Supplemental Appendix — Cramer v. State Bar of Michigan

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116 399 Micu 116 [Dec

STATE BAR OF MICHIGAN v CRAMER

Docket No. 56413. Argued November 6, 1975 (Calendar No. 11).—

Decided December 30, 1976.

The State Bar of Michigan filed a complaint against Harold

Graham, Michael Gordon and Virginia Cramer alleging that

the defendants were engaged in the unauthorized practice of

law by their “Do-It-Yourself Divorce Plan” kit. The defendants

allegedly advertised that persons who used the divorce kit

could obtain a divorce, prepared pleadings for filing with

courts, gave and sold legal advice, and advised customers on

filling out pleadings and court procedure. The Wayne Circuit

Court, John D. O’Hair, J., entered a judgment permanently

enjoining the defendants from certain activities pertaining to

advising persons about divorce. Defendant Cramer was subse-

quently adjudged guilty of contempt for violation of the injunc-

tion on several occasions. The Court of Appeals, Bashara, P. J.,

and Danhof and Churchill. JJ., affirmed (Docket No. 19075).

The defendant appeals. Held:

1. All orders and judgments of courts must be complied with

promptly Persons who make private determinations of the law

and refuse to obey an order generally risk criminal contempt

even if the order is ultimately ruled incorrect. Violation of an

invalid court order may nonetheless be treated as contempt,

except where the court lacks jurisdiction to issue the order or,

perhaps, where the defendant has no opportunity to contest the

validity of the order.

2. The difference between civil and criminal contempt is that

the former seeks to change the respondent's conduct by threat-

ening him with a penalty if he does not change it, while the

latter seeks to punish him for past misdoings which affront the

dignity of the court; criminal contempt being for past miscon-

Rerexences ror Points in Heapnores

{1, 2) 17 Am Jur 2d, Contempt § 34

(3) 17 Am Jur 2d, Contempt §§ 42, 47.

(4) 17 Am Jur 2d, Contempt §§ 4, 5

[5] 17 Am Jur 2d, Contempt § 5

(6-19) 7 Am Jur 2d, Attorneys at Law §§ 73-90.

What amounts to practice of law 151 ALR 781.

1976) State Bar v CRAMER 117

duct, there is no way for one so convicted to purge himself of

the contempt. ,

3. There is no doubt that the defendant was found guilty of

civil contempt April 23, 1973 when the circuit court told her

that she would be jailed until she purged herself, and released

her the following day after she promised to obey the order.

That finding is, therefore, affirmed. The other convictions,

however, despite the characterizations by the trial judge, were

of criminal contempt; the jail sentences and fines were to

punish the defendant for past conduct. Because the proceedings

were conducted as civil proceedings but led to punishment for

criminal contempt. the convictions are reversed

4. Any attempt to formulate a lasting, all-encompassing

definition of practice of law is doomed to failure for the reason

that under our system of jurisprudence such practice must

necessarily change with the everchanging business and social

order. No essential definition of the practice of law has been

articulated and the descriptive definitions which have been

agreed upon from time to time have only permitted disposition

of specific questions. Laymen are excluded from “law practice”

solely to protect the public. This purpose of public protection

must dictate the construction put on the term “unauthorized

practice of law”. The power of the state to regulate the practice

of law, however, cannot be exercised so as to abrogate rights of

individuals secured by the Constitution

5. The advertisement and distribution to the general public of

forms and documents used to obtain a divorce together with

any related textua! instructions does not constitute the practice

of law. But the cefendant goes well beyond merely making

available those materials necessary to effect a divorce. She

advertises “professional guidance” to her “clienus”. A personal

conference is arranged between the defendant and her client to

discuss the divorce The defendant prepares the documents

incident to the divorce proceedings, occasionally files the com-

pleted forms in court, and personally advises cients as to the

proper testimony.

6. To the extent that the defendant provides personal advice

peculiar to the dissolution of a specific marriage. she is engaged

in the “unauthorized practice of law”.

Affirmed in part. reversed in part.

Justice Williams concurred with the per curiam opinion and

agreed with the necessity for skilled profeasiona! assistance in

legal matters, but wrote further that this case w only a symp

tom of the problem created by the failure of the legal profes

sion to see that suAcient legal services are reasocably available

399 Micx 116 [Dec

and within the means of all people. The very rich and the very

poor have access to lawyers, but it is generally admitted that

middle-income groups do not have adequate legal services.

Protection of the public will be achieved only by action to make

skilled professional services available to those who have reason-

able need of them. Justice Levin joined Justice Williams as to

his remarks concerning the availability of legal services.

Chief Justice Kavanagh, with Justice Levin concurring, con-

curred in vacating the defendant's convictions of criminal

contempt and affirming the judgment of civil contempt._He also _

defe is not in tho

ractice of la sell forms or “divorce kits”. He

id not, r, agree that defendant should be prohibited

from assisting individuals in the preparation of these forms or

rendering other advice peculiar to the dissolution of a specific

marriage, because the prohibition is counterproductive. Her

customers will go to court less prepared than they are at

present. Many people who seek divorces cannot afford, or think

they cannot afford, a lawyer, are not eligible, or cannot wait,

for legal aid services. The defendant provides an alternative for

them, that of processing their own divorces

Justice Levin also wrote separately to emphasize that:

1. Preparation and filing of standardized papers to obtain an

uncontested no-fault divorce where there are no igaues of child

custody, child support, alimony or property settlement does not

require the professional judgment of a lawyer, and therefore

e the practice of law.

2. While it is unclear where the line should be drawn

between those cases where a lay advocate may readily assist

persons who wish to exercise their constitutional right of self-

representation and cases where the client should be encouraged

to obtain the services of a lawyer, it has not been demonstrated

that once the relevant criteria are determined and the stan-

dard established, case-by-case application requires oversight by

a member of the legal profession.

3. The orgenized bar, which has not made available the

minimal counseling which would enable a person to exercise

his right of self-representation, can heard to say that this

Service which t does not provide ia the practice of lew. of Taw.

4

Legislature should address the issue of securing to the

people their constitutional right of self-representation as part

of the larger problem of providing legal services for persons of

moderate circumstances.

56 Mich App 176; 223 NW2d 713 (1974) affirmed in part,

reversed in part.

1976] State Bar v CRAMER 119

Opinion oF THE Court

1. Contempt—Courts. | 4

All orders and judgments of courts must be complied with tu»

promptly; persons who make private determinations of the law (7

and refuse to obey an order generally risk criminal contempt :

even if the order is ultimately ruled incorrect. zi

2. Contempr—Courts.

The orderly and expeditious administration of justice by the

courts requires that an order issued by a court with jurisdiction

over the subject matter and person must be obeyed by the

parties until it is reversed by orderly and proper proceedings.

3. Contempt—Courts—INVALID OrpER.

Violation of an invalid court order may nonetheless be treated as 3 a

contempt, except where the court lacks jurisdiction to issue the q

order or, perhaps, where the defendant has no opportunity to

contest the validity of the order.

4. Contempt—Civit Contempt—CRriMINAL CONTEMPT.

The difference between civil and criminal contempt is that the of wy

former seeks to change the respondent's conduct by threatening q

him with a penalty if he does not change it, while the latter ! Lg

seeks to punish him for past misdoings which affront the

dignity of the court; criminal contempt being for past miscon-

duct, there is no way for one so convicted to purge himself of

the contempt.

5. Contempt—Civit Contempt.

A defendant was found to be guilty of civil contempt for disobey- €

{

ing an injunction where the trial court told the defendant she 4 yw

would be jailed until she purged herself, and released her the |

following day after she promised to obey the order; the defend-

ant carried the keys of the prison in her own pocket, and the

action is essentially civil.

6. Atrorngy ano Cugent—Unautnonizep Pracrice. b

Laymen are excluded from “law practice” solely to protect the

public; this purpose of public protection must dictate the con- ]

struction put on the term “unauthorized practice of law” (MCL ji"

600.916; MSA 27A.916).

7. AtTorney ano Cugnt—Uwnautnonrizen Paacnice—ConstiruTIONAL 0

Law

The power of the state to regulate the practice of law cannot be ry

120 399 Micu 116 [Dec

exercised so ar to abrogate rights of individuals secured by the

Constitution.

8. Arrorney AnD Cugnt—UNauTnorizep Pracnice—Drvorce—Ap-

VERTISEMENT.

The advertisement and distribution to the general public of forms

and documents used to obtain a divorce together with any

related textual instructions does not constitute the practice of

law (MCL 600.916; MSA 27A.916).

9. Arromngy anp-CugntT—UNauTHorizep Pracrice—Drvorce—Pro-

FESSIONAL GUIDANCE.

A defendant who advertises “professional guidance” to “clients”

in obtaining a divorce; arranges a personal conference with the

client to discuss the divorce; prepares the complaint, summons,

and all documents incident to the divorce; occasionally files the

completed forms with the court; and personally advises clients

as to the proper testimony is engaged in the practice of law

(MCL 600.916; MSA 27A.916).

10. AtTorney anv CLignt—UNaAuTHoRizep Practice—PRoOressioNaL

GulpDance.

The public has a right to be assured that the interests involved in

divorce matters, such as child custody, contract and property

rights, inheritance, separate property, and support, are prop-

erly represented by members of the State Bar; to the extent

_ ° that a non-lawyer defendant provides personal advice peculiar

to the dissolution of a specific marriage, she is engaged in the

unauthorized practice of law (MCL 600.916; MSA 27A.916).

CoNcurrino Opinion

Wituiams and Levin, JJ.

11. Atrorngy ano Cuznt—Unavutnorizep Pracrice—AVaAILaBILITY

or Lecar Seavices.

The failure of the legal profession to see that sufficient skilled

legal services are reasonably available and within the means of

all people creates a vacuum which will be filled by persons

engaged in the unauthorized practice of law.

12. Arroaney ano Cugnt—Unautnorizep Pracrice—AvaiLaBiLity

or Lecat Seavices.

lt is smid that the very rich and the very poor have access to

lawyers, but it is generally admitted that middle-income groups

ae er re rte

2) 1976] State Bar v CRAMER 121

do not have adequate legal services; protection of the public

from the unprofessional practice of law will not be achieved by

, court orders or prison cells, but by prompt, positive, vigorous

and imaginative action to make skilled professional services

available to those who have reasonable need of them.

