Texas Court Holds Unauthorized Practice of Law Prohibits Notaries from Drafting Conveyances and Wills Regardless of Compensation
The Austin Court of Civil Appeals held that a notary public who drafted real estate conveyances, releases of liens, contracts of sale, title opinions, deeds of trust, leases, and wills engaged in the illegal practice of law under the State Bar Act, even when performed gratuitously. The court rejected the argument that unauthorized practice turns on whether consideration was received, holding instead that the nature of the services—not compensation—determines whether legal licensure is required.
Background
H.C. Coryell, a notary public in San Saba County who was not licensed to practice law, had for years drafted various legal instruments including real estate conveyances, lien releases, sales contracts, deeds of trust, leases, and wills. He performed these services both for compensation and gratuitously. The Grievance Committee of the State Bar of Texas, Twenty-First Congressional District, brought suit seeking a declaratory judgment that Coryell's activities constituted the unauthorized practice of law. The trial court ruled in part for the plaintiff and in part for the defendant, and the plaintiff appealed.
The Legal Issue
The central question on appeal was whether a person not licensed to practice law may perform legal services so long as he receives no compensation. This raised fundamental questions about the scope of the State Bar Act and the courts' inherent power to regulate the practice of law.
The Court's Analysis
The Court of Civil Appeals reformed the trial court's judgment, holding that determination of whether services performed by a person not licensed as an attorney constitute illegal practice of law turns upon the nature of the services done rather than upon whether they were performed for or without consideration. The court found that Coryell's activities—drawing conveyances of real estate, releases of liens, contracts of sale, giving opinions on titles, and drafting deeds, deeds of trust, leases and wills—constituted the practice of law under Vernon's Annotated Civil Statutes article 320a-1, regardless of whether compensation was received.
The court emphasized that courts possess inherent power to determine what constitutes the practice of law, independent of any Penal Code provision defining the practice of law. The court grounded its holding in the protective purpose of lawyer licensing requirements, stating:
The controlling purpose of all laws, rules and decisions forbidding unlicensed persons to practice law is to protect public against persons inexperienced and unlearned in legal matters from attempting to perform legal services, and the fact that a fee is not charged for such services is immaterial.
The court noted that the State Bar Act and applicable rules of the Supreme Court prohibit any person from engaging in the practice of law without having first obtained a license to do so. The opinion was issued on October 10, 1945, with a rehearing denied on November 7, 1945. The court reformed the trial court's judgment and, as reformed, affirmed it.