12-5-101

TITLE 12 PROFESSIONS AND OCCUPATIONS

ARTICLE 5 Attorneys-at-law

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12-5-101. License to practice necessary.

No person shall be permitted to practice as an attorney- or counselor-at-law or to commence, conduct, or defend any action, suit, or plaint in which he is not a party concerned in any court of record within this state, either by using or subscribing his own name or the name of any other person, without having previously obtained a license for that purpose from the supreme court. Said license shall constitute the person receiving the same an attorney- and counselor-at-law and shall authorize him to appear in all the courts of record in this state and there to practice as an attorney- and counselor-at-law according to the laws and customs thereof for and during his good behavior in said practice, and to demand and to receive all such fees as are established for any services which he renders as an attorney- and counselor-at-law in this state. Nothing in this section shall be construed to require membership in a professional organization or bar association as a prerequisite to licensure.

Source: L. 1861: p. 197, § 1. R.S. p. 65, § 1. G.L. § 16. G.S. § 69. L. 07: p. 220, § 1. R.S. 08: § 229. C.L. § 5997. CSA: C. 14, § 1. CRS 53: § 12-1-1. C.R.S. 1963: § 12-1-1. L. 79: Entire section amended, p. 443, § 1, effective April 25.

Cross references: For statutory privilege between attorney and client, see § 13-90-107 (1) (b); for rules of professional conduct governing confidentiality of information, see the Colorado Rules of Professional Conduct, Rule 1.6.

ANNOTATION

Law reviews: For article, “The Interprofessional Code”, see 15 Colo. Law. 1795, 1977, and 2183 (1986) and 16 Colo. Law. 31 (1987); for article, “The Pros and Cons of a Captive Legal Malpractice Insurer”, see 16 Colo. Law. 244 (1987); for article, “Attorney Liability to Non-Clients” see 17 Colo. Law. 1537 (1988).

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 7 Am. Jur.2d, Attorneys at Law, § 2.

C.J.S. See 7 C.J.S., Attorney and Client, §§ 6, 11, 12; 53 C.J.S., Licenses, §§ 6-10.

Law reviews. For article, “Justice Court Practice by the Laity”, see 9 Dicta 65 (1932). For note, “May an Attorney Unlicensed in Colorado Incorporate a Company Here?”, see 9 Rocky Mt. L. Rev. 285 (1937). For article, “Statutes and Cases Concerning Unauthorized Practice of Law in Colorado”, see 24 Dicta 257 (1947).

It is within the authority of the supreme court to promulgate rules governing the admission and regulation of lawyers. An attorney licensed to practice law in another state may not engage in the practice of law in Colorado without obtaining a license or authorization from the supreme court. Unauthorized Prac. of Law v. Bodhaine, 738 P.2d 376 (Colo. 1987).

II. ATTORNEY-CLIENT RELATIONS.

Annotator’s note. For other annotations concerning attorney-client relations, see the annotations for the Colorado Rules of Professional Conduct contained in the appendix to chapters 18 to 20 of the Colorado Rules of Civil Procedure.

An attorney must be held to the exercise of a reasonable degree of care and skill, and to possess the knowledge requisite to a proper performance of the duties of his profession, failing which, he must respond in damages to his client to the extent of the injury, caused by such failure. Radetsky v. Montgomery, 94 Colo. 411, 30 P.2d 858 (1934).

The highest degree of fairness and good faith is required from an attorney. Lewis v. Helm, 40 Colo. 17, 90 P. 97 (1907).

The courts will closely scrutinize the dealings between attorneys and their clients, and will relieve the latter from any undue consequences resulting from them whenever the good faith of the contract does not clearly appear. Lewis v. Helm, 40 Colo. 17, 90 P. 97 (1907).

Contracts with the client are construed most favorably to the interest of the client. Keeler v. Hoyt, 57 Colo. 120, 140 P. 191 (1914).

The attorney is held to a strict compliance with his undertaking. Keeler v. Hoyt, 57 Colo. 120, 140 P. 191 (1914).

The plaintiff is entitled to dismiss his action even though he has stipulated with his attorney that the latter shall receive, as his fee, a share of whatever is obtained by the litigation or the settlement thereof. McPhail v. Spore, 62 Colo. 307, 162 P. 151 (1916).