ConcuRRING IN Part AND DisseNnTING IN Part

Kavanaou, C. J., and Levin, J.

13. Arroangy anv Cuent—Unautuorizep Pracrice—Divorce—

PREPARATION OF Forms.

A defendant who provided legal forms and advice on their prepa-

ration to persons seeking an uncontested, “no-fault” divorce

was not engaged in the unauthorized practice of law (MCL

552.6, 600.916; MSA 25.86, 27A.916).

14. ATTrorNey ano Cuent—UNautnorizep Practrice—Divorce.

.- Prohibiting a defendant from assisting individuals in the prepara-

tion of legal forms or rendering other advice peculiar to the

dissolution of a specific marriage in an uncontested, "no-fault"

divorce proceeding as the unauthorized practice of law is un-

sound and counterproductive (MCL 552.6, 600.916; MSA 25.86;

27A.916).

Separate Opinion

Levin, J.

15. Attorney ano Cugnt—UnNautnorizep Pracrice—Divorce.

Preparation and filing of standardized papers to obtain an uncon-

tested, “no-fault” divorce where there are no issues of child

custody, child support, alimony or property settlement does not

require the professional judgment of a lawyer, and therefore

does not constitute the practice of law.

16. Atrorngy anv Cugnt—Unautnorizep Pracrice—Sevr-Repae-

SENTATION— PROFESSIONAL GUIDANCE.

While it is unclear where the line should be drawn between those

cases where a lay advocate may readily assist persons who wish

to exercise their constitutional right of self-representation and

cases where the client should be encouraged to obtain -the

services of a lawyer, it has not been demonstrated that once the

relevant criteria are determined and the standard established,

case-by-case application requires oversight by a member of the

legal profession.

122 399 Micu 116 [Dec

Opinion oF THE Court

17; ATtoangy ann Cugnt—Unautnonizen Paacnice—Sevy-Repas-

SENTATION—PROFEssiONAL GUIDANCE—AVAILABILITY OF LEGAL

Services.

The organized bar, which, has not made available the counseling

which would enable a person to exercise his right of self-repre-

sentation, cannot be heard to say that this service which it does

not provide is the practice of law.

18. Atroraney anv Cuent—Sevr-RepresentaTION—AVAILABILITY OF

Leoat Services.

The Legislature should address the issue of securing to the people

their constitutional right of self-representation as part of the

larger problem of providing legal services for persons of moder-

ate circumstances.

19. ATTORNEY AND CLigENT—UNAUTHORIZED Practice—PROFESssIONAL

GUIDANCE

The practice of law, functionally, relates to the rendition of

services for others that call for the professional judgment of a

lawyer; the essence of the professional judgment of a lawyer is

Ais educated ability to relate the general body and philosophy

of law to a specific legal problem of a client.

W. Gerald Warren for plaintiff.

Virginia Cramer in propria persona.

Amici Curiae:

William T. Kerr for Michigan Clinical Law Pro-

gram.

Robert L. Reed, Alan W. Houseman and William |

Burnham for Michigan Legal Services.

Per Curiam. The history of this case is convo-

luted and confusing. The business of defendant

Cramer which is the source of this controversy is

described by Judge O’Hair in his findings following

a hearing on December 18, 1972.

“In May, 1972, defendants Graham and Gordon

4

1976} State Bar v CRAMER 123

Oprnion oF THe Court

formed a partnership to conduct a business that con-

sisted of the sale of so-called ‘divorce kits.’ Later in

August they expanded their firm to include the defend-

ant Cramer as a partner. Their business is known as

Gordon-Graham & Cramer Associates, and its offices are

located at 15800 W. McNichols, Detroit, Michigan.

“Defendants, who admittedly are not attorneys, have

solicited over 400 customers or clients by advertising

‘DIVORCE’ in daily newspapers having a general circu-

-lation throughout the State of Michigan. A ‘Do-It-Your-

self Divorce Plan,’ as defendants characterize it, is

made available to members of the public for a fee of

$75 or $100, plus $30 to $50 costs.

“When a person is interested in purchasing defend-

ants’ ‘Do-It-Yourseif Divorce Plan,’ he has a conference

at the defendants’ place of business. At the conference

the client is advised that defendants are not lawyers,

but that they do provide the forms and service which

enables one to obtain his own legal divorce. A ‘Ques

tionnaire-Agreement’ is completed before the termina-

tion of the conference.

“From the information set forth in the client’s com-

pleted questionnaire, the complaint and summons are

prepared by the defendants. Thereafter, all documents

incident to the divorce proceedings are prepated for the

client’s or the court’s signature. The completed docu-

ments are filed with the court and served upon the

adverse party, if necessary, by the defendants or by the

clients pursuant to the defendants’ instructions. Clients

are not given a so-called kit of divorce forms, but each

form is completed and executed at defendants’ office as

= at each appropriate step of the divorce proceed-

“Before the evidentiary hearing for the entry of

judgment, the defendants provide their clients with a

statement setting forth suggested testimony to be of-

fered by the client to the court and a list of suggested

questions to be asked by the client of a corrobora

witness. '

“At all stages of the divorce proceedings the defend-

ants, expressly or inferentially, advise the clients as to

the legal procedures invelvell provide all legal forms

incident to the divorce proceedings, provide the service

124 399 Micu 116 [Dec

Opinion oF Tue Court

to complete the aforesaid forms and provide optional

assistance in filing and serving all documents.

“Defendants state that at present they are primarily

interested in making their ‘Do-It-Yourself Divorce Plan’

available to persons who anticipate divorce proceedings

that are uncontested and do not involve questions rela-

tive to children, alimony or marital property. In the

past they have not been so selective.” (Footnotes omit-

ted.)

The State Bar of Michigan, alleging that it

constituted the unauthorized practice of law,

sought to enjoin defendant from engaging in this

business. On January 5, 1973 Judge O’Hair of the

Wayne Circuit Court entered an order perma-

nently enjoining the defendants from:

“(1) Holding themselves out to the public as qualified

to render advice and service to persons interested in

obtaining a divorce in the courts of Michigan;

"(2) Rendering counsel and service to persons seeking

to dissolve a marital relationship by obtaining a judg-

a of divorce in the courts of the State of Michigan;

and,

(3) Furnishing or offering to furnish kits, forms or

documents with assistance in their completion or execu-

tion, to persons seeking to dissolve a marital relation-

ship by obtaining a judgment of divorce in the courts of

the State of Michigan.”

The defendant continued in the business despite

several orders finding her in contempt. We finally

agreed to consider the matter and at oral argu-

ment the defendant frankly admitted she intended

to keep on with it.

I

May defendant constitutionally be enjoined from

providing divorce forms, assisting in the comple-

1976] State Bar v CRAMER 125

Opinion or THE Court

tion of these forms, and counseling persons seek-

ing a no-fault divorce in Michigan on the grounds

that she was engaged in the unauthorized practice

of law, contrary to MCLA 600.916; MSA 27A.916?

Plaintiff asserts that whether or not defendant

was engaged in the unauthorized practice of law,

she is guilty of contempt for violating the injunc-

tion of the Wayne Circuit Court. It is a general

rule that

“all orders and judgments of courts must be complied

with promptly. If a person to whom a court directs an

order believes that order is incorrect the remedy is to

appeal, but absent a stay, to comply promptly with the

order pending appea!. Persons who make private deter-

minations of the law and refuse to obey an order

generally risk criminal contempt even if the order is

ultimately ruled incorrect. Howat v Kansas, 258 US

181, 189-190 [42 S Ct 277; 66 L Ed 550) (1922); Worden

v Searls, 121 US 14 (7 S Ct 814; 30 L Ed 853] (1887).

The orderly and expeditious administration of justice by

the courts requires that ‘an order issued by a court with

jurisdiction over the subject matter and person must be

obeyed by the parties until it is reverted Uy orderly and

proper proceedings.’ United States v [United] Mine

Workers, 330 US 258, 293 (67 S Ct 677; 91 L Ed 884)

(1947).” Maness v Meyers, 419 US 449, 458-459; 95 S Ct

584; 42 L Ed 2d 574 (1975).

“{I]Jn one important respect the violation of a court

order generally is treated differently from the violation

of a criminal statute: If the statute is invalid, the

invalidity will require the defendant's acquittal. If a

court order is invalid, its violation may nonetheless be

treated as contempt, e the court lacks juris-

dicti issu or, perhaps, where end-

ant has no opportunity to contest the validity of the

order.” Kuhns, Limiting the Criminal Contempt Power:

New Roles For the Prosecutor and the Grand Jury, 73

Mich L Rev 484, 504 (1975).

The reasons for this principle were set forth by

126 399 Micu 116 [Dec ,

Ortnion oF THe Court f

the United States Supreme Court in Walker v City

of Birmingham, 388 US 307, 320-321; 87 S Ct '

1824; 18 L Ed 2d 1210 (1967), upholding convic- |"

tions for criminal contempt of civil rights march- -

ers who were in violation of an injunction: “[{I]n

the fair administration of justice no man can be

judge in his own case, however exalted his station,

however righteous his motives * * * . [Rjespect F

for judicial process is a small price to pay for the

civilizing hand of law, which alone can give abid-

ing meaning to constitutional freedom.”

In the judgment and injunctive order of January

5, 1973, defendant was enjoined from engaging in

the unauthorized practice of law, and specific in-

stances of prohibited conduct were listed. '

There is no doubt that defendant continued to

violate the January 5 order, and, indeed is still

doing so. Judge O’Hair adjudged defendant “guilty

of civil contempt” on April 23, 1973, and ordered

her jailed until she purged herself “by demonstrat-

ing that she will discharge her statutory and

judicially imposed duty to cease permanently from

erigaging in the conduct proscribed by the court’s

judgment and injunctive order of January 5,

1973”.

