In the case below, the New York Court of Appeals turned back the efforts of New York lawyers to ban a self-help probate avoidance book, holding that the publication and distribution of self-help law materials, including forms and instructions for filling them in, was constitutionally protected activity under the First Amendment and therefore not subject to the New York UPL laws.
The dissenting opinion was adopted byb the New York Court of Appeals. Therefore, only the dissent is shown.
MATTER OF N.Y. CO. LAWYERS' ASSN. v. DACEY, 28 A.D.2d 161 [1st Dept 1967] 283 N.Y.S.2d 984 In the Matter of NEW YORK COUNTY LAWYERS' ASSOCIATION, Respondent, v. NORMAN F. DACEY et al., Appellants. Appellate Division of the Supreme Court of the State of New York First Department October 24, 1967. Page 162 Appeal from the Supreme Court, New York County, CHARLES MARKS, J. James F. Dwyer of counsel (Jean C. Lucas and Robert M. Callagy with him on the brief; Satterlee, Warfield & Stephens, attorneys), for Crown Publishers, Inc., and others, appellants. Arthur Stephen Penn for Norman F. Dacey and another, appellants. Daniel M. Shientag for respondent. STEVENS, J.P. (dissenting). I dissent, vote to reverse and dismiss the petition. This is an appeal from an order and decree entered September 12, 1967 adjudging appellants Norman F. Dacey and Norman F. Dacey doing business as National Estate Planning Council, guilty of criminal contempt of court by reason of the unauthorized practice of the law. Dacey was fined $250 and upon default in payment was to be committed for 30 days. Special Term also found appellants Crown Publishers Inc., Doubleday & Co., Inc. and Brentano's Inc. were likewise engaged in the unauthorized practice of law. They, however, were not held in criminal contempt. All were enjoined from continuation of certain acts as set forth in the order and decree. In 1965 Norman F. Dacy (Dacey) drafted and prepared a series of forms of various instruments consisting of inter Page 172 vivos trust, wills and related documents. These forms were incorporated into a book entitled "How To Avoid Probate!" which Dacey copyrighted under the name Norman F. Dacey doing business as National Estate Planning Council, a trade name. The book itself consists of approximately 55 pages of text and approximately 310 pages of forms. The petitioner, the New York County Lawyers' Association, brought a proceeding under subdivision B of section 750 Jud. of the Judiciary Law to enjoin publication of the book. That section so far as pertinent provides "[T]he supreme court has power under this section to punish for a criminal contempt any person who unlawfully practices or assumes to practice law; and a proceeding under this subdivision may be instituted on the court's own motion or on the motion of any officer charged with the duty of investigating or prosecuting unlawful practice of law, or by any bar association incorporated under the laws of this state." Therefore the petitioner is clearly entitled to bring the proceeding. Dacey, a Connecticut resident, was served in Connecticut under CPLR 302 N.Y.C.P.L.R., our long-arm statute, on the theory that he allegedly committed tortious acts in New York in writing and causing the book to be published and advertised in New York. It might be noted at this point that Dacey had previously been enjoined in Connecticut (see Grievance Committee of Bar of Fairfield County v. Dacey, 154 Conn. 129, 222 A.2d 339, rehearing den. 387 U.S. 938). That injunction was the outgrowth of a 30-page booklet written by Dacey describing a so-called "Dacey Trust", the first six pages of which contained general information about the history and uses of the inter vivos and testamentary trusts and tax information. The balance of the booklet was a description of the Dacey trust and its claimed advantages. The booklet was supplied to prospective customers who met with Dacey and whom he advised and supervised in the filling of the blanks in the forms, and in some instances Dacey supplied forms which varied somewhat from those in the book. Here the claim of unauthorized practice of law rests upon the writing and publication of this book of which some 600,000 copies have been sold. Petitioner complains also of the advertising which appears on the jacket of the book. The advertising in question refers to Dacey as one of America's leading professional estate planners. The book, as the title indicates, attempts to inform the purchaser how to avoid probate. Petitioner asserts that by the appellants' representations to the public they were selling legal advice and they were representing that Dacey was an expert qualified and competent Page 173 to give such legal advice. Petitioner alleges the scheme and plan created by Dacey, and carried into effect by Crown Publishers Inc., who published the book, and Doubleday & Co., Inc. and Brentano's Inc., who sold and distributed the book, constitute the unauthorized practice of law; that Crown, Doubleday and Brentano's are equally responsible because they have been engaged in aiding and abetting the unauthorized practice of law and that an injunction may issue under subdivision B of section 750 Jud. of the Judiciary Law, which section they assert is clear and unambiguous. Dacey contends that his acts cannot, as a matter of law, constitute the unauthorized practice of law in the absence of proof of the giving of specific advice to a specific individual about his particular problems; that the publication and distribution of a book containing forms is not the equivalent of giving specific advice to specific individuals about their particular problems, and does not constitute the unauthorized practice of law. The defendants urge several defenses based on contentions that subdivision B of section 750 violates different articles of the Federal Constitution. In the view