If the attorney is entitled to an action for the discontinuance of which he complains he is not to recover under the contract. McPhail v. Spore, 62 Colo. 307, 162 P. 151 (1916).

An attorney employed merely to try a litigated case has no implied authority to prosecute an appeal or writ of error or do anything on behalf of his client looking to the review of the judgment. Tobler v. Nevitt, 45 Colo. 231, 100 P. 416, (1909).

A recital in the record that the attorney appeared for defendant is only prima facie evidence of authority to appeal. Great W. Mining Co. v. Woodmas of Alston Mining Co., 12 Colo. 46, 20 P. 771 (1888).

It is within the general powers of an attorney at law to submit the suit of his client to arbitration. Lee v. Grimes, 4 Colo. 185 (1878).

An attorney has no authority to waive the statute of limitations for his client. Ferris v. Curtis, 53 Colo. 340, 127 P. 236 (1912).

It is the duty of counsel in a criminal case to watch the progress of the trial, be informed as to what forms of verdict are submitted to the jury, and request proper forms. Loos v. People, 84 Colo. 166, 268 P. 536 (1928).

A regularly licensed attorney must be held to know better than to inject into a legal argument irrelevant and scandalous denunciations of his opponent. People ex rel. Skelton v. Brown, 17 Colo. 431, 30 P. 338 (1892).

A legal argument may consist of an appeal to reason or authority. People ex rel. Skelton v. Brown, 17 Colo. 431, 30 P. 338 (1892).

The advocate, either orally or in writing, may freely exercise his talents, and employ all the resources of his learning and logic which the scope of the questions afford. People ex rel. Skelton v. Brown, 17 Colo. 431, 30 P. 338 (1892).

The advocate is not at liberty to go outside the record for purposes of scandal and abuse. People ex rel. Skelton v. Brown, 17 Colo. 431, 30 P. 338 (1892).

In an action against an attorney for damages for his alleged negligence in failing to collect an amount due on account stated, the debtor being insolvent nothing could be collected from her, therefore plaintiff suffered no damage even if the attorney was negligent. Lawson v. Sigfrid, 83 Colo. 116, 262 P. 1018 (1927).

In the absence of special authorization an attorney at law cannot accept anything but money in payment of a promissory note placed in his hands for collection, and, if he agrees otherwise, the agreement is void and not binding upon the client. McCaffrey v. Mitchell, 98 Colo. 467, 56 P.2d 926, 57 P.2d 900 (1936).

Where an attorney advised his client as to the necessity of purchasing an outstanding title against lands claimed by her, and she refused to do so, whereupon the attorney purchased such title himself, he does not hold the title in trust for the client. Webber v. Wannemaker, 39 Colo. 425, 89 P. 780 (1907).

III. CONSTRUCTION OF LICENSE PROVISION.

Law reviews. For comment on United Sec. Corp. v. Pantex Pressing Mach., Inc., appearing below, see 8 Rocky Mt. L. Rev. 289 (1936).

This section is directed towards persons unlicensed to practice law appearing in courts of record. United Sec. Corp. v. Pantex Pressing Mach., Inc., 98 Colo. 79, 53 P.2d 653 (1935).

Under this section proceedings instituted and prosecuted by an unlicensed attorney are without authority, and a judgment resulting from such proceedings is void. Bennie v. Triangle Ranch Co., 73 Colo. 586, 216 P. 718 (1923).

The license furnishes the evidence that the law demands for the security of the public first that the holder thereof is a person of probity of character, and second, that he is skilled in the law, and, therefore, qualified to practice as an attorney and counselor. Hittson v. Browne, 3 Colo. 304 (1877).

In an action by an attorney for his fee, where no issue is raised by the pleadings on the point of plaintiff’s right to practice law, evidence that he was not licensed to practice in the state at the time the services were rendered is inadmissible. Bachman v. O’Reilly, 14 Colo. 433, 24 P. 546 (1890).

The license to an attorney is “for and during his good behavior”, and this condition would be implied, or attached, in the absence of any statute upon that subject. People ex rel. Bar Ass’n v. Weeber, 26 Colo. 229, 57 P. 1079 (1899).