Defendant was jailed April 30, 1973, and on May

1, 1973 appeared before Judge O’Hair and made

certain representations to purge herself of con-

tempt, and was released.

On August 6, 1973, Judge O’Hair found that

defendant “has violated her purgation of contempt

and has broken her promise given in connection

with said purgation of contempt to this Court on

May 1, 1973 wherein she promised to abstain from

the proscribed activities”, and again adjudged her

in contempt and sentenced her to five days in jail

and assessed a fine and costs.

; a

1976) Strate Bar v CRAMER 127

Opinion oF THe Court

On December 19, 1973, Judge O’Hair again ad-

judged defendant guilty of contempt and sentenced

*her to five days in jail.

On October 15, 1974, Judge O’Hair found: “De-

fendant’s * * * conduct from February 14, 1974

through June 27, 1974, has been in violation of the

court’s judgment and injunctive order of January

_ 6, 1973. The contemptuous conduct has been will-

ful, flagrant, and in absolute defiance of the

Wayne County Circuit Court.” Defendant was ad-

judged “guilty of civil contempt * * * as a result

of her willful conduct * * * [and] as punishment

* * * is to be sentenced to the Wayne County Jail

for a period of 30 days, and, in addition thereto, is

fined $250.”

There is disagreement over the nature of these

contempt proceedings, ie., whether defendant was

found guilty of civil or criminal contempt.

“Essentially, the difference between civil and crimi-

nal contempt is that the former seeks to change respon-

dent's conduct by threatening him with a penalty if he

does not change it, while the latter seeks to punish him

for past misdoings which affront the dignity of the

court. Criminal contempt being for past misconduct,

there is no way for one so convicted to purge himself of

the contempt.” Jaikins v Jaikins, 12 Mich App 115, 120;

162 NW2d 325 (1968).

There is no doubt that the April 23, 1973 finding

was that defendant was guilty of civil contempt.

Judge O’Hair specifically told the defendant that

she would be jailed until she purged herself. She

therefore was able to “carry the ‘keys of [the]

prison in (her) own pocket’ [and] the action is

essentially civil”. People v Goodman, 17 Mich App

175, 177; 169 NW2d 120 (1969). In fact, the follow-

ing day Judge O’Hair released her after she prom-

—s - =

128 399 Micn 116 [Dec

Orimiow oF THe Court

ised to obey his order. We affirm that finding. The

other convictions however, on December 19, 1973

and October 15, 1974, despite the characterizations

by the trial judge, were for crimina/ contempt. The

jail sentences and fines were to punish defendant

for past conduct.

“If [contempt citation] is to punish the offender for

his disobedience or contumacious behavior, then it is

criminal contempt. If, however, the purpose is to com-

pel obedience to an order of the court, then it is civil

contempt.” Spalter v Wayne Circuit Judge, 35 Mich

App 156, 160-161; 192 NW2d 347 (1971).

As we said in People v Johns, 384 Mich 325, 333;

183 NW2d 216 (1971):

“When the hearing was instituted by a show cause

order and placed on the civil docket, when the proceed-

ings lacked any semblance of a criminal trial and when

the sentence had elements of both civil and criminal

contempt the defendant could have reasonably expected

that he indeed was being held in civil contempt.

“We therefore hold that under the procedure followed

‘here, the defendant could not have been found guilty of

a aS contempt and his sentence for such must be

vacated.”

Judge O’Hair did not make these sentences

“conditional”. He did not tell defendant she would

be able to purge herself of the contempt as he did .

during the April 23 proceeding. This sentence was

“one of punishment for behavior already commit-

ted in violation of the decree, and the contempt

action, being unconditional as to result, is crimi-

nal”. People v Goodman, supra, at 178.

Accordingly, we hold defendant's criminal con-

tempt convictions and resulting sentences must be

vacated.

1976] Strate Bar v CRAMER 129

Optwiow oF THe Court

II

Does defendant’s conduct constitute the unau-

thorized practice of law?

MCLA 600.916; MSA 27A.916 provides:

“It is unlawful for any person to practice law, or to

engage in the law business, or in any manner whatso-

ever to lead others to believe that he is authorized to

practice law or to engage in the law business, or in any

manner whatsoever to represent or designate himself as

an attorney and counselor, attorney at law, or lawyer,

unless the person so doing is regularly licensed and

authorized to practice law in this state. Any person who

violates the provisions of this section is guilty of con-

tempt of the supreme court and of the circuit court of

the county in which the violation occurred, and upon

conviction is punishable as provided by law. This sec-

tion does not apply to a person who is duly licensed and

authorized to practice law in another state while tempo-

rarily in this state and engaged in a particular matter.”

Plaintiff contends that defendant has been in

violation of this statute since 1972 as a result of

selling legal forms and providing advice and coun-

sel necessary to obtaining a divorce.

Defendant responds that all persons have a

constitutional right to represent themselves in

Michigan courts, and that all she is doing is assist-

ing them in exercising that right. She also con-

tends that the unauthorized practice statute is

unconstitutionally vague, that her actions do not

constitute the practice of law and that the statute

and injunctive order deprive her of her first

amendment rights. Amici Curiae, Michigan Clini-

cal Law Program and Michigan Legal Services,

agree with defendant's contentions, and also argue

that the statute is overbroad, infringes on the

right to privacy, and denies equal protection of the

law.

130 399 Micu 116 [Dec

Opinion or THe Court

To obtain a perspective on the particular prob-

lems presented by this case, it is helpful to recall

in outline the historical development of the “prac-

tice of law”.

“The first lawyers were personal friends of the liti-

gant, brought into court by him so that he might ‘take

“counsel” with them’ before pleading. 1 Pollack &

Maitland, History of English Law (2d ed 1909) p 211.

Similarly, the first ‘attorneys’ were personal agents,

often lacking any professional training, who were ap-

pointed by those litigants who had secured royal per-

mission to carry on their affairs through a representa-

tive, rather than personally. /d., at 212-213." Faretta v

California, 422 US 806, fn 16; 95 S Ct 2525; 45 L Ed 2d

562 (1975).

In England, the “practice of law” began to de-

velop in 1178 when Henry II created a central

court and appointed five clerks to serve as justices

in litigation. By 1292, Edward I was forced to limit

the number of practitioners due to the increasing

number of unskilled persons practicing around the

king’s courts. Thus, the Court of Common Pleas

was vested with the power to appoint attorneys

and limit the practice of law to such persons.

The bar _arcee, therefore, from a_need to protect

the public from unskilled persons practicing law.

Pound traces four stages in the colonial develop-

ment of the legal profession: (1) the attempt to

function without lawyers; (2) the i ible fill-

ing out of writs by court officials; @) the era of

mitted practitioners in permanent judicial orga-

nizations; and (4) the era of trained lawyers and

development of the organized bar. R Pound, The

Lawyer From Antiquity To Modern Times (West,

1953) pp 135-163.

1976] Strate Bar v CRAMER 131

Optnion OF THE Court

The development of the organized bar was spo-

radic until the early 1900’s. In 1933 the American

Bar Association appointed a Committee on Unau-

thorized Practice.

“Coexistent with the drive to prohibit unauthorized

practice of law, there began a revival of the professional

nature of the practice of law. Emphasis was increas-

ingly placed upon the responsibilities of the legal pro-

fession to the administration of justice in a spirit of

public service with the earning of a livelihood deemed

‘incidental.’ Justice Cardozo observed: ‘[One is) received

into that ancient fellowship [the bar] for something

more than private gain. [The lawyer becomes] an officer

of the court, and, like the court itself, an instrument or

agency to advance the ends of justice.’ As the concept of

public service returned to the legal profession, the

courts resumed the role begun in 1292, assuming the

responsibility of determining qualifications and impos-

ing discipline upon those members of the profession

who violated this spirit of public service as embodied in

the Canons of Ethics. As public service became para-

mount to the profession, efforts to combat the unautho-

rized practice of law, both within and without the bar,

became imperative. In the words of Samuel Tilden,

speaking to a group which that night became the

Association of the Bar of New York City in an effort to

correct the appalling conditions which prevailed

throughout the legal system, ‘T]he Bar, if it is to

continue to exist—if it would restore itself to the dig-

nity and honor which it once possessed—must be bold

in defense, and, if need be, bold in aggression.’ In

attempting to cope with the continuing problem of the

unauthorized practice of law, the bar sought to inform

. the public of the dangers inherent in condoning such

practice and to develop coercive remedies to alleviate

the problem.” Comment, Unauthorized Practice of Law

—The Full Service Bank That Was: Bank Cashier En-

joined From Preparing Real Estate Mortgages to Secure

ae 61 Ky L J 300, 303-304 (1972). (Footnotes

omitted.)

as moments, Dee

Michigan, as all other states, regulates the prac-

tice of law by statute.

1915 PA 314, ch I, §61 did not prohibit the

“unauthorized practice of law”, but rather prohib-

ited any person not licensed from “represent{ing]

himself as an attorney at law * * * ”.

1919 PA 314, § 61, amended the prior statute by

adding that “[i}t shall be unlawful for any person

who is not a regularly licensed attorney and coun-

selor of this State * * * to practice law or to

engage in the law business * * * ”.

Prior to 1931 PA 51, violation of this statute was

a misdemeanor. 1931 PA 51 made violation pun-

ishable as contempt of court.

This statutory scheme recognizes this inherent

authority of the courts to control participants in

the courts of the state. E.g., Ayres v Hadaway, 303

Mich 589; 6 NW2d 905 (1942).

The Michigan statute also provides that “[n]o

person is authorized to practice law in this state

unless he complies with the requirements of the

supreme court with regard thereto”. MCLA

600.901; MSA 27A.901.

These requirements include educational, charac-

ter and fitness, and examination components.

MCLA 600.934, 600.937, 600.940; MSA 27A.934,

27A.937, 27A.940. Additionally, licensed attorneys

are subject to discipline, including loss of license,

for unprofessional conduct. MCLA 600.904; MSA

27A.904.

