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.