In Indiana,1 it was said that: "In a large sense it (the practice of law) includes the legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matters may not be pending in a court." Certainly it would seem that no rule of construction in a narrow way could be applied successfully, where there is express prohibition against an institution for the commission of an act that is malum in se. Such construction would offend a well known rule in regard to statutes in furtherance of common law principles. The above decisions are not only useful for what they directly decide, but for what they imply, especially that we must resort to the common understanding of what the practice of law is in construing statutes regulating the qualifications of attorneys. Apparently a corporation in preparing legal documents, especially such as wills, and advertising that estates may obtain, through their lawyer agents, all the expert knowledge required in their management, places both them and their agents in the predicament of violating the law, the corporation by force of the statute, amendatory of the common law rule, and the agents as violating the common law rule itself. It is to be said also that this case holds that so far as federal courts are concerned, their rules forbid the practice of law therein except by those who are entitled to practice law in state courts, except that by comity an attorney of another state or county may be permitted to appear in special cases before the court. § 126. Agreements by Attorneys with Unqualified Persons a Common Law Offense. I have 15. Eley v. Miller, 7 Ind. App. 529, 535, 34 N, E, 836, cited Statute 22 George II., Ch. 46, which became a law in 1760, to show that agreements of attorneys and solicitors with unqualified persons in the practice of law constituted a common law offense in the absence of statutes specifically covering what was provided for by the English statute. But it may be said, this is only true as to those of our states which adopt as part of our common law, such English statutes, applicable, or rather not unsuitable, to our conditions as they existed at the time of our separation from the mother country. Both by statute and decision there is variance as to this, many, if not the majority of states, fixing an anterior time, to-wit the fourth year of the reign of James I. 16 Of the states adopting the common law, but not specifying the date from which the written and unwritten law of England ceased as new law to govern us, and taking the line of demarcation to be July 4, 1776, there are Florida, seemingly Delaware," Maryland,18 New Mexico,1, Rhode Island,20 and Nevada.21 Other states speak of laws of England in force at the time of our emigration, and generally they place this date at 1607, that is to say, the fourth year of James I.22 The citations I make are not exhaustive, but are used illustratively. The New York constitution23 fixed April 19, 1775, as the line of demarcation, which date would not exclude the act in the twenty-second year of the reign of George II. 16. Fla. R. S. 1892, Sec. 59. 17. Clawson v. Primrose (1873), 4 Del., Ch. 643, 653. 18. Dashiell v. Atty. General (1822), 5 Harr. & J. 392, 9 Am. Dec. 572. 19. Browning v. Browning (1886), 3 N. M. 371, 9 Pac. 677. 20. R. I. Gen. Stat. (1896), Ch. 297, Sec. 3. 21. Hamilton v. Newland (1865), 1 Nev. 40. 22. Hardage v. Stroop (1893), 58 Ark. 303, 307, 24 S. W. 490; Chilcott v. Hart (1894), 23 Colo. 40, 45 Pac. 391, 35 L. R. A. 41; Kreitz v. Behrensmeyer (1894), 149 Ill. 496, 36 N. E. 983, 24 L. R. A. 59; Holloway v. Porter (1874), 46 Ind. 62; Sattig v. Small (1862), 1 Kan. 165; Baker v. Crandall (1883), 78 Mo. 584, 47 Am. Rep. 126. 23. N. Y. Const. Art. 1, Sec. 16. To ascertain then whether the policy declared by this statute inhered in English law at the time of the settlement of Virginia in 1607, would seem to be important, along with consideration whether that policy was applicable to our condition. The year prior to this time," it was provided that "none should from thenceforth be admitted attorneys, in any of the King's courts of record at Westminster, but such as had been brought up in the same courts, or otherwise well practiced in soliciting causes; and had been found by their dealings to be skillful and of honest dispositions." In Tidd's Practice 35 it is stated that: "In confirmation of this statute, a rule of court was made, that none should be admitted an attorney of this (King's) court, unless he should have served, by the space of five years, as a clerk to some judge, sergeant-at-law, practising counsel, attorney, clerk or officer of one of the courts at Westminster; and were also, on examination, found of good ability and honesty for such employments." This author then recites that matters stood thus until the statute of George II., of which I have above spoken. It may successfully be urged, that there would be no common law offense in this country and in a state where the rule is that our common law is only such as applied to our settlement as colonists, and not during colonial life, but scarcely may it be thought in accordance with usage and tradition, that an attorney could surrender his judgment and independence to another in the practice of his profession, or lower the confidence reposed in his skill and personality. Rather should it be thought that the Statute 22 George II., was intended to provide 24. Stat. 3 Jac. I. C. 7. a remedy against abuses, especially when the cases I have instanced indicate that procedure thereunder was summary and not by regular jury trial. Thus it has been laid down that: "The court will, in general, interfere in this (a) summary way to strike an attorney from the roll, or otherwise punish him, for gross misconduct, not only in cases where the misconduct has arisen in the course of a suit, or other regular and ordinary business of an attorney, but where it has arisen. in any other matter so connected with his professional character as to afford a fair presumption that he was employed in or intrusted with it in consequence of that character."25 26 In a rather early New York case, there is a most interesting discussion of the admission of attorneys to the bar, and it is recited that beginning with a statute in the fourth year of the reign of Henry IV, more than 200 years prior to the settlement of Virginia, and again. in the third year of the reign of James I, also prior to this time, English law controlled this subject. In this case, that these old statutes were looked to to ascertain the rights and privileges, qualifications and character of attorneys, also well appears from a discussion by our federal supreme court.27 We think, therefore, it cannot be doubted that as to all states recognizing our common law as embracing English statutes applicable to our condition at the time. of our separation, it is a common law offense for an attorney to represent a corporation in the doing of legal business for a customer, and that according to the course of law prior to such statute, such representation is 25. Archbold's Practice, Ed. by Chitty, p. 148. 26. Matter of Application of Cooper (1860), 22 N. Y. 67. against the spirit of the common law, though very probably not indictable as such. § 127. Attorney Appearing for Corporation Practicing Law Cannot Take Advantage of its Illegal Conduct. An attorney retained by a corporation which had undertaken legal proceedings for third persons, was held liable to account to the corporation. The court could not uphold the attorney "in his vindication of a law which he too broke, to the end that he should keep moneys which are not his own." This, of course, is but an application of the principle that no man shall profit by his own wrong. The court speaks of the New York statute against the corporate practice of law as constituting an offense mala prohibita and not mala in se, and the purpose and effect of this law to be "to preserve an ancient and honorable profession of the highest usefulness and standing,' one which 'involves the highest trust and confidence,' from the inroads of a legal entity that could neither qualify for practice nor discharge such personal obligations of trust and confidence, and which, acting as a middleman, so to speak, between client and attorney, might destroy the relation of client and attorney, or with its aggregated power, might affect the individual independence of the bar." § 128. Distinction as to Corporation Furnishing Services to Attorneys at Law. It has always been permissible for counselors and attorneys at law to employ an unlicensed person as an assistant or clerk. A corporation is therefore qualified to act in such a capacity, without question. When a trust company assists an attorney in drafting a will, in organizing or reorganizing a corporation, or in examining a title, it is but acting 28. United States Title Guaranty Co. v. Brown (1915), 166 N. Y. App. Div. 688, 152 N. Y. Supp. 4708, affirmed in (1916) N. Y. 111 N. E. |