The supreme court, having power by express law to grant a license to practice law, has an inherent right to see that the license is not abused or perverted to a use not contemplated by the grant. People ex rel. Attorney Gen. v. MacCabe, 18 Colo. 186, 32 P. 280 (1893).

Where an attorney from another state having settled here and applied for license, was advised by the district judge that he was entitled to appear in the courts, though the license had not yet issued, and acting upon this advice, and in constant expectation of receiving his license, he accepted employment as an attorney, but upon being informed that an information in contempt had been exhibited against him, he ceased to practice or hold himself out as an attorney, it was held that, though guilty of a contempt, the case did not require the imposition of any penalty. People ex rel. Bar Ass’n v. Ellis, 44 Colo. 176, 96 P. 783 (1908).

On the question whether one who was not a licensed attorney at the time of his election was eligible to the office of district attorney, the court was equally divided. People v. Hallett, 1 Colo. 352 (1871).

Applied in People ex rel. Bar Ass’n v. Taylor, 56 Colo. 441, 138 P. 762 (1914).

IV. PRACTICING LAW.

A. In General. There is no all inclusive definition of what constitutes the practice of law. Denver Bar Ass’n v. Pub. Utils. Comm’n, 154 Colo. 273, 391 P.2d 467 (1964).

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. Denver Bar Ass’n v. Pub. Utils. Comm’n, 154 Colo. 273, 391 P.2d 467 (1964).

Services of an attorney not licensed in Colorado are compensable as attorney fees where no court appearances made and the work performed consisted of obtaining a variance from a municipal zoning code. Catoe v. Knox, 709 P.2d 964 (Colo. App. 1985).

Consulting services performed by an out-of-state lawyer do not constitute unauthorized practice of law under canon 3 of the Colorado code of professional responsibility and therefore may be compensated as attorney fees. Dietrich Corp. v. King Resources Co., 596 F.2d 422 (10th Cir. 1979).

The collection agency was not practicing law where it had not agreed to furnish, nor had it furnished, legal advice or legal services to the creditors, but, rather, as assignee of the accounts and notes, it was the one entitled to bring the action to collect alleged indebtednesses, and it engaged its own counsel. Thibodeaux v. Creditors Serv., Inc., 191 Colo. 215, 551 P.2d 714 (1976).

An independent civil action is not the only means by which an attorney can enforce the statutory charging lien. Gee v. Crabtree, 192 Colo. 550, 560 P.2d 835 (1977).

General partners appearing pro se may not represent partnership. A partnership must be considered as an entity separate and apart from the general partners for purposes of defining parties who may appear for others in courts of record. E & A Assoc. v. First Nat. Bank of Denver, 899 P.2d 243 (Colo. App. 1994).

Preparation and submission of pleadings, the cross-examination of witnesses in a trial court, and presentation of argument to the court all constitute the practice of law. People v. LaPorte Church of Christ, 830 P.2d 1150 (Colo. App. 1992).

A pastor who is not an attorney is prohibited from representing in court the church which he pastors. Preparation and submission of pleadings, cross-examination of witnesses, and presentation of argument to the court constitutes the unauthorized practice of law. People v. LaPorte Church of Christ, 830 P.2d 1150 (Colo. App. 1992).

Pastor who was neither a corporate officer nor an attorney could not represent defendant church on appeal from an order assessing fees for violating the financial disclosure requirements of the Colorado Reform Act under alternate theories that defendant church was a defacto corporation or an unincorporated association. People v. LaPorte Church of Christ, 830 P.2d 1150 (Colo. App. 1992). B. Practicing Law Before Administrative Commission.

Law reviews. For note, “May a Layman Appear Before the Colorado Public Utilities Commission”, see 9 Rocky Mt. L. Rev. 188 (1937).

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. (2) Where one prepares for another documents requiring familiarity with legal principles beyond the ken of the ordinary layman. (3) Where one prepares for another, for filing before the administrative agency, applications, pleadings, or other procedural papers requiring legal knowledge and technique. (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. (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. (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. Denver Bar Ass’n v. P.U.C., 154 Colo. 273, 391 P.2d 467 (1964).

As an arm of the general assembly, the public utilities commission may authorize by rule certain things, the doing of which does not constitute the practice of law. Denver Bar Ass’n v. P.U.C., 154 Colo. 273, 391 P.2d 467 (1964).