While all those not licensed to practice law are

prohibited from doing so, the Legislature has not

seen fit to define what constitutes the “practice of

law”, and, accordingly, “[t]he formidable task of

constructing a definition of the practice of law has

largely been left to the judiciary”. Comment, Lay

=

1976} STATE BAR v CRAMER 133

Opinion OF THE CouRT

Divorce Firms and the Unauthorized Practice of

Law, 6 J L Reform 423, 426 (1973).

We are still of the mind that any attempt to

formulate a lasting, all-encompassing definition of

“practice of law” is doomed to failure “for the

reason that under our system of jurisprudence

such practice must necessarily change with the

everchanging business and social order’. Grand

Rapids Bar Association v Denkema, 290 Mich 56,

64; 287 NW 377 (1939).

No essential definition of the practice of law has

been articulated and the descriptive definitions

which have been agreed upon from time to time

have only permitted disposition of specific ques-

tions. These definitions have been relatively help-

ful in counseling conduct but have provided no

sure guide for the public’s protection.

A broad definition of the “practice of law” em-

braces virtually all commercial areas of human

endeavor. This, of course, will not do.

“It cannot be urged, with reason, that a lawyer must

preside over every transaction where written legal

forms must be selected and used by an agent for one of

the parties. Such a restriction would so paralyze busi-

ness activities that very few transactions could be ex-

peditiously consummated.” State ex re/ Indiana State

Bar Association v Indiana Real Estate Association, 244

Ind 214, 221-222; 191 NE2d 711 (1963).

The result of this inability to fashion a definition

of “practice of law” to fit every situation “has been

a line of decisions consistent only in their incon-

sistency as the courts have sought to accommodate

the need for public protection through restricting

the practice of law to members of the bar with the

economic and practical realities of modern socie-

ty”. Comment, Unauthorized Practice of Law—The

134 399 Micu 116 [Dec

° Opinion OF THE Court

Full Service Bank That Was: Bank Cashier En-

Joined From Preparing Real Estate Mortgages to

Secure Bank Loans, 61 Ky L J 300, 311 (1972).

“Laymen are excluded from law practice, what-

ever law practice may be, solely to protect the

public.” Oregon State Bar v Security Escrows, Inc,

233 Or 80, 87; 377 P2d 334, 338 (1962).

It is this purpose of public protection which

must dictate the construction we put on the term

“unauthorized practice of law”.

There is no doubt that this unauthorized prac-

tice statute affects constitutional rights. It cer-

tainly affects the first amendment rights of defend-

ant; it affects the right to privacy inherent in the

marital relationship. Roe v Wade, 410 US 113,

152-153; 93 S Ct 705; 35 L Ed 2d 147 (1973),

Boddie v Connecticut, 401 US 371; 91 S Ct 780; 28

L Ed 2d 113 (1971). It affects the litigants’ right to

self-representation. Const 1963, art 1, § 13.

Of course, the fact that the statute affects consti-

tutional rights does not make it invalid. However,

where’ a statute does impinge on constitutional

rights, it must be “narrowly drawn to express only

the legitimate state interests at stake”. Roe v

Wade, 410 US 113, 155; 93 S Ct 705; 35 L Ed 2d

147 (1973).

“The power of the states to control the practice

of law cannot be exercised so as to abrogate feder-

ally protected rights.” Johnson v Avery, 393 US

483, 490, fn 11; 89 S Ct 747; 21 L Ed 2d 718 (1969).

“{Ijn regulating the practice of law a state can-

not ignore the rights of individuals secured by the

constitution.” Brotherhood of Railroad Trainmen v

Virginia ex rel Virginia State Bar, 377 US 1, 6; 84

S Ct 1113; 12 L Ed 2d 89 (1964). With these

principles in mind, we must consider the unautho-

1976] STATE BAR v CRAMER 135

7 Opinion oF THE Court

rized practice statute in light of the divorce laws of

Michigan and defendant’s activities.

"Effective January 1, 1972, this state adopted a

no-fault divorce law. MCLA 552.6; MSA 25.86. We

agree with one suggestion that this revision in the

divorce law was made in the belief that “when the

marriage relationship has terminated, granting of

the divorce should flow as an inalienable legal

right”. Honigman, What “No-Fault” Means to Di-

vorce, 51 Mich St B J 16, 17 (1972). Because

divorce procedures in Michigan are now limited to

pleading on statutory grounds and a response

either admitting or denying the assertions, divorce

procedures have been simplified considerably.

Downs, Family Law, 1972 Ann Survey of Michigan

Law, 19 Wayne Law Rev 479, 498 (1973). The

question becomes whether the apparent relative

ease with which a divorce can be obtained should

enable persons untrained in the law to purport to

provide individualized counsel and professional

guidance to one seeking a divorce.

There are no Michigan cases which have ad-

dressed this issue. However, we are mindful of the

opinion of jurisdictions which have considered

questions similar to those now presented which

have held such practices to be the unauthorized

practice of law. In The Florida Bar v Stupica, 300

So 2d 683 (Fla, 1974), the mere furnishing of

“divorce kits” to the general public was held to

constitute the unauthorized practice of law. Con-

tained in these kits were forms which included

petition for dissolution, answer, summons, sworn

statement of constructive service, default motions,

joint stipulations for motion for final hearing,.

orders setting final hearing, and final judgment of

dissolution of marriage. Accompanying these forms

were several pages of explanatory data concerning

136 399 Micu 116 [Dec

Opinion oF THe Court

the forms as well as specific information and ad-

vice regarding the use and application of the forms

so as to comply with the laws governing the disso-

lution of marriage. This information was viewed as

providing direct legal advice without benefit of

legal training and interpretive statutory annota-

tions which would minimize the possibility that

the interests of the person seeking assistance on

divorce matters were not properly represented.

See, also, The Florida Bar v American Legal &

Business Forms, Inc, 274 So 2d 225 (Fla, 1973).

Concern for the quality of legal representation

available to persons seeking a divorce was also

expressed in Oregon State Bar v Gilchrist, 272 Or

552, 563; 538 P2d 913 (1975). The Court did not

consider the advertisement and sale.of do-it-your-

self divorce kits containing the necessary forms

together with an explanatory manual as constitut-

ing the unauthorized practice of law. However, the

Court specifically distinguished this course of con-

duct from personal contact between defendants

and their “customers” in the nature of “consulta-

tion, explanation, recommendation or advice or

other assistance in selecting particular forms, in

filling out any part of the form, or suggesting or

advising how the forms should be used in solving

the particular customer’s marital problems”. The

latter was enjoined because the relationship which

developed beiween the parties was tantamount to

that of attorney and client.

We also believe this to be a significant distinc-

tion. The advertisement and distribution to the

general public of forms and documents utilized to

obtain a divorce together with any related textual

instructions does not constitute the practice of law.

There can be no serious challenge raised to this or

any enterprise which is otherwise in compliance

1976) State Bar v CRAMER 137

Opinion oF THe Court

with those regulations applicable to products

placed in the stream of commerce. Were defendant

“té limit her activity to providing forms and in-

structions regarding divorce, her undertaking

would be analogous to that set forth in New York

County Lawyers Ass’n v Dacey, 21 NY2d 694; 234

NE2d 459 (1967), a case involving the publication

and distribution of the book, How to Avoid Pro-

bate. The Court adopted the dissenting opinion

below which stated:

“There [was] no personal contact or relationship with

a particular individual. Nor does there exist that rela-

tion of confidence and trust so necessary to the status of

attorney and client. This is the essential of legal prac-

tice—the representation and the advising of a particu-

lar person in a particular situation.

“At most the book assumes to offer general advice on

common problems, anc does not purport to give per-

sone! advice on a specific problem peculiar to a desig-

nated or readily identified person.”” 28 App Div 2d 161,

171, 174; 283 NYS2d 984 (1967).

But defendant goes well beyond merely making

available those materials necessary to effect a

legal divorce. She advertises “professional guid-

ance” to her “clients’”.' A personal conference is

arranged between defencant and her client to

discuss the divorce. t and summons

gre prepared by defendant. Once comp

documents incident to the divorce proceeding:

prep j : ; '

Vetenc ‘ e comp a forrr

yee A d, in most cases, she per >nal! advises

r clients as to the proper testimony to p ovide.

' Though defendant objects to the use of the word “client”, the

a specifically refer to those persons dealing with her as

chents

iil

138 399 MicH 116 [Dec

Opinion by Wiruiams, J.

The interests involved in divorce matters are

considerable. Those persons offering advice on le-

gal matters regarding child custody, contract and

property rights, inheritance, separate property,

and support, to name the more significant, must

possess a measure of competency and judgment to

insure proper representation. Because defendant

offe unsel in the form of professional guidance

to persons seeking to extricate themselves TORT a

— relationship, the party represented, as well

as the public in general, has a right to be assured

that these interests are properly represented by

members of the bar. To the extent that defendant

provides personal advice peculiar to the dissolution

of a specific marriage, she is engaged in the “unau-

‘thorized practice of law” contrary to MCLA

600.916; MSA 27A.916.

We affirm the finding of civil contempt of April

23, 1973 and reverse the contempt convictions of

December 19, 1973 and October 15, 1974. The

injunctive order entered January 5, 1973 by the

tria] court is affirmed.

“No costs, a public question.

COLEMAN, FITZGERALD, and LINDEMER, JJ., con-

curred.

WituaMs, J. (to concur). While I concur with the

Court and agree with the necessity of skilled pro-

fessional assistance in legal matters, neither the

Court nor the Chief Justice has directly adverted

to the root problem behind this case.

Virginia Cramer is only a symptom of the prob-

lem created by the failure of the legal profession

to see that sufficient |skilled legal services are

reasonably available and within the means of all

people. A vacuum has deen allowed to exist. If

™

1976) STaTe BAR v CRAMER 139

Opinion by Wittiams, J.

Virginia Cramer had not sought to fill it, some one

like her would have done so.

"Recently when the Office of Economic Opportu-

nity made legal services obtainable by many who

up until then had not had legal services available

to them, divorce work was found to be one of the

areas of greatest need. The Legal Aid and De-

fender Association of Detroit, for example, opens

its doors to divorces three times a year for about a

day or two, and obtains enough divorce cases in

that period of time to supply a caseload of 180-200

per attorney. Before that system was introduced,

they used to get 18 new cases a day.

