Central Law Journal.

ST. LOUIS, MO., JANUARY 28, 1916.

ARE ATTORNEYS WHO ASSIST A CORPORATION IN PRACTICING LAW GUILTY OF PROFESSIONAL MISCONDUCT?

The question of the unlawful practice of the law continues to agitate the profession, which, in some states seems to be determined to rid itself of unlawful competition of laymen and corporations in the practice of law. In our first issue of the current year we had occasion to publish in full the recent opinion of the Tennessee Court of Appeals in the case of Grocers. & Merchants Bureau of Nashville v. Gray, which held that a collection agency offering to give legal advice with respect to commercial matters placed in their hand was practicing law and that the courts would not assist them in securing compensation for services rendered under such a contract. See 82 Cent. L. J. 16, where, in an exhaustive note, we have collated the authorities defining the practice of law.

Now comes the Appellate Division of the Supreme Court, of New York, and in an opinion handed down in December, 1915. in the case of In the Matter of Pace and Stimpson, holds: "That it is unlawful for a corporation, whether domestic or foreign, to practice law in this state, and any member of the bar, who assists a corporation in violating the law in this respect, is guilty of professional misconduct."

There hardly will be any surprise expressed at the attitude of the court in holding that preparing the necessary papers to incorporate a company under the laws of any state constitutes the practice of law.

And in this respect the opinion of the court in this case is in harmony with the great weight of authority in this country when it quotes with approval the following language of the South Carolina Supreme Court: "It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this county, it embraces the preparation of pleadings and other papers incident to actions and special proceedings on behalf of clients before judges and courts, and in addition, conveyancing and preparation of legal instruments of all kinds, and in general, all advice to clients and all action taken for them in matters connected with the law."

Reasoning from this premise it was at matter that presented no logical difficulty for the court to hold that incorporating a company was law business. On this point the court added: "The incorporation of a company involves the interpretation of statutes, the preparation of proper papers and a consideration of the nature of the corporation to be formed, in order that it may meet the needs of its projectors. All this calls for the application of legal knowledge and skill and the consequent rendering of legal advice and services."

In this case it appeared that the respondents, Francis P. Pace and H. C. S. Stimpson, attorneys in good standing at the New York bar, had been employed to represent in that city the Corporation Company of Delaware, a corporation, whose chief business was to organize corporations under the Delaware law. The corporation advertised that its representatives would, for a stated fee, furnish and fill out the proper blanks for the incorporation of any company under the Delaware law.

It is interesting to note in this connection that the court paid little heed to the argument of respondent's counsel that the

services rendered by the Corporation Company of Delaware were purely ministerial. and consisted in merely filling out proper forms designated by the Delaware law. On this point the court said: "It is true that the legislature has made it so simple and apparently easy to incorporate a company that it often happens that laymen, guided by stationers' blanks, undertake to perfect incorporation without legal advice, and sometimes without untoward consequences. But this does not prove that the incorporation of a company according to statute does not involve, properly speaking, legal advice which, in practically every case, is requisite if there is to be assurance that the work when done has been done legally and properly."

But, by far, the most interesting feature of this proceeding, are the parties to it. The case is founded on a petition brought by the New York County Lawyers' Association, charging the respondents, constituting the law firm of Pace and Stimpson, with unprofessional conduct "in that they directly assisted a corporation known as the Corporation Company of Delaware to render or furnish legal services or advice." In other words, the bar association did not proceed criminally under the New York statute against the Corporation for violating the statute prohibiting a corporation from practicing law, but proceeded against licensed attorneys who assisted the corporation to practice. In sustaining bar association's petition the court said: "If the acts of this corporation were unlawful ir this state, it is clear that the respondents assisted in and furthered them, and therefore shared in the doing of the unlawful acts. For this they cannot escape responsibility, even, although they erroneously believed that they were doing no wrong."

In view of the fact, however, that the respondents had promptly severed their connection with the business of the Cor

poration Company of Delaware on the institution of these proceedings, the court limited the penalty usually imposed for unprofessional conduct to censure, but gave warning that the court would regard such acts, if persisted in, as constituting serious professional misconduct.

It is strange how difficult it has been to convince some lawyers, otherwise of very high standing at the bar, of the very unethical, not to say unprofessional, character of arrangements with trust companies, corporation charter companies and the like, whereby such companies are enabled to do law business and to reap a reward therefrom.

A. H. R.

NOTES OF IMPORTANT DECISIONS.

WORKMEN'S COMPENSATION ACT-REMEDY EXCLUSIVE OF RIGHT OF ACTION AT COMMON LAW.-There was discussed in 82 Cent. L. J., 43, the question of "Recovery Under the Workmen's Compensation Act for Injury Suffered in Interstate Commerce Where Employer was Free from Negligence." In the case there considered, it was held by New York Court of Appeals, that the Federal Employers' Liability Act, which allows recovery for negligence by employer, did not cover the subject so as to bar an action based on injury without negligence.

