applying the English common law granting courts the duty of maintaining the standards of the - legal profession, because there had not been "any attempt on the part- of the General Assembly to control it”
How later courts described this case
- applying the English common law granting courts the duty of maintaining the standards of the - legal profession, because there had not been "any attempt on the part- of the General Assembly to control it”
- “The admission of attorneys to practice, and the exclusion of unauthorized persons from practice lie within the province of this court.”
Written by the judges who cited it.
The opinion
Bramhall, Justice
(concurring) : I agree with the conclusion of the majority in this case that the judgment of the lower court should be affirmed. My objection goes solely to the declaration therein that a lawyer has no right, property or otherwise, to enjoin the unauthorized practice of the law. I do not reach the question of whether or not such a finding is correct.
*233 The prayer of the complaint in this case is to enjoin the defendants from the unauthorized practice of optometry. The right of plaintiffs to enjoin defendants from the unauthorized practice of optometry was the question for determination before the Court of Chancery and is the question presented to this Court. In their briefs and at the argument before this court plaintiffs, contending that in the consideration of this question an optometrist stood on the same footing as a lawyer, cited decisions of courts of last resort in a number of other states to the effect that a lawyer has such a right or interest in the practice of his profession as b> permit him in his individual capacity to sue for an injunction to enjoin others engaged in the unauthorized practice of the law. Plaintiffs contended that, since under the great weight of authority a lawyer in his individual capacity could enjoin one from engaging in the unauthorized practice of the law, an optometrist would have an equal right to enjoin the unauthorized practice of optometry.
I agree that such an argument may be pertinent for the purpose of persuading this Court to decide plaintiffs’ case in their favor. I concede that, at times, in order to reach a proper conclusion on the main issue, it may be necessary for a court to pass upon a question having only an incidental relationship to the main issue. But I do not agree that such necessity is presented here. I concur in the language of the Vice Chancellor in his opinion, in which he stated that the plaintiffs’ equitable rights, if any, lie on a narrower basis, namely: their statutory rights under the provision of Ch. 21, Title 24, Del.C. 1953.
Without attempting to decide their relative position under the facts of this case, there can be little question but that in some respects at least the optometrist and the lawyer stand on an entirely different footing. Any rights which an optometrist may have would depend entirely upon the statute. On the other hand, — as so well set forth in the scholarly opinion of the majority — in this state the practice of the law is an outgrowth of the English common law system. Under this system an attorney is in a quite different category from that of one engaging in any other profession. Attorneys are officers of the court, subject to the control of the court in their actions. For good *234 reason they may be punished by the court or prohibited from practicing in an improper manner, or at all. I can see the plausibility of the argument, as set forth in the opinion of the majority, that such a position may be only another reason why an injunction against the unlawful practice of the law will not lie, but I do not believe that this Court should determine such an important question in this case where, at most, it is only collateral to the main issue.
The opinion of the majority, as far as it relates to the unauthorized practice of the law, runs directly counter to the weight of authority as laid down in the decisions of courts of last resort in other states. Smith v. Illinois Adjustment Finance Co., 326 Ill.App. 564 , 63 N.E.2d 264 ; Paul v. Stanley, 168 Wash. 371 , 12 P.2d 401 ; Fitchette v. Taylor, 191 Minn. 582 , 254 N.W. 910 , 94 A.L.R. 356 ; Unger v. Landlords Management Corp., 114 N.J.Eq. 68, 168 A. 229 ; 1 Hobson v. Kentucky Trust Co., 303 Ky. 493 , 197 S.W.2d 454 ; Johnson v. Purcell, 225 Iowa 1265 , 282 N.W. 741 . These courts, for different reasons, have said that a lawyer does have such a right or franchise as will permit him to enjoin one engaging in the unlawful practice of the law. They have all stated that the rights of a lawyer in such a case are quite different from those of any other profession. These opinions are entitled to respect. They should not be rejected in an informal manner.
For these reasons, I am of the opinion that the declaration in the majority opinion to the effect that an individual lawyer has no right, property or otherwise, which will warrant him in asking for an injunction against one engaged in an unauthorized practice of the law is entirely unnecessary and unwarranted.
. This case has apparently been overruled in this respect by the Supreme Court of New Jersey in the recent case of New Jersey State Bar Ass’n v. Northern New Jersey Mortgage Associates, 22 N.J. 184.