It is said that the very rich and the very poor

have access to lawyers, but it is generally admitted

that middle-income groups do not have adequate

legal services. The American Bar Association and

the Michigan State Bar have displayed commenda-

ble concern about this problem in the last few

years. For example, the Michigan State Bar has

given good leadership in developing prepaid legal

service programs. However, it cannot yet be said

that the legal profession has made more than an

acceptable beginning in coming to grips with the

legal problems of middle-income groups or in ade-

quately serving the needs of the poor.

With the need for counseling and advice so

overwhelming, lawyers are going to have to make

greater efforts and exercise more ingenuity in

satisfying need, because, for every Virginia

Cramer that is brought to book a number more

will rise in her place. The courts must continue to

use traditional means to protect the public against

unprofessional practice of the law. But the fact of

the matter is that neither court orders nor prison

cells will adequately solve the root problem in this

case.

or es

140 399 Micn 116 [Dec

Opinion by Kavanaon, C. J.

The answer to the problem is boldly proclaimed

to all who can read in the Michigan State Bar

building in Lansing. There emblazoned is the fol-

lowing:

“No organization of lawyers can long survive which

has not for its primary object the protection of the

public.”

In this matter, protection of the public will not be

achieved by more of the same, but prompt, posi-

tive, vigorous and imaginative action to make

skilled professional services available to those who

have reasonable need of them. Verbum sat sa-

pienti.

Levin, J., concurred, except for the first para-

graph, with WituamMs, J. '

KAVANAGH, C. J. (concurring in part and dissent-

ing in part). 1 concur in the per curiam opinion to

the extent that it vacates defendant's convictions

for criminal contempt and affirms the judgment of

civil contempt. I agree also that defendant is not

engaged in the unauthorized practice of law when

selling legal forms or “divorce kits”. I do not agree

with the per curiam opinion, however, to the

extent that it prohibits defendant from assisting

individuals in the preparation of these forms or

rendering other advice peculiar to the dissolution

of a specific marriage. That prohibition is unsound

and counterproductive. Defendant's customers will

go to court less prepared than they are at present.

There are sound policy reasons for allowing

defendant to continue her business of assisting

those who desire her services in helping them

obtain a non-contested, no-fault divorce.

I share the conviction that one of the reasons for

1976) Strate Bar v CRAMER 141

Opinion by Kavanacn, C. J

Michigan's enactment of the no-fault divorce stat-

ute was the recognition that

“the whole divorce proceeding was not only slow, humil-

iating and costly, but often ignored the basic issue of

whether the marriage had broken down to the point

where all hope of reconciliation was gone. In addition to

noticing these defects in the old law which could be

ameliorated by a no-fault divorce law, proponents of the

reform stressed the right of parties to a marriage

beyond repair to obtain their freedom as quickly and

efficiently as possible.” Lee, Divorce Law Reform In

Michigan, 5 J L Reform 409, 416 (1972)

There is no doubt that the cost of an attorney

prevents some people from obtaining a divorce. |

am convinced that many people who seek divorces

cannot afford, or think they cannot afford, the

services of a lawyer. They separate from their

spouses without obtaining a divorce and later en-

ter into relationships which cannot be solemnized,

frequently with serious economic and other conse-

quences.

It is no answer to this problem to point to the

existence of publicly funded legal services pro

grams for those unable to afford a lawyer. Those

programs are simply unable to handle the num-

bers of persons seeking divorces in any reasonable

period of time. There are many also who would

not qualify for the services of these legal aid

agencies, but who still are unable to afford the

services of an attorney to obtain a divorce.

“Legal aid services are tremendously overburdened

and must turn away thousands of divorce clients each

year to meet their professional obligations to the clients

they do represent. * * * Furthermore, the existing legal

services are reluctant to take divorce cases, reasoning

that divorce is not a right but a privilege, and that

142 399 Micnu 116 [Dec

Opinion by Kavanaan, C. J.

other legal problems are more pressing.” Note, Justice

For The Poor? A Look At The Right To Counse/ For

Indigents In Divorce Litigation, 22 NYLS L Rev 87, 97

(1976).

As the United States Supreme Court observed in

Boddie v Connecticut, 401 US 371, 376-377; 91 S

Ct 780; 28 L Ed 2d 113 (1971):

“[Wje know of no instance where two consenting

adults may divorce and mutually liberate themselves

from the constraints of legal obligations that go with

marriage, and more fundamentally the prohibition

against remarriage, without invoking the State's judi-

cial machinery.

. 7 .

“Resort to judicial process by these plaintiffs is no

more voluntary in a realistic sense than that of a

defendant called upon to defend his interests in court.

For both groups this process is not only the paramount

dispute-settlement technique, but, in fact, the only

available one.”

In many instances, if the choice is between being

required to hire an attorney to obtain a divorce in

the only possible forum—a court—and not obtain-

ing the divorce at all, the “choice” is illusory. The

information provided by defendant enables those

persons another choice—that of assistance in proc-

essing their own divorces. It is apparent from the

number of people utilizing her services that such a

need exists.

Persons seeking a divorce who can afford a

lawyer will continue to hire one. Lawyers perform

important services beyond merely filling out and

filing the necessary papers. Lawyers experienced

in divorce work develop an expertise regarding

property settlements, child custody and alimony

1976} State Bar v CRAMER 143

Opinion by Levin, J.

awards; that expertise will continue to be pur-

chased by those who can afford it.

In Johnson v Avery, 393 US 483; 89 S Ct 747; 21

L Ed 2d 718 (1969), the United States Supreme

Court struck down a regulation forbidding inmates

from assisting other inmates in the preparation of

writs or other legal matters. The observations of

Mr. Justice Douglas, concurring, are apropos of

the case at bar:

“There are not enough lawyers to manage or super-

vise all of these affairs; and much of the basic work

done requires no special legal talent. Yet there is a

closed-shop philosophy in the legal profession that cuts

down drastically active roles for laymen. * * *

“That traditional closed-shop attitude is utterly out of

place in the modern world where claims pile high and

much of the work of tracing and pursuing them re-

quires the patience and wisdom of a layman rather

than the legal! skills of a member of the bar.

“Laymen—in and out of prison—should be allowed to

act as ‘next friend’ to any person in the preparation of

any paper or document or claim, so long as he does not

hold himself out as practicing law or as being a mem-

ber of the Bar.” 393 US at 491-492, 498.

I would vacate the injunction.

Levin, J., concurred with Kavanacu, C. J.

Levin, J. Four categories of service are provided

by Virginia Cramer' to her clients:*

| When these proceedings were commenced, Cramer was in partner-

ship with other persons The partnership and the partners were

defendants Cramer alone has persevered with this litigation In this

openion the activities of the partnership and partners are refetred to

as activities of “Cramer”

* While it @ customary to refer to those who engage the services of

las vers as “chente”. the term has a wider use

144 399 MicH 116 [Dec

Opinion by Levin, J

A. Furnishing legal forms;

B. Preparing the forms, and assisting in filing

and serving them;

C. Exercising a judgment whether, because

there are issues of child custody, child support,

alimony or property settlement, the client should

be counseled to seek the assistance of a lawyer;

and

D. Counseling the client regarding self-represen-

tation in court—what to expect and how to present

the necessary proofs.

We all agree that furnishing legal forms (“di-

vorce kits”) does not constitute the practice of law.

We disagree regarding the other services provided

by Cramer.

e urt affirms the permanent injunction,

entered by the circuit judge, barring Cramer from

providing advice, counseling and services to per-

sons seeking to o —_—

have signed the Chief Justice’s opinion on which

expresses our view that providing these services

_ Should not be enjoined.

I write separately to emphasize my views that

—preparation and filing of standardized papers

to obtain an uncontested no-fault divorce where

there are no issues of child custody, child support,

alimony or property settlement does not require

the professional judgment of a lawyer, and there-

fore does not constitute the practice of law;’

—while it is unclear where the line should be

drawn between those cases where a lay advocate

may readily assist persons who wish to exercise

their constitutional right of self-representation and

cases where the client should be encouraged to

2 While Cramer limited her activities as indicated. | do not mean to

be understood as qualifying my full concurrence: he Chief Justice's

opinion

.

4

1976] State Bar v CRAMER 145

4 Opinion by Lavin, J.

obtain the services of a lawyer, it has not been

demonstrated that once the relevant criteria are

determined and the standard established, case-by-

case application requires oversight by a member of

the legal profession;

—the organized bar, which has not made availa-

ble the minimal counseling which would enable a

person to exercise his right of self-representation,

cannot be heard to say that this service which it

does not provide is the practice of law; and

—the Legislature should address the issue of

securing to the people their constitutional right of

self-representation as part of the larger problem of

providing legal services for persons of moderate

circumstances.

I

A

Many of the forms provided by Cramer are

widely available. The complaint, default, affidavit

of default and default judgment of divorce were

modeled on the forms printed in Honigman &

Hawkins, Michigan Court Rules Annotated,

Forms. Other forms provided are available from

the clerk of the court or the friend of the court.

The entire kit was prepared under the supervision

of lawyers.

Legal forms, for a variety of purposes, have for

many years been sold or made available without

charge by stationers, legal newspapers, abstract

and title companies, real estate boards, banks, and

insurance companies.

There is far less risk of harm to the public

resulting from misuse of a “divorce kit” than from

misuse of form deeds of conveyance, land con-

146 399 Micu 116 [Dec

Opinion by Levin, J.

tracts, business or residential property leases, in-

ter vivos trusts or wills.

If a complaint for divorce is improperly filed, a

judge has an opportunity to notice the defect and

it can either be remedied or a new complaint filed.

When an error is discovered in other legal forms,

indiscriminately available to the public, it is often

too late to correct the mistake.

Cramer uses an initial interview form in elicit-

ing the information required to prepare an ade-

quate and factually accurate complaint.‘ She se-

lects the appropriate forms and they are prepared

for the client’s signature.

At the second interview, a week later, the client

signs and verifies the complaint, and is told how to

file and serve the papers, and is given an opportu-

nity to have these services performed by Cramer

for a nominal fee.’