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. (2) Representation of another in a hearing relating to the making or revision of rates, except where the question of deprivation without due process of law is present. (3) Performing the services of engineers, experts, accountants and clerks. (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. Denver Bar Ass’n v. P.U.C., 154 Colo. 273, 391 P.2d 467 (1964).

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 the supreme court to permit laymen to represent others in accordance with rule 7(b) of the public utilities commission even though such representation may constitute practicing law. Denver Bar Ass’n v. P.U.C., 154 Colo. 273, 391 P.2d 467 (1964).

Although the public utilities commission is an administrative agency of the general assembly, 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. Denver Bar Ass’n v. P.U.C., 154 Colo. 273, 391 P.2d 467 (1964).

The public utilities commission’s actions may be legislative or nonjudicial, and persons appearing in representative capacities in respect to these matters would not be practicing law. Denver Bar Ass’n v. P.U.C., 154 Colo. 273, 391 P.2d 467 (1964).

Whether one in representing another before the public utilities commission under its rule 7(b), is practicing law depends upon the circumstances of the particular case there under consideration. Denver Bar Ass’n v. P.U.C., 154 Colo. 273, 391 P.2d 467 (1964).

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. Denver Bar Ass’n v. P.U.C., 154 Colo. 273, 391 P.2d 467 (1964).

A ruling that under all circumstances a lay person could act in a representative capacity before the commission pursuant to the authority contained in its rule 7(b) was error and the judgment was reversed. Denver Bar Ass’n v. P.U.C., 154 Colo. 273, 391 P.2d 467 (1964).

A natural person may appear in his own behalf and represent himself, notwithstanding he may not be a lawyer. Denver Bar Ass’n v. P.U.C., 154 Colo. 273, 391 P.2d 467 (1964).

Generally, a corporation may appear in a court of record only through an attorney. Subject to certain exceptions, proceedings commenced or prosecuted and pleadings filed by a corporation without an attorney are a nullity and will be stricken. In re Estate of Nagel, 950 P.2d 693 (Colo. App. 1997).

Pleadings executed and filed by a non-attorney employee on behalf of a corporation are void as a general rule; there is no statutory exception to the general rule, and the court declined to create a judicial exception. In re Estate of Nagel, 950 P.2d 693 (Colo. App. 1997). C. Drafting Legal Documents. The drafting of documents, when merely incidental to the work of a distinct occupation, is not the practice of law, although the documents have legal consequences. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

There are instruments that no one but a well-trained lawyer should ever undertake to draw. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

There are other documents common in the commercial world, and fraught with substantial legal consequences, that lawyers seldom are employed to draw, and that in the course of recognized occupations other than the practice of law are often drawn by laymen. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The actual practices of the community have an important bearing on the scope of the practice of law. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

When a person who gives legal advice to those for whom he draws instruments, or holds himself out as competent to do so, does work of a legal nature, when the instruments he prepares either define, set forth, limit, terminate, specify, claim or grant legal rights. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The drawing of wills, as a practice, is the practice of law. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

A layman or a corporation may prepare instruments to which he or it is a party without being guilty of the unauthorized practice of law. Title Guar. Co. v. Denver Bar Ass’n, 135 Colo. 423, 312 P.2d 1011 (1957).

A person who is not a member of the bar may draw instruments such as simple deeds, mortgages, promissory notes, and bills of sale when these instruments are incident to transactions in which such person is interested, provided no charge is made therefor. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The preparation of receipts and options, deeds, promissory notes, deeds of trust, mortgages, releases of encumbrances, leases, notice terminating tenancies, demands to pay rent or vacate by completing standard and approved printed forms, coupled with the giving of explanation or advice as to the legal effect thereof, constitutes the practice of law. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Preparation of closing documents, real estate deeds, releases, deeds of trust, and promissory notes, where title insurance is not applied for or written has nothing whatsoever to do with the business of abstracting or insuring titles to real estate. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Preparation of closing documents, real estate deeds, releases, deeds of trust, and promissory notes constitutes the practice of law and a power not granted to title insurance companies expressly or by implication under the corporation laws of this state. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Preparation of closing documents, real estate deeds, releases, deeds of trust, and promissory notes is not necessary to the abstract or title insurance business, it is a separate, distinct and other business, much of which constitutes practice of law. Title Guar. Co. v. Denver Bar Ass’n, 135 Colo. 423, 312 P.2d 1011 (1957).