It would seem that it is the policy of New York courts to confine the operation of the Workmen's Compensation Act to what is specifically provided for, as witness a recent case by New York Supreme Court which bases its conclusion on a prior ruling by the Appellate Division of that court. Shannahan v. Monarch Engineering Co., 156 N. Y. Supp., 143.

In this case, suit was by a sister of decedent and it was claimed that the Compensation Act did not specify that any benefit could be recovered by one standing in such relationship to deceased, and her action was barred. For plaintiff it was urged that New York Constitution provided that the right of action as existing

be

for damages for death, should never abrogated, and the amendment of the constitution under which the Compensation Act was framed did not take away the remedy given by a prior statute to such a party.

This amendment gave to the Legislature the right "to provide that the right of such compensation and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employes or for their death resulting from such injuries."

We do not follow the reasoning of the court that the right under former legislation was preserved despite this amendment. It certain. ly disposed of all right of action as to the beneficiaries mentioned in the Compensation Act other than under its provisions, and, if it could do this, it was competent for the Legislature to declare, that no other than they should have any right of recovery. Το say otherwise would leave the compensation act incomplete as a statute intended to cover the entire scheme of recovery for accident resulting or not in death to an employe in the course of employment. The narrow. construction put upon the words "exclusive of all other rights and remedies" seems to us not based on sound principles. The cause of action for death is purely statutory and the Legislature has given full power to declare in whom it should exist independently of prior legislation.

LIABILITY ACT SUPERSEDING REMEDY UNDER STATE LAW.-Reference is again made to editorial in 82 Cent. L. J. 43, as to discussion of the scope of Federal Employers' Liability Act, excluding operation of Workmen's Compensation Act, so far as industries engaged in interstate commerce is concerned. The question comes up in Nelson v. Illinois Cent. R. Co., 155 N. W. 169, decided by Supreme Court of Iowa as to the effect of such federal act as to a remedy given by state law to one not expressly mentioned in the federal act, that is to say, a father suing for injury or death of his minor child caused by negligence of an interstate railroad.

The court said:

"There is but one question for determination in the case, and that is whether the. Congress, by the enactment of the federal Employers' Liability Act, takes away from the

father the right to recover for injuries to his minor son. The trial court held that the remedy provided in said act was exclusive, and that there could be no recovery as a consequence of an injury to an employe, except such recovery as was provided for in the act itself. Plaintiff contends that, while the act is exclusive as to the matters falling within its scope, yet it does not deprive one who is not an employe from recovery for such damages as may be sustained by reason of the negligent injury to the employe while engaged in interstate commerce. He concedes that as to injuries or death to such employe, while engaged in interstate commerce, the act in question supersedes all other remedies and rights of action so far as the employe is concerned, but contends that any claim that Congress by implication intended to cut off the right of the father to recover his own damages caused by injury to his minor son is untenable and beyond the scope of the legislation. He contends, also, that the present action was not brought under the federal Employers' Liability Act, and its provisions were invoked by the defendant in a suit brought, not by an injured employe, nor by a personal representative of a deceased employe, but by the father of the minor, claiming that the negligence of the railroad company had deprived him of the services of his son during minority."

As holding that the right of the father was not tolled by the federal act, the court relies on Tonselito v. Ry., 94 Atl. (N. J.), 804, in which it was reasoned that the federal act "purports to deal only with cases involving the death of an employe, and, in the absence of an intent clearly expressed or necessarily implied, that Congress intended to take away by this corrective or remedial act the legal status of third parties as fixed by immemorial rules of the common law, we must assume that such legal rights still subsist unimpaired."

We think there is room for distinction between this case and the question whether the Workmen's Compensation Act was or not applicable to an interstate carrier in any respect. But we see no difference between a parent suing for the death of his minor child and merely suing for injury, loss of services being the gravamen of action in both instances. But there still arises the question of intent in the federal act, the carrier being controlled as to all operations and whether its purpose was to impose, primarily, a penalty, or to vest those suing it with a cause of action for redress of

not the office of the federal government to

create merely actionable negligence so far as private parties are concerned.

CARRIER OF

PASSENGERS-PASSEN

GER ON TRAIN NOT STOPPING AT DESTINATION ON TICKET.- The Supreme Court of Mississippi holds, that, while it is the duty of a passenger to inquire before going upon a train whether it will stop at the station his ticket recites as his destination, yet, it also is the duty of the conductor to tell the passenger upon presenting his ticket, that if his train will not stop, if it will not, at such station, so that he may disembark at the station next before train reaches the one specified. Yaozo & M. V. R. Co. v. Walls, 70 So. 348.

This duty being imposed on the conductor, it is then held that passenger going beyond his station, he has no right to eject him from the train between stations on a dark and rainy night, at a place with which he is not familiar, the passenger being without money to pay addtional fare. Therefore, where a passenger was injured, after being ejected, by falling through a trestle, he had a good cause of action.