Cramer monitors the court dockets to determine

when the papers are filed and, following the expi-

ration of 20 days after service, advises the client to

appear for a third interview to sign an affidavit of

default.

The task of defining the “practice of law” has

been confided to the Court.’ “{I}t is left to the

‘Names and addresses of parties; duration of residence in the

county and Michigan; date, place and solemnizer of marriage, prior

name of wife, number, names and birthdates of children; date a

separation and reason; list of any jointly held property.

* The fee was $10, most of which was used to pay process servers to

perform the tasks of filing and serving.

*"it is unlawful for any person to practice law, or to engage in the

law business, or in any manner whatsoever to lead others to believe

that he is suthorized to practice law or to engage in the law business,

state” MCLA 600 916, MSA 277A 916

1976] Strate Bar v CRAMER 147

Opinion by Levin, J.

courts of this State as well as those of most other

States, to define the ‘practice of law.’” Ingham

County Bar Association v Walter Neller Co, 342

Mich 214, 221; 69 NW2d 713 (1955).

It has been authoritatively stated that “[flunc-

tionally, the practice of law relates to the rendi-

tion of services for others that call for the profes-

sional judgment of a lawyer. The essence of the

professional judgment of the lawyer is his edu-

cated ability to relate the general body and philos-

ophy of law to a specific legal problem of a client”.’

Under the former practice, when it was neces-

sary to state grounds for divorce, professional

judgment was generally required in the prepara-

tion of a complaint for divorce. Under no fault

there is only one ground, “breakdown of the mar-

riage relationship to the extent that the objects of

matrimony have been destroyed and there remains

no reasonable likelihood that the marriage can be

preserved”. The statute provides that the com-

plaint “shall make no other explanation of the

grounds for divorce than by the use of the statu-

tory language’”’.’

Acts which once constituted the practice of law

now no longer require professional ski!] or judg-

ment. The “reason” it is “extremely difficult to

formulate an accurate definition of the ‘practice of

law’ which might endure” is “that under our

system of jurisprudence such practice must neces-

sarily change with the everchanging business and

social order”. Grand Rapids Bar Association v

Denkema, 290 Mich 56, 64; 287 NW 377 (1939).

7 ABA Special Committee on Evaluation of Ethical Standards, Code

of Professional Responsibility (1969), Ethical Consideration 3-5 accom-

ying Dusciplinary Rule 3101 (Aiding Unauthorized Practice of

wi.

* MCLA 552.6; MSA 25 86

148 399 MicH 116 (Dec

Opinion by Levin, J

The preface to the revised edition of The Attor-

ney’s Desk Book’ states:

“An attorney can record a deed on behalf of a client,

but so can non-legal personnel. The same non-legal

personnel can secure from a client routine facts with

the assistance of an interview form, thus freeing the

attorney for necessary legal work which must be done

by him alone and, in addition, with lesser financial

burden to the client for services rendered at no finan-

cial loss to the attorney.”

It is stultifying to suggest that the routine activ-

ities of conducting interviews, preparing and filing

the stylized complaint and associated documents

for a no-fault divorce require the professional

judgment of a lawyer, “his educated ability to

relate the general body and philosophy of law” to

these tasks.

Interviewing, preparing, filing and monitoring

are performed in many law offices by “non-legal

personnel” without actual supervision by a law-

yer.” “[W]e cannot shut our eyes to matters of

public notoriety and general cognizance. When we

take our seats on the bench we are not struck with

blindness and forbidden to know as judges what

we see as men.” Ho Ah Kow v Nunan, 12 F Cas

252, 255 (No 6546) (CCD Cal, 1879).

* Issued under the auspices of the Professional Economics Commit-

tee and the Board of Commissioners of the State Bar of Michigan

o- Arbor, Mich, Institute of Continuing Legal Education, rev ed

»

In Johnson v Avery, 393 US 483, 490, fn 11; 89 S Ct 747; 21 L Ed

2d 718 (1969), the United States Supreme Court observed that the

preparation of petitions for post-conviction relief “though historically

and traditionally one which may benefit from the services of a trained

and dedicated lawyer, is a function often, perhaps generally, per-

formed by laymen. Title 28 USC § 2242 apparently contemplates that

in many situations petitions for federal habeas corpus relief will be

prepared by laymen”

1976] State BaR \ CRAMER 149

Opinion by Levin, J.

Cc

The initial judgment whether the services of a

lawyer may be required is generally made by

laymen. Implicit in the limitations on solicitation

by lawyers," is that a layman, the client, makes a

judgment—sometimes after consulting another lay-

man—whether the services of a lawyer may or

may not be required, before a lawyer has an

opportunity to make a judgment.

In the borderline areas between the professions,

it is laymen—accountants, real estate brokers,

insurance agents, trust officers—who make a judg-

ment, sometimes under agreements worked out by

the professional associations,'"* of where the prac-

tice of one discipline ends and the practice of law

begins and of whether to call in a lawyer.

It is illogical and impractical to require poten-

tial clients to eschew lay assistance and to obtain

the advice of a lawyer when a question arises

whether a lawyer’s advice should be sought.

It does not appear that any of Cramer’s clients

have been misled into believing that she is a

lawyer or is providing the services which a lawyer

might provide.

The interview form contains, immediately above

the client’s signature, a warning” that Cramer is

not holding herself out as “qualified to render

1! DR 2-103, 2-104.

12 See Realtor-Lawyer Principles Adopted, 39 Unauthorized Practice

News 177 (1975); Guiding Principles Respecting Division of Responsi-

bility Between Lawyers and Banks in Planning and Settling Estates,

39 Unauthorized Practice News 225 (1975), District of Columbia Bar

and 27 Title Insurance Companies Adopt Statement of Principles, 39

Unauthorized Practice News 223 (1975).

13 “IMPORTANT: This plan is not intended as holding ourselves out

to the public as qualified to render advice and service to persons who

are interested in obtaining a divorce in the courts of Michigan. If you

need expert counseling, legal advice and service, you should consult a

licensed lawyer or an attorney at law

“FOR EXAMPLE

aa ae Dee

advice and service” to persons interested in obtain-

ing a divorce and that if “expert counseling, legal

advice and service” is needed an attorney at law

should be consulted, as where there are issues of

child custody, child support, alimony or property

settlement.

There is no evidence that Cramer counseled her

clients on matters requiring the specialized train-

ing and professional judgment of a lawyer. The

form judgment of divorce which she used con-

tained a standard provision that no alimony is to

be paid. Clients desiring alimony were directed to

engage the services of a lawyer." Similarly, if a

dispute arose between a client and spouse concern-

ing the disposition of property which they could

not resolve themselves, no further assistance

would be provided and the client was referred to a

lawyer.

In sum, it appears that the papers were pre-

pared on the assumption that there are no unre-

solved disputes. Where there was a dispute, fur-

ther services were not provided and the clients

- * were told to obtain the services of a lawyer. Refer-

rals were made to individual lawyers and to the

local bar association’s lawyer referral service. It

was estimated that over 600 cases had been refer-

red to lawyers.

The line drawn by Cramer is clear cut. It does

not depend upon analysis of varying facts on a

“Child custody

“Visitation

“Child support

“Alimony

“Separate maintenance.

“Real & personal property rights.

“Pension funds and benefits.

“Social Security benefits.

“Insurance coverage and benefits.”

'*In one case alimony was requested in error

a 4

os

as 2 ah

ee

=

ae

1976] State Bar v CRAMER 151

Opinion by Levin, J.

case-by-case basis. If there is an unresolved dispute

she will not assist further. The standard she has

developed functions much like the standards

adopted to resolve borderline disputes between the

legal profession and other professions."

Perhaps the services of a lawyer should be re-

quired whenever there are minor children or prop-

erty is to be divided. If the judicial judgment were

that the line should be drawn more conservatively

than Cramer has drawn it, the Court might more

properly so hold, rather than proscribe such ser-

vices altogether. There are a large number of

young persons with limited resources who may

wish, upon separation after a marriage of short

duration, without children or accumulation of

property, to avail themselves of Cramer’s services.

If no alimony is desired, it is a remote possibility

that any professional judgment is required. “Of

course, exceptional cases may arise from time to

time where legal problems are involved in the

presentation of [cases], but it is the ordinary [case]

and not the exceptional one which now engages

our attention. Anticipating the exceptional would

hardly be practicable.”*

The concern expressed -that Cramer will not

recognize potential problems which a lawyer might

perceive appears, on this record, to be chimerical.

One would expect that if any substantial evidence

existed that substantive rights of Cramer clients

had been lost because of her inability to perceive

the need for and advise the employment of legal

counsel the State Bar would have offered such

18 See {n 12, supra, and accompanying text.

* Goodman v Beall, 130 Ohio St 427, 431; 200 NE 470, 472 (1936).

The court declared that the common practice of laymen assisting an

injured or deceased workman or his dependents in the submission of a

workmen's compensation claim was not the practice of law but that

an ype after notice of disallowance of claim constituted the prac-

tice of law

he

152 en Us [Dec

evidence. We should not uncritically indulge a

hypothesis unsupported by record evidence where

there is plentiful experience from which evidence

could have been derived.

If the experience subsequent to the making of

this record indicates » need for limitations to

protect the public they vould be imposed upon the

requisite showing.

The desire of the State Bar to protect the public

and the desire of persons to obtain services ena-

bling them to exercise their right of self-represen-

tation can be harmonized. Denying services to

persons of moderate circumstances to protect them

against imaginary risks cannot be justified where

lesser measures will achieve the objective.

D

Virginia Cramer is not selling a divorce kit, but

an idea.

The right of a litigant to represent himself

derives from the Constitution: “A suitor in any.

court of this state has the right to prosecute or

defend his suit, either in his own proper person or

by an attorney.” Const 1963, art 1, §13. This

provision is of long standing.”

Most lay persons wisely refrain from exercising

this right in ordinary litigation; without the train-

ing and skill of a lawyer, few laymen will be able

to represent themselves adequately.

