Summary
holding that generally one who acts in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counseling, advising and assisting him in connection with these rights and duties is engaged in the practice of law
Summary of this case from People v. WrightOpinion
No. 20,256.
Decided March 2, 1964. Rehearing denied May 4, 1964.
Action by Denver Bar Association challenging rule adopted by Public Utilities Commission concerning representation of litigants before Commission. Judgment for defendant.
Reversed.
1. ATTORNEYS AT LAW — Practice — Power to Regulate — Supreme Court. Under Art III of the State Constitution, the Supreme Court has the exclusive power to define and regulate the practice of law, there being no authority in these respects in the legislative or executive departments of the government.
2. Power to Regulate — Constitution. In the determination of the qualifications for admission of persons to practice law, and in the regulation and discipline of those so licensed the Supreme Court has been vested by the people through the constitution with the sole power to act.
3. Constitution — Supreme Court — Authority. There is no express language in Art. XXV of the state constitution which derogates from the authority of the Supreme Court to define and regulate the practice of law, and no implied power to define and regulate such practice in derogation of the court's authority is permissible.
4. PUBLIC UTILITIES COMMISSION — Rule Making Power — Practice of Law. The Public Utilities Commission with its rule making power, being a creature of the legislature, does not have the prerogative of superseding the exclusive power of the judiciary to determine what is or what is not the practice of law and to restrict such practice to persons licensed by the Supreme Court as such.
5. Practice — Rule — Character of Act. Whether one, in representing another before the Public Utilities Commission under its Rule 7 (b), is practicing law depends upon the circumstances of the matter there under consideration. The character of the act, rather than that it is performed before the Commission is the factor decisive of whether it constitutes practice of law.
6. ATTORNEYS AT LAW — Public Utilities Commission — Practice Before — Character of Action. Although the Public Utilities Commission is an administrative agency of the legislature its actions would be characterized as judicial where it resolves disputes of adjudicative facts, and persons appearing in representative capacities in respect thereto would be practicing law.
Error to the District Court of the City and County of Denver, Hon. Edward J. Keating, Judge.
Mr. WILLIAM P. WAGGENER, Mr. THOMAS E. CREIGHTON, Mr. PHILIP G. DUFFORD, for plaintiffs in error.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. JOHN J. CONWAY, Assistant, for defendant in error.
THIS case involves the question whether lay persons can practice before the Colorado Public Utilities Commission. The question arose originally before the Commission in hearings conducted by it concerning proposed rules of practice and procedure being considered for adoption. There the Denver and the Colorado Bar Associations, and an attorney, for himself and others, challenged the authority of the Commission to adopt Rule 7 (b), permitting lay persons to act in a representative capacity before that body. Such rule, they asserted, would constitute a usurpation of power vested in the Supreme Court which, alone, has the authority to say who shall and who shall not practice law in this state.
After a consideration of the problem thus presented, the Commission adopted the proposed rules, including the controversial Rule 7 (b). Further administrative process proved ineffectual. The challenge to the Commission's authority to adopt Rule 7 (b) was renewed in certiorari proceedings in the district court in Denver. Since the Commission "is not a court of record," the trial court determined that appearances before it do not constitute the practice of law, and hence, that Rule 7 (b) was valid. Its judgment is brought in question by this writ of error.
Rule 7 (b) provides:
"(b) Who May Represent Parties. Appearances and representation of parties shall be made as follows:
"(1) An individual may appear and be heard in his own behalf.
"(2) A co-partnership may appear and be represented by a co-partner.
"(3) A corporation may appear and be represented by a corporate officer or full-time employee of such corporation.
"(4) A municipal corporation may appear and be represented by a duly authorized officer, agent, or employee of such municipality.
"(5) An unincorporated association may appear and be represented by any bona fide or full-time employee of such association.
"(6) Any party to a proceeding may appear and be represented therein by an attorney-at-law, duly admitted to practice and in good standing, before the Supreme Court of the State of Colorado, and in rate matters, any party may be represented by a practitioner duly admitted to practice before the Interstate Commerce Commission; provided, however, an attorney-at-law, duly admitted to practice before the highest tribunal of a foreign state may appear in proceedings before the Commission if joined of record by duly admitted Colorado counsel."
