People v. Sipper
61 Cal. App. Supp. 2d 844, 142 P.2d 960, 1943 Cal. App. LEXIS 727 (1943)
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Rule of Law:
The unauthorized practice of law includes providing legal advice, counsel, and preparing legal instruments that secure legal rights, going beyond mere clerical services like filling out blanks with specific, pre-determined information provided by the parties.
Facts:
- Mr. and Mrs. Tirheimer, seeking to secure a $700 loan from Mrs. Hetman, visited the defendant's 'Real Estate Office and Notary Public' after seeing his sign.
- The Tirheimers, inexperienced in such matters, asked the defendant to 'make out a paper to protect Mrs. Hetman for the money,' providing the loan terms but not specifying the type of legal instrument.
- The defendant, a real estate broker not admitted to practice law, stated he would prepare the necessary papers and subsequently determined that a trust deed was appropriate.
- On a following Sunday, the defendant brought a trust deed to the Tirheimer home, which they signed before a notary.
- The county recorder rejected the defendant's prepared trust deed for recording.
- The defendant then drafted a mortgage for the parties to cover the transaction.
- The defendant sought to collect $15 for his services, later reduced to $10.
Procedural Posture:
- The defendant was charged with a violation of section 6125 of the Business and Professions Code of the State of California, prohibiting the practice of law without active State Bar membership.
- A jury returned a verdict of guilty against the defendant.
- The trial court entered a judgment of conviction and denied the defendant's motion for a new trial.
- The defendant (appellant) appealed the ensuing judgment and the order denying his motion for a new trial.
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Issue:
Does an unlicensed person who advises individuals on the appropriate type of legal document to execute to secure a loan, and then prepares that document, engage in the unauthorized practice of law in violation of the Business and Professions Code?
Opinions:
Majority - FOX, Acting P. J.
Yes, an unlicensed person who advises individuals on the appropriate type of legal document to execute and then prepares that document engages in the unauthorized practice of law. The court affirmed the defendant's conviction, defining "practice law" broadly to include "legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured." The jury was justified in concluding that the defendant undertook to advise the Tirheimers on the kind of legal document they should execute, going beyond mere clerical work of filling in blanks. The fee charged ($10-$15) reinforced the conclusion that more than clerical services were rendered. The court distinguished this from a permissible clerical service where an individual merely fills in blanks on a form according to information furnished by the parties or acts as a scrivener. The defendant's equal protection argument, based on the Yick Wo case, was rejected because the law protects lawful occupations, not the commission of crimes, and there was no evidence that escrow clerks provided legal advice. The court also reaffirmed that the practice of law does not require a course of conduct but can be established by a single act.
Analysis:
This case significantly broadens the definition of the unauthorized practice of law in California, establishing that advising clients on the specific type of legal instrument to achieve their goals, or drafting such an instrument based on that advice, constitutes practicing law, even if it's a single instance. It clarifies the distinction between providing legal judgment and mere clerical services, setting a precedent that protects the public from unqualified legal assistance. The rejection of the equal protection argument based on alleged unequal enforcement reinforces the principle that criminal acts cannot be justified by claims that others commit similar acts with impunity, thereby bolstering enforcement of unauthorized practice statutes.
