ADDRESS OF CLARENCE H. KELSEY

(of the New York Bar, President of Title Guarantee and Trust Co.)

MR. CHAIRMAN AND GENTLEMEN: I am grateful to Mr. Boston for having preceded me. His conclusions, like most judicial decisions, have had something to say on both sides of the case. I am somewhat abashed in attempting to discuss in this assemblage the subject allotted to me. I am aware that the views which I may present will not be acceptable to a good many of you. But I believe that they are views which are held by a good many people besides Mr. Boston, both lawyers and laymen, and I believe that they are views which bodies like this Bar Association ought to consider in making up their minds as to the position that they will take on the questions under consideration. I need not say that what I have to present is presented without any fault-finding or contentious disposition. I merely want to hold up the other side of the shield because I think a good many lawyers do not think there is any other side to the shield, and take their attitude accordingly.

Profiting by Mr. Boston's example-and I am glad that he gave it to me-I, too, ask your indulgence if I read what I have to say. It will help to confine me to the subject and limit the time that I shall take.

ENCROACHMENTS BY CORPORATIONS ON THE PRIVATE PRACTICE OF THE LAW; ENCROACHMENTS BY PRACTICING ATTORNEYS ON THE BUSINESS OF CORPORATIONS.

WHAT ARE THE CAUSES AND HOW FAR ARE THE ENCROACHMENTS IN BOTH CASES JUSTIFIED? WHAT IS IT TO

PRACTICE LAW AND WHAT PROTECTION IS THE PRIVATE ATTORNEY ENTITLED TO?

In early times there were only a few learned men in each community. A profession was laboriously acquired by a few and all others had to look to the members of the professions as the only ones fit to advise, as lawyer, doctor or minister. Now, the great majority are educated and do not look up to the professions with so much awe and reverence. They treat themselves for their physical ailments; they draw their own wills, and furnish their own law. They get their own spiritual comfort and training. The legal profession is the only one which does not seem to recognize the changed conditions and realize that it does not have a field immune from limitation or invasion.

We all know that the lawyer is regarded by many as a necessary evil. Unworthy representatives have done. much to impair the popularity of the worthy. Too many unfit have been admitted to the bar. If the client is ignorant he feels that he must put himself absolutely in his lawyer's hands and the latter has great power over him. The reputable and trustworthy members of the bar, who are in the great majority, have to bear the burden of the betrayals of this trust by the faithless few.

As society has developed, the educated individual feels that he knows much of many things; that he can do for himself many things that in a less developed society he would have had to ask those more especially trained to do for him. He thinks he knows when he needs a specialist and insists on deciding for himself when he will call him.

The great influx of young men into the law, many of them of foreign extraction and none too well educated, coupled with the foregoing, has made the law not very profitable excepting for the few fortunate or eminent members of the profession. At the same time and for the reasons stated there has been a decided tendency to or

ganize corporations to attend to many of the things that were formerly attended to by lawyers.

Much of this has been perfectly proper. These corporations handle much business that could not properly be called law practice although lawyers have been attending to it and annexing it to their practice. The corporation has a fixed schedule of charges. It employs the highest legal and technical talent to protect itself and its clients. It cannot abscond, it does not die, and it often is more responsible for its mistakes than the individual, and atones for them.

The effort to stem this tide by legislating that all sorts of things that a man has felt capable of doing himself are practicing law, and holding that everything that a lawyer has done in the past is practicing law and no one else must do it, will not succeed and should not do so.

It may be claimed that this fencing into the preserves of the law of all these near-law services, so that the public cannot touch them itself, is in order to protect the public from imposition and fraud; but, in the first place, the public has found that it has to be about as wary within the preserve as out of it, and in the second place, it believes that the programme is meant to protect the profession in its business rather than the public against imposition.

The modern individual feels free to build a building without an architect if he wishes; to treat his ailments without calling in a doctor; to draw his will without calling in a lawyer; and he resents compulsion in one direction just as much as in another. He may suffer for it and must learn by experience. He will not admit that he needs a guardian, and society will develop more satisfactorily if too many rules and restraints of this kind are not forced upon it.

That these restraints are not sound or warranted in this age, appears from the fact that they are not suggested for the benefit of the medical profession, the architects,

the engineers, the ministers or the chemists, but only for the lawyers. It is doubtful if they would be suggested for the lawyers were it not that they are still in the majority in the legislatures and unanimous on the bench.

The law is a great profession when properly and worthily followed. It does not need to protect itself by tradesunion methods. It is my observation that the leaders of the bar do not desire to do so. The rules are strict as to the education and training required for admission to the learned professions. In all the other professions the incumbent is expected to make his way and to hold his position on the merits of his accomplishment. He accepts employment and duties that are voluntarily put upon him. The practicing attorney should strive to attract a demand for the professional skill and wisdom that he has shown and make himself indispensable by his ability to do for his client what the client cannot and should not attempt to do for himself, rather than to force the client to employ him when he does not need him.

It cannot be that the benefit that has followed to the public by the development of great corporations in so many fields by their doing things so much better than individuals could do them, is not realizable in many things that there is now a tendency to call practicing law because lawyers formerly did them. If there is great economy and advantage to the public in the services of such corporations, it is very certain that the public will have them.

We are all talking about the necessity for greater production in all fields of activity. Economy and efficiency are demanded and the wise lawyer will wish to see them even if they impair somewhat his own opportunities. Unless we turn back the hands of the clock we cannot reject the corporation principle even in matters formerly in the hands of lawyers excepting as they are strictly

professional and involve the real practice of the law. I know that this may seem quite heretical in this presence. I know, too, that there has been an expansion of the definition of practicing law and that both the legislatures and the courts have co-operated to this end, but if they are wrong, the wrong will, in time, be corrected. We must remember that they are passing on what they consider the interests of their own profession and can hardly be free from bias. If some of these questions could be left to a jury, a good many things that it is now attempted to define as practicing law would be eliminated from the definition; and perhaps that jury will some day be a legislature in which the lawyers are in a minority.

To pass a law that a man shall not fill out a printed blank deed, or lease, or even a contract to sell a piece of real estate if he wishes to, is unworthy of a great profession like the law. It is almost like forbidding a man to buy a pellet at the apothecary's instead of calling in the doctor. Law, in a great measure, is common sense, and to deny the exercise of it to the average man is unjust. The practice of the law does not properly embrace the filling out of blanks and, as a matter of fact, until very recently was not so considered. The interpretation of legal questions and documents, trial of cases, construction of wills, the conduct of litigations, the arguments in court are what are devolved upon a lawyer by his admission to practice.

The lines of demarcation between professional and nonprofessional work are no longer distinct. The lawyers themselves are as responsible as anyone for this. They have invaded business quite as much as business has invaded the profession. Often they do not handle business any better than business men handle legal matters. They seldom hesitate, however, to assume any business position that comes to them. They name themselves as executors constantly, even though they have little capacity to manage the business affairs of the estate. They are not con