taken it is not necessary to consider these contentions, and attention is directed only to the question of whether the publication of this book constitutes practice of the law within the meaning of the section. Stripped of the arguments and the contentions of the various parties, the question may be briefly and baldly expressed: Does the writing, publication, advertising, sale and distribution of "How To Avoid Probate!" constitute the unauthorized practice of law within the meaning of subdivision B of section 750? It cannot be claimed that the publication of a legal text which purports to say what the law is amounts to legal practice. And the mere fact that the principles or rules stated in the text may be accepted by a particular reader as a solution to his problem does not affect this. Courts and lawyers continuously use and cite texts for this very purpose. So also with forms. The publication of a multitude of forms for all manner of legal situations is a commonplace activity and their use by the Bar and the public is general. In fact, many statutes and court rules contain the forms to be used in connection with them. Apparently it is urged that the conjoining of these two, that is, the text and the forms, with advice as to how the forms should be filled out, constitutes the unlawful practice of law. But that is the situation with many approved and accepted texts. Page 174 Dacey's book is sold to the public at large. There is no personal contact or relationship with a particular individual, Nor does there exist that relation of confidence and trust so necessary to the status of attorney and client. This is the essential of legal practice — the representation and the advising of a particular person in a particular situation. The lectures of a law school professor are not legal practice for the very reason that the principles enunciated or the procedures advised do not refer to any activity in immediate contemplation though they are intended and conceived to direct the activities of the students in situations which may arise. Moreover, there is no claim here as there was in the Connecticut proceeding (Grievance Committee of Bar of Fairfield County v. Dacey, 154 Conn. 129, 222 A.2d 339, rehearing den. 387 U.S. 938) that Dacey, in effect, prepared instruments tailored to the particular needs of his customers. Special Term referred to and placed a measure of reliance on the determination of the Connecticut court in making its own determination. In the Connecticut proceeding against Dacey it was determined that in addition to the preparation of a 30-page booklet Dacey prepared trusts and wills adapted to clients' needs providing, at the same time, for large potential profits to himself in the sale of Wellington Fund shares on which he received a 6% commission. The court declared, when Dacey prepared wills and trusts for his customers and advised, as to the desirability in their circumstances, of the specific wills or trusts so prepared for them he engaged in the illegal practice of law. Certainly that case may readily be distinguished. At most the book assumes to offer general advice on common problems, and does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person. "How To Avoid Probate!" may be purchased by anyone willing to pay the purchase price. One is free to purchase or not as he wills. There is no personal reliance upon the selection and judgment of Dacey in the discretionary choice of a form adapted to the customer's needs. It is recognized that rules for the admission of persons to the practice of law, and rules or canons regulating their conduct thereafter, are "to protect the public from ignorance, inexperience and unscrupulousness" (People v. Alfani, 227 N.Y. 334, 339). In this way, hopefully, the unqualified are excluded. The prohibition against the unauthorized practice Page 175 of law has a like objective. "How To Avoid Probate!" has been published and freely sold for more than one year. There is no showing in this record that this book has exploited the public or led its members astray improperly or incorrectly. In fact there is no factual evidence submitted as to the effect of the publication and sale of the book. In order to sustain petitioner's position one has to conclude that the book by its very nature comprises the unauthorized practice of law. "How To Avoid Probate!" is, in one sense, a do-it-yourself kit. To that extent it could encroach upon the preserves of lawyers, though the present record does not give evidence of that fact. Every individual has a right to represent himself if he chooses to do so, and to assume the risks attendant upon what could prove a precarious undertaking. Those of sufficient substance to require trusts or wills for the most part are persons of some common sense and, normally, would hardly be expected to rely completely and unquestioningly upon a mass-printed form, even with accompanying instructions. However, they have a right to do so. This book was printed prior to February, 1966 by a Denver, Colorado, printer and sold over 10,000 copies. We are told that to date it has sold over 600,000 copies. There would hardly be dispute that book printing and sale per se is not the practice of law. Similarly, the printing and sale of forms, including those subject to the injunction, would not per se constitute the practice of law. What then distinguishes "How To Avoid Probate!" so as to bring it within the prohibition? With reference to the advertising and the representations which appear on the covers of the book, if such advertising be false or fraudulent the Penal Law affords a remedy (revised Penal Law, § 190.20 Penal, formerly Penal Law, § 421 et seq.). Of course, the fact that an act might be a violation of Penal Law would would not necessarily exclude it from consideration as a component part of an act otherwise