It would not be in the interest of the public welfare to restrain brokers from drafting the ordinary instruments necessary to effectuate the closing of the ordinary real estate transaction in which they are acting. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Ordinary conveyancing, part of the every day business of the realtor, may also be done by others without wrongful invasion of the lawyers’ field and consequently is something of which the legal profession cannot claim that the public welfare requires restraint by judicial decree. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

V. DISBARMENT FOR MISBEHAVIOR.

Annotator’s note. For other annotations concerning the disbarment of attorneys, see the annotations for chapter 20 of the Colorado Rules of Civil Procedure and for the Code of Professional Responsibility contained in the appendix to chapters 18 to 20 of the Colorado Rules of Civil Procedure.

While a lawyer is admitted into a federal court by way of a state court, he is not automatically sent out of the federal court by the same route. Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).

The two judicial systems of courts, the state judicatures and the federal judiciary, have autonomous control over the conduct of their officers, among whom, in the present context, lawyers are included. Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).

The federal courts do not have jurisdiction to review an order of the Colorado supreme court disbarring an attorney in that state for personal and professional misconduct. Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).

The federal courts have no jurisdiction to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties, including disbarment proceedings. Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).

The limits of review of a disbarment by the Colorado supreme court are violations, in the course of disbarment proceedings, of the due process or equal protection clauses of the fourteenth amendment, and a petition for a writ of certiorari to the supreme court of the United States is the only method by which review may be had. Gately v. Sutton, 310 F.2d 107 (10th Cir. 1962).

VI. RESTRAINING ILLEGAL PRACTICE OF LAW.

Law reviews. For article, “Unauthorized Practice of Law”, see 10 Dicta 284 (1933).

Annotator’s note. For other annotations concerning the unauthorized practice of law, see the annotations for Chapter 19 of the Colorado Rules of Civil Procedure and for the Colorado Rules of Professional Conduct contained in the appendix to chapters 18 to 20 of the Colorado Rules of Civil Procedure.

Duly licensed members of the bar may invoke the jurisdiction of the courts to restrain the illegal practice of law by others. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Attorneys, as officers of the court, may, both for themselves and all the affected members of their profession, institute and maintain a suit to challenge or enjoin the unlawful intrusion into their office and professional field by one who is not licensed to do so. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The fact that no property or pecuniary interest of the plaintiff is involved is not an answer to a suit for an injunction to enjoin the practice of a profession without a license, where the action is in behalf of the public. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

In general a court of equity will grant an injunction only where there is eminent danger or irreparable injury or damage to the plaintiff. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

In order to restrain an unlicensed person from practicing a profession it is not necessary to prove irreparable injury or the threat thereof, where the suit is in behalf of the public. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Plaintiffs, the Denver and Colorado bar associations, the chairmen of the unauthorized practices committee of each association and licensed attorneys who appear for themselves and all other licensed attorneys and on behalf of the public are entitled to an injunction to prevent the unlawful intrusion into their office and professional field of defendant. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

In such a case, the extent of the damage to the property right is unimportant. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The existence or threat of real damage is enough to warrant relief. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

12-5-112

TITLE 12 PROFESSIONS AND OCCUPATIONS

ARTICLE 5 Attorneys-at-law

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12-5-112. Practicing law without license deemed contempt.

Any person who, without having a license from the supreme court of this state so to do, advertises, represents, or holds himself out in any manner as an attorney, attorney-at-law, or counselor-at-law or who appears in any court of record in this state to conduct a suit, action, proceeding, or cause for another person is guilty of contempt of the supreme court of this state and of the court in which said person appears and shall be punished therefor according to law. Nothing in this section shall prevent the special admission of counselors residing in other states, as provided in section 12-5-113.

Source: L. 05: p. 157, § 1. R.S. 08: § 251. C.L. § 6017. CSA: C. 14, § 21. CRS 53: § 12-1-17. C.R.S. 1963: § 12-1-17.

ANNOTATION

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 7 Am. Jur.2d, Attorneys at Law, § 53.

C.J.S. See 7 C.J.S., Attorney and Client, §§ 30, 32, 40-42.