Stevens J. files a vigorous dissent on the theory that the ticket plainly expressing the right of the passenger to disembark at a station next before the one marked, could be presumed by the conductor to know that he was about in being on the train, especially as to disembark therefrom, made no additional charge in taking the next train. Under the circumstances it was said that an instruction by the trial court predicated upon the theory merely that the ejection before reaching the station named in the ticket, but after the train had left the next station thereto, was unlawful, where it was forcible and at midnight, was not erroneous.

The dissent is right as strict matter of law, but the instruction was erroneous, if at all, only upon the theory that it was not as fully conditioned as it should have been and could have been, under the facts, there being, apparently, no dispute as to the omitted facts. It seems to us, that when one is on a train, in good faith, he should have protection. If the passenger inadvertently, or because he has fallen asleep, passes his station, he is not to be treated as a trespasser ab initio.

CIAL FORUM.

for its

A strange scene, remarkable dramatic intensity, was witnessed on the twenty-fourth day of September, in the year 1881, at a session of the District Court of the State of Minnesota, held at Brainerd, in Crow Wing County, in the course of the general term presided over by Hon. O. P. Stearns, of Duluth, then holding judicial office and afterwards, by appointment of the governor, a senator of the United States from the State of Minnesota. At the time when the incident occurred the trial of the case, State versus Harris, et al., in which the famous advocate, William W. Erwin, Esq., conducted the defense, had just been concluded, a verdict of guilty had been returned, and the presiding judge had sentenced the defendants, who had been duly convicted of homicide, to a long term of imprisonment in the state penitentiary at Stillwater.

To explain fully the circumstances out of which this case arose it will be necessary to state that in the year 1881 over ten thousand Indians of the Ojibway (sometimes called Chippewa) nation resided in northern Minnesota, having been placed by the general government of the United States upon extensive reservations established in that region. It was the custom of the Ojibways to wander far and wide not only upon the reservations but outside of them in the months of July and August for the purpose of gathering blueberries. Following this custom a small band of Ojibways had made a camp, in the course of their wanderings, near a railway embankment in Crow Wing County remote from any settlement of white people. One evening the defendants in this case were walking along the railway embankment, noticed the Indian encampment and wantonly fired into it killing one man and wounding several squaws and children. For this offense they were in

The court room was crowded with Ojibways who had assembled to watch the trial. Some of them had testified as witnesses. When sentence had been pronounced upon the defendants the court interpreter communicated to several of the Indians the result and, in a few moments, notified the presiding judge that an old chief who was present desired to address the court. Judge Stearns very considerately granted the request and the old chief came forward and made a really eloquent oration. He was a man whose face was furrowed with many deep lines and his general appearance bespoke advanced age. However, his long black hair was but slightly tinged with gray and his black eyes were full of piercing light. The upper part of his body was clad in an old, rusty, black frock coat, his legs were encased in deer skin leggings fringed with the same material and on his feet he wore elaborately beaded moccasins. As he came into the space immediately in front of the judge's bench he wore a gray blanket striped with black draped about his legs and held in the tight clutch of his left hand at the front of his waist-line. From time to time in the course of his speech he removed this blanket from its original position, threw it about his shoulder, flung it over one arm, or held it aloft to emphasize or to illustrate what was said. He spoke in the sonorous Ojibway language.

As interpreted by a member of the famous Beaulieu family, the chief said:

"I wish to inform the gentleman of the house that this is the fourteenth day that I have been here. I came here blindfolded and this is the first day that I have been able to see. To the lawyers here before me I will say that I am glad that you are here. I have heard a great deal about law, but I wish to speak a few words in behalf

of

ton

my

nation. I have been to Washingmany times. I have seen passing by

summers. At Washington I was told by the chief of the white nation that the white people were willing to do justice to my people. However, I have long doubted this."

At this point the old chief removed his blanket and spread it on the court room floor. Then, gathering it up by the four corners and holding it thus suspended in his right hand, he resumed:

"When the white man came to this country all the land from the Great Lakes of the North to the Red River of the North belonged to my people. Then the white man came and took all the land into his possession as I have gathered up this blanket. He gave the Ojibways reserve pieces of land. on which to live, but at the same time the white man came in great numbers, drove away the game, and even gathered the wild rice in the lakes which long ago fed not only the Indians but the wild fowl that fly from north to south and from south to north, and which the Indian captured for his food. So, we have lost our homes and can no longer wander as we would like to wander, and we cannot live well because the white man has taken our land away and we are too ignorant to learn his way of cutting down forests and tearing up the soil of the prairies, making farms, planting seed and making food grow out of the ground. When we trade with the white man we receive, many times, very little for what we sell and we cannot gain much for our families in buying and selling. We are very poor. In the spring time we go to the maple forests, draw the sap out of the trees and make sugar for ourselves. the summer time we go, as our fathers did, to the open fields and there we gather berries and sometimes capture the animals which we use as food. Very often we are driven away from certain places where we try to make sugar and gather berries as our fathers did, because some white man says that the land upon which we step is his

In