In 1937 Oppenheimer made the following graphic observation in his essay, "The Supreme Court and Administrative Law," 37 Col. L. Rev. 1:
"More people, it is believed, are directly affected by the processes of administrative boards and quasi-judicial tribunals than by adjudications of the courts. Justice, to the majority of our population, is more apt to mean the fairness of an old age pension or unemployment insurance board than the soundness of a judicial pronouncement. The carfare fixed by a public utility commission or the treatment accorded by a workmen's compensation or old age pension board directly affects the average man, in his own belief, more than the decisions of the Supreme Court.
"This transfer of so much of the functioning of legal machinery to administrative boards is the vital fact of modern jurisprudence."
That which was belief in 1937 has become certainty in the last few decades. As a consequence, the burgeoning growth of administrative law has now shifted "inquiry from the question of the desirability of administrative law to that of control." Geer v. Stathopulos, 135 Colo. 146, 309 P.2d 606.
This Court defers to the concept of the separation of powers of government. Whatever the Commission may do as an arm of the legislature of the state this Court shall readily recognize and uphold. And this Court presumes that the legislature had no intention of infringing upon the Court's authority when it directed the Commission to adopt rules and regulations for the conduct of the Commission's business. C.R.S. '53, 115-6-1. See Sullivan v. Michigan State Board of Dentistry, 268 Mich 427, 256 N.W. 471.
Article III of the Constitution of Colorado distributes the powers of government among "three distinct departments, — the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted." Any exception to the distribution of powers must appear in express terms in the Constitution; implied exceptions are not sanctioned; this is the plain meaning of Article III.
This Court has the exclusive power to define and regulate the practice of law by virtue of this constitutional provision; there is no authority in these respects in the legislative or executive departments. Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; In re Day, 181 Ill. 73, 54 N.E. 646, 50 L.R.A. 519. See Kolkman v. People, 89 Colo. 8, 300 Pac. 575.
In the determination of the qualification for admission of persons to practice law, and in the regulation and discipline of those licensed to practice law, this Court is vested by the people through the Constitution with the sole power to act. Legislation in any of these areas does not add to or detract from the exclusive authority of this Court. Wherever legislation conforms to our authority, it is gratuitous. Legislation tending to limit the scope of that which constitutes the practice of law would be abortive. In re Day, supra; People v. Goodman, 366 Ill. 346, 8 N.E.2d 941, 111 A.L.R. 1; Clark v. Austin, supra; State v. Keller, 16 Wis.2d 377, 114 N.W.2d 796.
Article XXV of the Colorado Constitution does not create a fourth department of government with dominion over the practice of law. It is nothing more than a constitutional extension of the power of the legislature over public utilities. It reads as follows:
"In addition to the powers now vested in the General Assembly of the State of Colorado, all power to regulate the facilities, service and rates and charges therefor, including facilities and service and rates and charges therefor within home rule cities and home rule towns, of every corporation, individual, or association of individuals, wheresoever situate or operating within the State of Colorado, whether within or without a home rule city or home rule town, as a public utility, as presently or as may hereafter be defined as a public utility by the laws of the State of Colorado, is hereby vested in such agency of the State of Colorado as the General Assembly shall by law designate.
"Until such time as the General Assembly may otherwise designate, said authority shall be vested in the Public Utilities Commission of the State of Colorado; provided, however, nothing herein shall affect the power of municipalities to exercise reasonable police and licensing powers, nor their power to grant franchises; and provided, further, that nothing herein shall be construed to apply to municipally owned utilities."
There is no express language in Article XXV which derogates from the authority of this Court to define and regulate the practice of law. And no implied power to define and regulate the practice of law in derogation of the Court's authority is permissible. Kolkman v. People, supra.
From what has been said we conclude that the creature of the legislature, the Commission with its rule-making power, does not in any way have the prerogative of superseding the exclusive power of the judiciary, ultimately residing in this Court, to determine what is or is not the practice of law and to restrict such practice to persons licensed by this Court to serve as lawyers. State v. Keller, supra, People v. Goodman, supra.
Whether one, in representing another before the Commission under Rule 7 (b), is practicing law depends upon the circumstances of the particular case there under consideration. The character of the act done, rather than that it is performed before the Commission, is the factor which is decisive of whether it constitutes the practice of law. People v. Goodman, supra; Hoffmeister v. Tod, (Mo) 349 S.W.2d 5; State ex rel. Johnson v. Childe, 147 Neb. 527, 23 N.W.2d 720; Shortz v. Farrell, 327 Pa. 81, 193 Atl. 20.
Ruling that under all circumstances a lay person could act in a representative capacity before the Commission pursuant to the authority contained in Rule 7 (b) was error; hence the judgment must be reversed.
