its attorney-officers or counsel, any agreements, to which it is not a party.” [Italics supplied]
Agency, Custodian and Management
Agreements and Other Miscellaneous Instruments
“Defendant has its attorney-officers prepare agency, custodian and management agreements, to which defendant is or expects to be a party, such agreements being usually on stereotyped forms that are simply a matter of typing. Occasionally when a debt is paid, a release of the deed of trust is sometimes prepared on a printed form in defendant’s office, but usually defendant’s real estate department has all deeds, mortgages, deeds of trust and instruments of that nature prepared by title insurance companies and defendant makes no charge and receives no compensation therefor.”
Taxation Matters
“Defendant prepares income tax returns for about fifty customers of the Trust Department, hut never makes a *286 charge for and is gradually eliminating that service. Sometimes individual employees working overtime at night, prepare income tax returns for customers and receive compensation therefor, but that is a personal matter between the employees and customers and defendant receives no part of such compensation. In all cases where defendant is fiduciary, Federal income tax, estate tax and District of Columbia tax returns are prepared by defendant’s employees as part of defendant’s duties as fiduciary. Defendant’s employee in charge of making such tax returns is not a member of the bar. When questioned by customers, defendant’s officers and employees give such customers information as to the rates of taxation and the provisions of taxing statutes and regulations, and sometimes malee tax computations, for example, showing the difference between gift taxes payable if a trust is created and estate taxes payable at death, but no charge is ever made for that service. Occasionally, in connection with estates of which defendant is fiduciary, defendant’s officers and employees appear before administrative tax officials of the District of Columbia and Federal Government, but when a matter becomes contested before the Board of Tax Appeals, or before administrative officials, defendant employs independent counsel and is not represented by its salaried officers and employees.” [Italics supplied]
Legal Information
“When customers or prospective customers, in response to advertisements or otherwise, consult defendant’s officers and employees, about their estate problems, defendant’s officers and employees discuss with them in a preliminary way investment problems, the advantages of making a will and the disadvantages of intestacy, the comparative advantages incident to ' the creation of revocable and irrevocable trusts, agency, custodian and management agreements and, when ques tioned, by customers, defendant’s officers and employees give them information about the contents of statutes, such as statutes of descent and distribution and taxing statutes, and tell them where their property will go; that it can be put in trust for an infant, and that such trust can be limited or terminated at a certain time, but defendant does not advise or attempt to influence or guide a ctistomer as to which of several courses he should pursue. If asked, defendant’s trust officers would tell a customer what a living trust covers. Whenever a customer appears to be confronted with a legal problem, defendant insists that he consult and obtain the legal advice of his own attorney. When any question arises as to the legal rights of beneficiaries, or next of kin, apart from what appears on the face of the statutes, defendant does not undertake to advise them but sends them to attorneys of their own choosing.” [Italics supplied]
Advertising
‘^Defendant advertises in newspapers, booklets and by other means that it is qualified to serve as executor, administrator, trustee and in other fiduciary, capacities. In such advertisements, defendant states the advantages which its officers believe will be secured by employing a corporate fiduciary and particularly by employing the defendant, setting forth facts relating to its financial responsibility, continued existence, knowledge of investments and financial problems, its knowledge of various phases of taxation and its experience in handling and managing estates. By such advertisements, the public is invited to consult defendant’s trust officer and to discuss their estate problems with such officer and his assistants. Some of the defendant’s advertisements state specifically that it does not draw wills; that that is a task for the prospective customer’s attorney, and invites prospective customers to have their attorneys discuss their estate problems with defendant’s officers.”
Things to Check in Your Will
Personal Effects:
Does your will state who shall receive them, avoiding possible disagreement?
Specific Bequests:
Will payment of specific bequests to beneficiaries other than your family leave too little for your family?
Taxes:
Have you provided liquid assets to pay estate and inheritance taxes, in order to prevent losses from forced liquidation, and have you planned your will to minimize the taxes your estate will be compelled to pay?
Residuary Estate:
Will it be large enough to yield the income your family will require?
Trusts:
Have you left part or all of your estate in trust to assure safety of principal, freedom from the burdens of investment and property management for your heirs, and to secure the maximum savings in death taxes?
Investments:
Does your will contain instructions as to investment of estate funds?
Real Estate:
- Have you provided for management or disposition of your real estate?
Children:
Does your will take into consideration the needs of your children of different ages or conditions of health?
Minors:
Does your will appoint a trustee for the property you may leave to minors?
Life Insurance:
Changes in tax laws may have made your life insurance program obsolete, no matter how carefully it may have been *288 planned a short time ago. We invite you to confer with one of our experienced trust officers in this connection.
Business Interests:
Specific arrangements (trust or purchase agreement) separate from your will, should possibly be made for them.
Special Instructions:
Does your will completely instruct your executor concerning special matters? Executor-Trustee:
Have you named an executor that is capable, diligent, responsible, permanent?
* ** *
An Invitation
We have described some of the modern methods that more and more prudent men and women are now using to transfer and conserve their estates. We have shown how these methods provide satisfaction economy and protection; and we have suggested the wisdom of making them a part of your plan for your estate.
If you do so you and your family will gain some very worthwhile advantages in addition to those discussed in this booklet — especially in the cost of transferring your estate through succeeding generations of your family.
We invite you to discuss these matters with one of our Officers. Such a discussion, arranged for your convenience, will include only such subjects as you care to discuss. It will be held in strict confidence. Its purpose will be to enable us to answer your questions, and to offer you suggestions and assistance.
We believe you will find much of interest and value in the information we can give you. We offer it, without obligation or charge, with confidence that it will enable you to greatly increase the effectiveness of your plans for your estate and family.