Spivak v. Sachs

Steuer, J. The essential facts necessary for resolution of this ease are that defendant requested plaintiff, a lawyer admitted to practice in California but not in New York, to come here and render her what assistance he could in matrimonial litigation in which defendant was involved. Plaintiff correctly advised defendant that he would not be able to appear in any action and that the services he could perform would be limited to advice and consultation with the attorneys appearing for her. With complete understanding of the situation and under circumstances that clearly showed that it was contemplated that the services would be paid for, plaintiff came to New York and performed the services that were requested. We have no doubt that the services performed were legal services. The only question is whether plaintiff is barred from recovery because he is not admitted to practice in this jurisdiction. Any such prohibition would have to be of statutory origin and, as the dissent shows, the applicable statute is section 270 of the Penal Law. That statute makes it unlawful for any person to practice or appear in any court, or to hold himself out as being entitled to practice, or to maintain an office of any kind for the practice of law, without having first been admitted to the Bar. It is quite clear that plaintiff did none of the specific acts that are forbidden. He made no court appearances, and [350] he made no misrepresentation as to his status — in fact; he made that abundantly clear to all persons with whom he came in contact. So that the only possible statutory contravention would have to be found in the word “ practice ”. In all of the reported cases interpreting the statute which have come to our attention, the question has either been one of holding out to be an attorney (People v. Alfani, 227 N. Y. 334) or whether a continuous course of conduct carried on in this State constituted legal practice (Blumenberg v. Neubecker, 12 N Y 2d 456; Matter of New York County Lawyers Assn. [Roel], 3 N Y 2d 224; Matter of New York County Lawyers Assn. [Bercu], 273 App. Div. 524). The statutory purpose is the protection of the public against representation by persons who are exempt from the regulatory provisions which govern those admitted to practice. Consonantly, it has been held that a single act not influenced by the element of misrepresentation of status, even though the act is one usually restricted to lawyers, is not a violation of the section (People v. Weil, 237 App. Div. 118). The literal interpretation which attributes to a single act, not attended by misleading the client, the same consequences as a continuing course of conduct, is virtually self-defeating. With business activities crossing State lines and with communication and travel facilitated, it is usual for lawyers to accompany their clients for purposes of consultation and advice. It is true that in any such situation where the acts tend to become regular, a question of degree can arise as to whether this constitutes practice. But where, as here, a solitary incident is presented, and no otherwise improper act or holding out is involved, the statute is not violated. The judgment should be affirmed, with costs to respondent.