If the constitutional right of self-representation

__ "1 See Const 1850, art 6, § 24; Const 1908, art 2, § 12.

The United States Supreme Court has held that the Sixth Amend-

ment, as made applicable to the states by the Fourteenth Amend-

ment, secures to a defendant in a state criminal case a right of self-

representation. Faretta v California, 422 US 806; 95 S Ct 2525; 45 L

Ed 2d 562 (1975). Sew People v Anderson, 398 Mich 361; 247 NW2d

AST 11976)

“— |

1976) Strate Bar v CRAMER 153

Opinion by Levin, J.

is to be meaningful, lay per.ons will generally

require guidance and assistance.

Cramer, a week before the scheduled court date,

conducts the fourth and final interview. The client

is provided a form entitled “My Day in Court”,

intended to prepare him to give testimony in

court. There are blanks for the necessary factual

allegations, to be filled in by the client in his own

handwriting. The pro forma statements—the lit-

any of a pro confesso divorce—are set forth. The

client receives a proposed judgment of divorce to

be handed up to the judge. Additional information

is also given regarding the location of the court-

room, courtroom etiquette and attire. This is the

final meeting. Cramer does not appear with or

represent clients in court. Clients are encouraged

to call back if problems arise.

Educating persons in the exercise of their consti-

tutional right of self-representation has not been

part of the traditional business cf the lawyer. Most

lawyers have provided this service to no one.

While the faculties of the law schools are in the

main composed of lawyers who at one time were

admitted to practice in some jurisdiction, a lawyer

may not practice in this state unless he is an

active member of the State Bar. It is the apparent

opinion of the majority of the faculty of one of this

state’s better-known law schools that teaching law

does not constitute the practice of law—60% of the

full-time faculty are not active members of the

State Bar."

The United States Supreme Court has observed

that “[tJhe colonists brought with them an appreci-

ation of the virtues of self-reliance and a tradi-

The figure is reduced to 55% non-membership if one counts all,

including adjuncts, who are designated assistant professor, associate

professor or professor of law.

154 399 MicH 116, [Dec

Opinion by Levin, J

tional distrust of lawyers. * * * This prejudice

gained strength in the Colonies where ‘distrust of

lawyers became an institution’”. The Court noted

that the constitutions of most states confer a right

of self-representation. Faretta v California, 422 US

806, 826-827, 813; 95 S Ct 2525; 45 L Ed 2d 562

(1975).

It appears, therefore, that the right of self-repre-

sentation derives in part from distrust of lawyers.

It derogates from that right to bar persons who

desire to exercise it from obtaining knowledge

regarding the manner of exercise except from a

lawyer.

Most lawyers have more rewarding work to

perform than to make available to the public the

service provided by Cramer: confining participa-

tion in a divorce case to preparation and offering

to file the necessary papers, monitoring dockets

and counseling the client regarding self-represen-

tation.”

19 Where there has been growing and unmet demand for particular

legal services, other means of delivery have been devised in substan-

* tial response to the bar’s failure to meet those needs through more

= and less costly delivery systems. As noted by Johnstone and

opson:

“ "It appears to be axiomatic in the United States that whenever a

particular task or combination of tasks performed by lawyers grows

to mass volume proportions and the mass demand promises to con-

tinue, laymen will eventually take over performance of these tasks

unless deterred from doing so by unauthorized practice laws. In part

this results from more efficient lay specialization and standardization

and more aggressive lay advertising and solicitation. But in part, too,

it results from lawyers’ reluctance to counter lay competition ‘by

cutting fees or increasing quality.’

“Examples where this has taken place include such areas of legal

practice as the review of the legal adequacy of mortgages being

acquired by large institutional lenders and title insurance by the ‘big

plant’ insurers. Pressures to reduce costs exerted by non-lawyer

dominated work units providing legal services have resulted in insur-

ance companies using non-lawyers (insurance adjusters) for most

claims settlement work and government using non-lawyer bid and

contract reviewers, social security and veteran's benefits claims ad-

justers, FHA field investigators, regulatory agency violation investiga-

tors, etc.” Brickman, Expansion of the Lawyering Process Through a

1976} State Bar v CRAMER 155

Opinion by Levin, J.

Some lawyers who might be willing to provide

this service may fear disciplinary proceedings

should they do so. Others, aware of the dim view

that many judges take of self-representation, will

stand aside. Some will be concerned that they may

incur the opprobrium of lawyers who regard the

rendering of such services as undermining the

dignity of the profession. Whatever the reason, the

servicc is not available from members of the orga-

nized bar.

The United States Supreme Court has held that

“unless and until the State provides some reasona-

ble alternative /e.g., lawyers or law students”] to

assist inmates in the preparation of petitions for

post-conviction relief, it may not validly enforce a

regulation such as that here in issue, barring

inmates from furnishing such assistance to other

prisoners”. Johnson v Avery, 393 US 483, 490; 89

S Ct 747; 21 L Ed 2d 718 (1969).

New Delivery System: The Emergence and State of Legal Paraprofes-

sionalism, 71 Colum L Rev 1153, 1179-1180 (1971).

"By contrast, in several states, the public defender system sup

plies trained attorneys, paid from public funds, who are available to

consult with prisoners regarding their habeas corpus petitions. At

least one State employs senior law students to interview and advise

inmates in state prisons. Another State has a voluntary program

whereby members of the local bar association make periodic visits to

the prison to consult with prisoners concerning their cases. We

express no judgment concerning these plans, but their existence

indicates that techniques are available to provide alternatives if the

State elects to prohibit mutual assistance among inmates.” Johnson v

Avery, supra, pp 489-490.

2! Johnson v Avery, supra, was extended in Procunier v Martinez,

416 US 396, 420; 94 S Ct 1800; 40 L Ed 2d 224 (1974), where the Court

again held invalid a state requirement barring non-lawyers from

providing service where implementation of the restriction would deny

access to the courts. The restriction set aside absolutely barred

lawyers from using students and legal para-profeasionals to conduct

attorney-client interviews in prisons. The Court held this constituted

an unjustified restriction on the prisoner's right of access to the

courts since it would “deter some lawyers from representing pri rs

who could not afford to pay for their traveling time or that of licensed

Private investigators”.

In Sperry v Florida ex rel Florida Bar, 373 US 379; 83 S Ct 1322; 10

156 399 Micx 116 [Dec

Opinion by Levin, J.

At stake in Johnson was the fundamental right

of a prisoner to have access to the courts for the

purpose of presenting his claims for post-convic-

tion relief. Here the right involved is that of

persons of moderate circumstances to have access

to the courts for the purpose of dissolving a mar-

riage.

The United States Supreme Court has held that

the state cannot require an indigent person to pay

a filing fee or service of process costs as a precon-

dition to obtaining legal dissolution of a marriage.

The Court declared that marriage involves “inter-

ests of basic importance in our society” and that at

stake was “the adjustment of a fundamental hu-

man relationship.” The interest was characterized

“a protected right”. The Court concluded ‘hat

“given the basic position of the marriage relation-

ship in this society’s hierarchy of values and the

concomitant state monopolization of the means for

legally dissolving this relationship, due process

does prohibit a State from denying, solely because

of inability to pay, access to its courts to individu-

als who seek judicial dissolution of their mar-

riages”. Boddie v Connecticut, 401 US 371, 374,

376, 383, 379; 91 S Ct 780; 28 L Ed 2d 113 (1971).

Justice WiLu1aMs’ opinion states the practical

L Ed 2d 428 (1963), the Court upheld the power of the United States

Patent Office to admit lay practitioners although under state law the

prosecution of a patent application for others constituted the practice

of law. In Keller v Wisconsin ex rel [:ate Bar of Wisconsin, 374 US

102; 83 S Ct 1686; 10 L Ed 2d 1026 (1963), the Court remanded for

reconsideration in the light of Sperry a decision of the Wisconsin

Supreme Court that a lay practitioner before the Interstate Com-

merce Commission could not 4 before the Public Service Com-

mission, although permitted by Wisconsin statutes and the adminis

trative code. State ex re/ State Bar of Wisconsin v Keller, 16 Wis 2d

377; 114 NW2d 796, 116 NW2d 141 (1962). On remand the Wisconsin

court acknowledged that Keller could give in Wisconsin his opinion

on ICC matters but held that he could not appear in a representative

capacity before the state Public Service Commission. State ex re/

State Bar of Wisconsin v Keller, 21 Wis 24 100, 123 NW2d 905 (1963),

cert denied 377 US 964; 84 S Ct 1643; 12 L Ed 2d 734 (1964).

1976] STATE BAR V y CaamEn 157

Opinion by Levi

unavailability of legal services for a large segment

of the population. The choice for many persons

‘who do not have $400 or more to hire a lawyer, is

to forego, or be unduly delayed in obtaining, a

divorce, although the only relationship extant 4a

tween the couple is the one recognized by law.

Paraphrasing Johnson v Avery, supra, as long as

the state monopolizes the means of dissolving this

relationship, and the profession, in the exercise of

its monopoly, does not provide services to persons

who would exercise their right of access to the

courts through self-representation, this Court

should not enforce a rule barring laymen from

furnishing the assistance which lawyers do not

provide.

II

Legislative consideration of the question would

now be warranted.

The purpose of the no-fault divorce law is to

provide a quick and efficient remedy.” For a poor

person or one of moderate circumstances who

cannot obtain legal representation, this legisla-

tion’s promise has not been fulfilled.

The public interest may require supervision of

the kind of service provided by Cramer lest the

abuses feared by the State Bar become real.”

Legislation providing for licensing and regulation

of lay advocates would facilitate the rendering to

ies. Divorce Law Reform in Michigan, § J L Reform 409, 416

(1972).

= The rapid growth of lay advocacy as a means of providing legal

service in situations or to persons not generally served by the profes

sion is described in Brickman, supra, 71 Colum L Rev, pp 1189-1210.

It appears that this was a prevalent means of representation in the

* early days of the republic. /d, p 1169.

See Robinson, Appearances by Laymen in a Representative Capac-

ity Before Administrative Bodies, 5 Law and Contemporary Problems

89 (1938)

m..ter

M

68 go Men 16 De

the public the necessary service and provide a

means of securing protection against abuse.”