Law reviews. For article, “Justice Court Practice by the Laity”, see 9 Dicta 65 (1932). For article, “Who May Practice, and What Constitutes the Practice of Law”, see 9 Dicta 251 (1932). For article, “Effective and Ethical Use of Legal Assistants”, see 15 Colo. Law. 659 (1986).

This section is not obnoxious to § 21 of art. V, Colo. Const., providing that no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title. People ex rel. Colo. Bar Ass’n v. Erbaugh, 42 Colo. 480, 94 P. 349 (1908).

Applied in Unauthorized Practice of Law Comm. v. Grimes, 654 P.2d 822 (Colo. 1982); Holter v. Moore & Co., 702 F.2d 854 (10th Cir.), cert. denied, 464 U.S. 937, 104 S. Ct. 347, 78 L. Ed.2d 313 (1983); in Unauthorized Prac. of Law Comm. v. Grimes, 759 P.2d 1 (Colo. 1988).

II. JUDICIAL DEPARTMENT CONTROLS PRACTICE OF LAW.

It is inherent in the judicial department of government under the constitution to control the practice of the law, the admission to the bar of persons found qualified to act as attorneys at law and the removal from that position of those once admitted and found to be unfaithful to their trust. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

While the judicial department cannot be circumscribed or restricted in the performance of these duties, appropriate and essential assistance in discharging them may be afforded by the enactment of statutes. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

As a general proposition, valid permission to practice law cannot be given by the general assembly except subject to the requirements for admission to the bar established by the judicial department. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

This section is not a grant of power to the supreme court or a limitation upon its inherent powers. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The judiciary has inherent and plenary powers, with or without legislative enactment, to regulate and control the practice of law to the extent that is reasonably necessary to the proper functioning of the judiciary. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

III. PRACTICING LAW WITHOUT LICENSE.

Law reviews. For article, “Unauthorized Practice of Law”, see 10 Dicta 284 (1933). For comment on United Sec. Corp. v. Pantex Pressing Mach., Inc., 98 Colo. 79, 53 P.2d 653 (1935), appearing below, see 8 Rocky Mt. L. Rev. 289 (1936). For note, “May a Layman Appear Before the Colorado Public Utilities Commission”, see 9 Rocky Mt. L. Rev. 188 (1937). For comment on People ex rel. Attorney Gen. v. Newer, appearing below, see 29 Dicta 153 (1952).

The basic and initial question in determining whether a particular activity amounts to the unauthorized practice of law is whether the individual’s appearance is in a representative capacity to protect, enforce, or defend the rights or duties of someone else. Watt, Tieder, Killian & Hoffar v. U.S. Fidelity & Guaranty Co., 847 P.2d 170 (Colo. App. 1992).

It will be observed that the gist of the offense against which the statute is directed is one not licensed as an attorney holding himself out in any manner as being licensed, or committing the overt act of appearing in a court of record to conduct legal proceedings for another. People ex rel. Attorney Gen. v. Wicks, 101 Colo. 397, 74 P.2d 665 (1937).

One who, not having a license from the supreme court as provided by statute, advertises himself as a “lawyer”, is guilty of a contempt under this section. People ex rel. Colo. Bar Ass’n v. Taylor, 56 Colo. 441, 138 P. 762 (1914).

Under this section, one who, through the medium of state, city and telephone directories, falsely holds himself out as an attorney at law, is guilty of contempt. People ex rel. Colo. Bar Ass’n v. Norton, 44 Colo. 253, 104 P. 605 (1908); People ex rel. Colo. Bar Ass’n v. Humbert, 86 Colo. 426, 282 P. 263 (1929).

One, who, not being licensed to practice law, caused his name to be printed in the city directory, on his office signs, business cards, and letterheads, followed by the words “Attorney, Solicitor of American and Foreign Patents”, or by the words “Attorney, Patent Law and Counsel in Patent Causes”, and who, in reply to a letter as to a divorce, replied on one of such letterheads, without stating that he was not engaged in the practice of law, violates this section. People ex rel. Colo. Bar Ass’n v. Erbaugh, 42 Colo. 480, 94 P. 349 (1908).

One may hold himself out as an attorney by writing, cards, signs, stationery, etc., but certainly may also, and perhaps even more effectively, hold himself out by his conduct. People ex rel. Dunbar v. Schmitt, 126 Colo. 546, 251 P.2d 915 (1952).