Although the Commission is an administrative agency of the legislature, People v. Colo. Co., 65 Colo. 472, 178 Pac. 6, nevertheless its actions would be characterized as judicial where it resolves disputes of adjudicative facts, and persons appearing in representative capacities in respect thereto would be practicing law. 1 Davis, Administrative Law Treatise 415, § 703. On the other hand, its actions may be legislative or non-judicial, and persons appearing in representative capacities in respect to these matters would not be practicing law. Ibid. See People v. Colo. Co., supra.
There is no wholly satisfactory definition as to what constitutes the practice of law; it is not easy to give an all-inclusive definition. We believe that generally one who acts in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counselling, advising and assisting him in connection with these rights and duties is engaged in the practice of law. Difficulty arises too in the application of the definition.
As administrative law became more and more a "vital fact of modern jurisprudence," the lines became more clearly drawn between what is and what is not the practice of law in a number of the more familiar areas. This process of drawing lines between what is and is not the practice of law will go on.
It would appear from the decisions that the following would constitute the practice of law before administrative commissions:
1) Where one instructs and advises another in regard to the applicable law on an agency matter so that he may properly pursue his affairs and be informed as to his rights and obligations. Clark v, Austin, supra; Shortz v. Farrell, supra; West Va. State Bar v. Early, 144 W. Va. 504, 109 S.E.2d 420; State v. Keller, supra.
2) Where one prepares for another documents requiring familiarity with legal principles beyond the ken of the ordinary layman. Shortz v. Farrell, supra; State v. Keller, supra; West Va. State Bar v. Earley, supra.
3) Where one prepares for another, for filing before the administrative agency, applications, pleadings, or other procedural papers requiring legal knowledge and technique. Shortz v. Farrell, supra; State ex rel. Johnson v. Childe, supra.
4) Where one appears for another before an administrative tribunal in adversary or public proceedings involving the latter's rights of life, liberty or property according to the law of the land. People v. Goodman, supra; Clark v. Austin, supra; Shortz v. Farrell, supra; West Va. State Bar v. Earley, supra; State v. Keller, supra.
5) Where one, on behalf of another, examines and cross-examines witnesses and makes objections or resists objections to the introduction of testimony, the exercise of which requires legal training, knowledge, and skill. Shortz v. Farrell, supra; State ex rel. Johnson v. Childe, supra.
6) Where one represents another in a rate-making or rate-revision case and the question of deprivation of property without due process of law is present. Jordan v. American Eagle Fire Ins. Co., 169 F.2d 281.
As an arm of the legislature, the Commission may authorize by rule certain things, the doing of which does not constitute the practice of law. Among the more common of these activities, in which laymen may represent others, are:
1) The completion of forms which do not require any knowledge and skill beyond that possessed by the ordinarily experienced and intelligent layman. Shortz v. Farrell, supra; West Va. State Bar v. Earley, supra. See Conway Bogue v. Bar Ass'n, 135 Colo. 398, 312 P.2d 998.
2) Representation of another in a hearing relating to the making or revision of rates, except as noted in the foregoing item No. 6. Denver v. Public Utilities Commission, 129 Colo. 41, 266 P.2d 1105.
3) Performing the services of engineers, experts, accountants and clerks. Refining Co. v. Public Utilities, 68 Colo. 137, 187 Pac. 1082; "Administrative Agencies and Unauthorized Practice of Law." by F. Trowbridge von Baur, 48 A.B.A.J. 715.
4) Acting in an agency proceeding involving the adoption of a rule of future action which affects a group and where no vested rights of liberty or property are at stake. Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 Led. 892; 73 C.J.S., Public Administrative Bodies and Procedure, § 130, pages 452 and 453; Oppenheimer, "Administrative Law," 2 Md. L. Rev. 185, 204 (1938).
Of course, it has been held time and again that a natural person may appear in his own behalf and represent himself, notwithstanding he may not be a lawyer, Clark v. Austin, supra; West Va. Bar Ass'n v. Earley, supra.
As to matters in which no legal principle is involved and the subject matter of the hearing has a value or represents an amount insufficient to warrant the employment of an attorney, permission is granted until withdrawn by this Court to permit laymen to represent others in accordance with Rule 7 (b), even though such representation may constitute practicing law. State v. Keller, supra.
For the reasons herein expressed, we reverse the judgment of the trial court.
MR. JUSTICE MOORE concurs in part and dissents in part.
MR. JUSTICE HALL and MR. JUSTICE PRINGLE dissent.