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.