Where one engages in the business of advising others on those important and complicated legal problems usually falling within the practice of the profession, pretending that he is qualified to do so, does it openly and constantly, year after year, by conversation and writing, and charges and collects substantial fees therefor, he could no more effectively hold himself out as having the knowledge and the necessary authority to so act. People ex rel. Dunbar v. Schmitt, 126 Colo. 546, 251 P.2d 915 (1952).

Evidence showing unauthorized practice. People ex rel. Dunbar v. Schmitt, 126 Colo. 546, 251 P.2d 915 (1953).

The evidence adduced at the hearing established beyond a reasonable doubt that the respondent held himself out as being able to perform the services of incorporating business ventures generally required to be performed by a licensed attorney, that the respondent was not licensed to practice law in the state of Colorado, and that he prepared articles of incorporation for which he charged and received a fee in violation of this statute. People ex rel. Dunbar v. McClellan, 164 Colo. 202, 434 P.2d 126 (1967).

Since notaries public are by statute empowered to perform certain acts including making “declarations and protests” and taking “affidavits and depositions”, where a notary advertises, “legal papers made”, such fact is not sufficient or any proof that he intended to exceed the authority conferred upon him as a notary or of an intent to practice law. People ex rel. Attorney Gen. v. Wicks, 101 Colo. 397, 74 P.2d 665 (1937).

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 the supreme court to permit laymen to represent others before the public utilities commission in accordance with rule 7(b) of the public utilities commission even though such representation may constitute practicing law. Denver Bar Ass’n v. Pub. Utils. Comm’n, 154 Colo. 273, 391 P.2d 467 (1964).

Where a considerable portion of respondent’s time had been devoted to consulting with inmates of Colorado State Hospital, investigations of the legal proceedings resulting in their commitment to the institution, and advice and activities designed to bring about a release of the patients from further detention at said hospital, respondent was practicing law in violation of this section. People ex rel. Zimmerman v. Flanders, 121 Colo. 25, 212 P.2d 502 (1949).

The drawing of wills, as a practice, is the practice of law. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Where a cashier of a county bank drafted, prepared and caused to be executed a will, he engaged in the practice of the law in Colorado without having the requisite license therefor and was held guilty of contempt of the supreme court. People ex rel. Attorney Gen. v. Woodall, 128 Colo. 563, 265 P.2d 232 (1954).

For case where party was punished for contempt of the authority of the supreme court for holding himself out as an attorney at law, see People ex rel. Attorney Gen. v. Brown, 126 Colo. 222, 247 P.2d 682 (1952).

Under this section, a resident of Colorado licensed to practice law in another state, by accepting employment as an attorney in Colorado without a license to practice, is guilty of contempt. People ex rel. Attorney Gen. v. Thomas, 87 Colo. 547, 290 P. 283 (1930).

At the time respondent accepted the legal employment, he disclosed he was not a resident of the state in which he was authorized to practice law, Ohio, but was a resident of the state of Colorado, by his own admission, for a substantial period of time he had engaged in the practice of law in the state of Colorado without having a license from the supreme court so to do, in violation of the provisions of this section. People ex rel. Attorney Gen. v. Fitkin, 170 Colo. 388, 461 P.2d 436 (1969).

Services of an attorney not licensed in Colorado are compensable as attorney fees where no court appearances made and the work performed consisted of obtaining a variance from a municipal zoning code. Catoe v. Knox, 709 P.2d 964 (Colo. App. 1985).

Consulting services performed by an out-of-state lawyer do not constitute unauthorized practice of law under canon 3 of the Colorado code of professional responsibility and therefore may be compensated as attorney fees. Dietrich Corp. v. King Res. Co., 596 F.2d 422 (10th Cir. 1979).

Because a partnership is not a separate legal entity, but is only treated as such under partnership statutes for certain limited purposes, trial court should reconsider its finding of contempt based on theory that a Virginia partnership and individuals representing it in Colorado courts were engaged in the unauthorized practice of law. Watt, Tieder, Killian & Hoffar v. U.S. Fidelity & Guaranty Co., 847 P.2d 170 (Colo. App. 1992).