*%1 appreciate that state supreme courts have generally asserted

that the power to determine what constitutes the practice of law

inheres in the judiciary, as stated by the Supreme Court of Okla-

homa, “without regard to whether ved

‘nonforensic'”. RJ Edwards, Inc v Hert, 504 P2d 407, 415 (Okla,

1972). People ex rel Chicago Bar Ass'n v Goodman, 366 Ill 346; 8

NE2d 941; 111 ALR 1 (1937), cert den 302 US 728; 58 S Ct 49; 82

562; reh den 302 US 777, 58 S Ct

Unauthorized Practice of Law in Cu j

23 Ohio Ops 2d 445; 192 NE2d 54; 2 ALR3d 712 (1963). But see Eagle

Indemnity Co v Industrial Accident Commission, 217 Ca] 244; 18 P2d

341 (1933), holding that it was within the prerogative of the Legisla-

ture to allow laymen to represent injured workers throughout a

workmen's compensation proceeding.

These claims of judicial power are extravagant. The judiciary may

assert but does not legitimately have the inherent, constitutionally

implied power to bar non-lawyers from pursuing their vocations on a

finding of impingement on work sometimes or traditionally done by

lawyers. Occupational licensing of non-lawyers is a legislative prerog-

ative; unless the Legislature were to authorize non-lawyers to appear

in court, there is no intrusion on judicial power.

The “judicial power” (Const 1963, art 6, § 1) is vested in the “one

court of justice” (id this Court has “general superintending contro!

over all courts” (Const 1963, art 6, § 4) and the power by general rules

to “establish, modify, amend and simplify the practice and procedures

in all courts of this state”. (Const 1963, art 6, § 5). (Emphasis added.)

The power conferred manifestly includes the power to decide who

may practice in the courts; legislation concerning the licensing of

persons to practice in the courts is subject ultimately to judicial

control.

As long as the Legislature refrains from defining the term “practice

law”, as used in existing legislation, this Court can define it. The

Legislature may, however, amend the statutes and, as Congress and

some states have done, authorize lay advocates to represent clients

before administrative tribunals.

The power conferred in Const 1963, art 6, § 28 to review adminis

trative action which is “judicial or quasi-judicial” and affect: private

rights or licenses is not a source of additional judicial .ower to

regulate practices and procedures in such tribunals. If it were, then

the business of this Court would include not only overseeing the

practices and procedures of the courts but establishing, by ruje and

pr ar sears order, the administrative procedures and supervision

of the countless township, city, county and state administrative

agencies whose actions are subject to judicial review. Plainly that is

beyond our authority and energy.

The Federal Administrative Procedures Act provides that a person

compelled to appear before an agency is entitled to be represented

and advised by counsel * ‘or, if permitted by the agency. by other

qualified representative” 5 USC 555bi Some of the important Fed-

“ea

4

é

i

|

2

ae

E

8

1976} Strate Bar v CRAMER 159

Opinion by Levin, J.

Some may view state regulation of lay advocacy

as legitimizing and encouraging this development;

‘others who favor the expansion of lay services as a

means of making legal services available to the

poor, may fear that the organized bar will co-opt

the regulatory function. Both concerns are justi-

fied.

eral agencies permit representation by qualified lay advocates. Immi-

gration and Naturalization Service, 8 CFR 3.1(dX3); Drug Enforce.

ment Administration, Department of Justice, 21 CFR 1316.50; Federal

Energy Administration, 10 CFR 205.3; Federal Power Commission, 18

CFR 1.4; Food and Drug Administration, 21 CFR 2.58, 2.59; National

Labor Relations Board, 29 CFR 102.38. See also Social Security

Administration, 20 CFR 416.1446; Equal Employment Opportunity

Commission, 29 CFR 1601.6. The Tax Court of the United States

(formerly denominated the Board of Tax A and not an Article

III court; see Wright, Federal Courts [2d ed], § 11, p 34) admits non-

attorneys who pass an examination given by the court (US Tax Ct R

2).

The Department of Health, Education and Welfare permits welfare

clients to be “represented by an authorized representative, such as

legal counsel, relative, friend, or other spokesman or he may repre-

sent himse!f’. 45 CFR 205.10(aX3Xiii). In consequence, the regulations

of the Michigan Department of Social Services are substantively

identical. 1970-1971 AACS, R 400.90%1Xa), p 5643.

The rules of practice and procedure of a number of state agencies

permit a person to appear either in person, “by duly authorized agent

or by counsel”. State Board of Physical Therapy Registration, 1966

AACS, R 338.1122, p 3673; State Board of Nursing, 1968 AACS, R

338.1241, p 4716; Electrical Administrative Board, 1969 AACS, R

338.1082, p 5142; State Board of Veterinary Examiners, 1958 AACS,

R 287.1, p 932; Board for Marriage Counselors, 1968 AACS, R

338.1836, p 4726 ("by counsel or otherwise”); Michigan Employment

Security Appeal Board, 1967 AACS, R 421.525, 421.532, pp

* “[Tlypically, the lay advocate works for, or in, a nonlawyer-domi-

nated institution, such as a prison, a labor union, or a community

organization having only sporadic contact with the lawyer. ———

performing work which clearly constitutes the ote of law, and

despite the absence of a lawyer's co ep coe pew advocate has

gained a measure of statutory protection and societal acceptance not

accorded the lay assistant. The growth of the administrative agency,

eee has supplied grea: impetus to the development of lay advo

; concern for accessibility to decision-making especially

thane adjudicating rights of individuals, prom lawmakers to pro

= for lay representation before the administrative agency. States

have adopted similar measures in recognition of the fact that access

to lawyering is essential for groups requiring legal services which

lawyers, due to their inefficient delivery system, cannot provide at a

feasible price These laws are themselves part of a process of ensuring

- nies De

It would also be in order to consider again

whether the workaday business of uncontested

divorce should not be transferred from the court

to, say, the friend of the court who in practice

makes the bulk of the decisions, subject to judicial

review and modification. What is now a judicial

procedure would then become an administrative

procedure with, as now, de novo judicial review by

a circuit judge only in contested cases where a

disagreement concerning the friend of the court’s

recommendation/decision cannot be resolved to

the satisfaction of both parties. The major part of

the work involved in processing divorce cases is

now being conducted in this manner;* what is now

equal protection for widening segments of the population. For exam-

ple, to provide a working man with both a claim against his employer

for injuries sustained on the job and a specialized. forum for adjudica-

tion of his claim is an exercise in futility unleas he is also provided

with the needed assistance (advocacy) to invoke the claim process.

“In summary, both the legal profession in the case of the legal

specialist, and society, in the case of the lay advocate, have made a

judgment that in some instances the lay practice of law is desirable.

Much of the contemporary discussion of the lay practice of law is

.refiected in an oral debate between representatives of the A.B.A. (the

private bar) and O.E.0. Lega! Services (the public bar). Symbolizing

the dialogue are references to the ‘public sector versus the private

sector.’ Simply put, the private sector, or organized bar, is interested

in the lay assistant as a means of increasing the efficiency of legal

practice methods and thereby, the income of lawyers. The public

sector view focuses on the lack of access of the poor (and even of the

middle-class) to legal services and is concerned mainly with delivering

those services—a concern for the development of lay advocates which

is of secondary importance to the private sector. The dialogue is often

heated because the private sector talk of certification of para-legal

personnel is perceived by public sector adherents as a means of

controlling the development of lay advocates, particularly free-stand-

ing lay advocates operating without the supervision or control of an

attorney. On the other hand, public sector proponents speak of

expanding the legal services delivery mechanism without much re

gard for private sector-imposed strictures, such as prohibitions against

the unauthorized practice of law.” Brickman, supra, 71 Colum L Rev,

pp 1187-1188.

See, also, Statsky, Paralegal Advocacy Before Administrative Agen-

cies: A Training Format, 4 Toledo L Rev 439 (1973)

% See rules of circuit courts—Wayne County, Rule 10 (Domestic

1976] StaTE Bar v CRAMER 161

Opinion by Levin, J.

de facto would become de jure and be extended to

the pro confesso and all uncontested phases of

divorce proceedings.

The pro confesso divorce is a misuse of limited

judicial time and an embarrassment to the judicial

process. The imposition felt by the judiciary is

especially galling when untrained persons seeking

to represent themselves come into court without

adequate preparation.

Jailing Cramer from time to time will not re-

lieve the circuit courts of the obligation imposed

by present law to allocate time to perfunctory

business nor will it provide the public with the

service that the success of her enterprise demon-

strates is needed.”

Relations Actions), reprinted in Michigan Court Rules, 1976 (West

Pub Co), which but adumbrates the central role of the friend of the

court in the decisional! process.

™7The effect of court-related expenses, minimum fee schedules, and

prohibitions against advertising, solicitation, specialization, unre-

stricted group legal services and the unauthorized practice of law, is

to bar the legally poor from the formal processes of adjudication and

rulemaking in our courts and administrative agencies. These bastions

of the legal profession's monopoly over the practice of law have been

shown to be constitutionally infirm. Unless a new legal services

delivery system, which lacks minimum fees and includes advertising,

lay performance of simple legal tasks and the variety of efficiency-

increasing techniques, is developed by the bar, the price tag on justice

will continue to be unconscionable. Even though the equal protection

and due process clauses have failed to provide a basis for successfully

challenging impediments to access to the courts and to lawyering

services, the first amendment may prove to be the functional equiva-

lent of a fourteenth amendment guarantee. The bar's practices which

prevent ia peel of our population from participating in the claim

process are in poneeel, and ought to so remain until the high ideals

espoused by Henry VII's England become a reality in this nation and

‘every pouer persone * * * shall have * * * [access to courts) and also

lerned Councell and attorneyes.’” Brickman. Of Arterial Passageways

Through the Lega! Process: The Right of Universal Access to Courts

and Lawyering Services, 48 NYU L Rev 595, 668 (1973).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Supplemental Appendix — Cramer v. State Bar of Michigan · 466 U.S. 974 | Frix