not criminal. Concedely the practice of law "manifestly includes the drafting of many documents which create legal rights. It does not follow, however, that the drafting of all such documents is always the practice of law" (Oregon State Bar v. Security Escrows, 233 Or. 80, 86). "The practice of law is not confined to court work. It embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, to conveyancing, the preparation of legal instruments of all kinds, the giving Page 176 of advice to clients, and in general all action taken by them in matters connected with the law" (3 N.Y. Jur., Attorney and Client, § 1; People v. Alfani, 227 N.Y. 334, supra). In all the cases where there was a holding of unlawful practice of law there was some employment, express or implied, resulting either from contract, designation or assignment. (See People v. Alfani, supra.) It would seem logical that for one to be guilty of the unauthorized practice of law he must improperly or illegally have created or assumed such a relationship. That is not the situation before us. The First and Fourteenth Amendments to the Constitution of the United States, and section 8 of article I of the Constitution of the State of New York refer to and deal with the right of freedom of speech and of the press (Grosjean v. American Press Co., 297 U.S. 233; Near v. Minnesota, 283 U.S. 697; see, also, 4 Blackstone, Commentaries [11th ed., 1791], pp. 150-152). With respect to the publisher and distributors, the order appealed from restrains them from practicing law or holding themselves out to be qualified to practice law. It also imposes specific restraints with respect to any "forms", writings or documents. Nowhere in the order is the book "How To Avoid Probate!" mentioned. The order imposes prior restraints, and imposes also an obligation of examination and determination with respect to printing and distribution of material which, reasonably, cannot be met. There is no precise definition or even clear indication of what material falls within the prohibited category. The publisher and distributors act at their peril in determining what does or does not contravene the terms of the order. They are, in effect, saddled with a foreknowledge of and responsibility for the contents of every book published or distributed by them. If the advertisements are false and misleading laws are available to punish and prevent their continuance. Certainly, no clear and present danger of public corruption or public misleading is shown to exist. The line between what may be characterized as "puffing" and intentional misleading is sometimes difficult to distinguish. But on this record I would vacate the order in its entirety as to the publishers (cf. Smith v. California, 361 U.S. 147; New York Times Co. v. Sullivan, 376 U.S. 254). Dacey's criticism of what he considers the high cost of probate is a right of speech to which he is entitled. Of course if the exercise of Dacey's right to freedom of speech by this publication violates reasonable standards erected for the protection of Page 177 society, or of important interests of society, his right could be subordinated for the common good and the protection of the whole. In my view this book may not be so considered. The dangerous tendency or clear and present danger doctrines (see Gitlow v. New York, 268 U.S. 652; Whitney v. California, 274 U.S. 357; Herndon v. Lowry, 301 U.S. 242; Terminiello v. Chicago, 337 U.S. 1) are not here applicable. The book is not of the kind or quality to provoke disorder or incite one to public disturbance. In fact there is no substantive evil imminently threatening the public. That it is not palatable to a segment of society which conceives it as an encroachment of their special rights hardly justifies banning the book. "[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions" (Bridges v. California, 314 U.S. 252, 270). Free and open discussion or even controversy could lead to reforms, if needed, or improvement where desirable. Books purporting to give advice on the law, and books critical of law and legal institutions have been and doubtless will continue to be published. Legal forms are available for purchase at many legal stationery stores. Unless we are to extend a rule of suppression beyond the obscene, the libelous, utterances of or tending to incitement, and matters similarly characterized, there is no warrant for the action here taken. The order appealed from should be vacated on the law and the petition dismissed, without costs. CAPOZZOLI, TILZER and McNALLY, JJ., concur with EAGER, J.; STEVENS, J.P., dissents in opinion. Judgment affirmed as to respondents Norman F. Dacey and Norman F. Dacey doing business as National Estate Planning Council, with $50 costs and disbursements to the petitioner. Under the circumstances, however, the terms of the judgment of the court insofar as it is directed against the respondents book publishers, distributors and sellers is limited to the enjoining of the acts and conduct on their part tending to promote the unlawful practice of law by Dacey in this State. Therefore, the injunctive provisions of said judgment, as affecting the respondents Crown Publishers, Inc., Doubleday & Co. Inc. and Brentano's Inc. are modified to restrain them from the further publication, advertisement, distribution and sale in New York of the present book "How To Avoid Probate!", and of any modification thereof which purports to induce lay persons to rely upon the legal advice or expertise of Dacey in the selection, use, completion or execution of legal forms, instruments or writings Page 178 for the purpose of establishing any jural relationship or effecting the transfer or disposition of property; and said judgment is otherwise affirmed as to said last-named respondents, without costs and without disbursements. Settle order on notice.