A partnership must be considered as an entity separate and apart from the general partners for purposes of defining parties who may appear for others in courts of record. E & A Assoc. v. First Nat. Bank of Denver, 899 P.2d 243 (Colo. App. 1994) (disapproving any inference to the contrary in Watt, Tieder case, also annotated under this section).

Where respondent violated this section, but it is apparent he did not do so intentionally, the duty of the court does not require his punishment. People ex rel. Colo. Bar Ass’n v. Ellis, 44 Colo. 176, 96 P. 783 (1908).

A person is not amenable to discipline for contempt of court for practicing law without a license, for his belief that he had the right to do certain things, which might be construed as practicing law, his intent to do them, or even for an overt act, where the doing of such act was neither charged nor admitted. People ex rel. Attorney Gen. v. Wicks, 101 Colo. 397, 74 P.2d 665 (1937).

Applied in People ex rel. Attorney Gen. v. Gregory, 135 Colo. 438, 312 P.2d 512 (1957).

IV. DRAFTING LEGAL DOCUMENTS.

The drafting of documents, when merely incidental to the work of a distinct occupation, is not the practice of law, although the documents have legal consequences. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

There are instruments that no one but a well trained lawyer should ever undertake to draw. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

There are other instruments common in the commercial world, and fraught with substantial legal consequences, that lawyers seldom are employed to draw, and that in the course of recognized occupations other than the practice of law are often drawn by laymen. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The actual practices of the community have an important bearing on the scope of the practice of law. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

A person who gives legal advice to those for whom he draws instruments, or holds himself out as competent to do so, does work of a legal nature, when the instruments he prepares either define, see forth, limit, terminate, specify, claim or grant legal rights. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

However, a person who is not a member of the bar may draw instruments such as simple deeds, mortgages, promissory notes, and bills of sale when these instruments are incident to transactions in which such person is interested, provided no charge is made therefor. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The preparation of simple real estate instruments, done without separate charge therefor by licensed real estate brokers only in connection with their established business, and in behalf of their customers and in connection with a bona fide real estate transaction which they are handling as brokers, should not be enjoined as unauthorized practices of law. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

It would not be in the interest of the public welfare to restrain brokers from drafting the ordinary instruments necessary to effectuate the closing of the ordinary real estate transaction in which they are acting. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Ordinary conveyancing, being part of the every day business of the realtor, may also be done by others without wrongful invasion of the lawyers’ field and consequently is something of which the legal profession cannot claim that the public welfare requires restraint by judicial decree. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

V. ENJOINING UNLAWFUL PRACTICE OF LAW.

It is quite generally held that the right to practice law conferred by the state is a special privilege in the nature of a franchise and that the holder thereof may be protected from the invasion of the right thus vested in him. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The adequate remedy for such invasion is by injunction, and that is so whether the transgressor is an individual or a corporation, though, as to the latter, as contended, quo warranto would lie. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The right to practice law exists by virtue of a license from the state, and it may be protected from unlawful encroachment by injunction, though the act complained of is a violation of statute which prescribes a penalty. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

With or without statutory authorization or sanction, in a proper case, a person engaged in the unlawful practice may be punished for contempt and may also be enjoined from further similar unlawful action. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Duly licensed members of the bar may invoke the jurisdiction of the courts to restrain the illegal practice of law by others. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Attorneys, as officers of the court, may, both for themselves and all the affected members of their profession, institute and maintain a suit to challenge or enjoin the unlawful intrusion into their office and professional field by one who is not licensed to do so. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

In general a court of equity will grant an injunction only where there is imminent danger or irreparable injury or damage to the plaintiff. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

In order to restrain an unlicensed person from practicing a profession, it is not necessary to prove irreparable injury or the threat thereof where the suit is in behalf of the public. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Plaintiffs, the Denver and Colorado Bar Associations, the chairmen of the unauthorized practices committee of each association and licensed attorneys who appear for themselves and all other licensed attorneys and on behalf of the public are entitled to an injunction to prevent the unlawful intrusion into their office and professional field of defendant. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

In such a case, the extent of the damage to the property right is unimportant. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The existence or threat of real damage is enough to warrant relief. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

The fact that no property or pecuniary interest of the plaintiff is involved is not an answer to a suit for an injunction to enjoin the practice of a profession without a license, where the action is in behalf of the public. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).