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Keywords

plaintiffdefendantattorneydivorce

settlementplaintiffdefendantjurisdictionattorneylawyerstatuteappeal

Related Cases

Spivak v. Sachs, 16 N.Y.2d 163, 211 N.E.2d 329, 263 N.Y.S.2d 953

Facts

The plaintiff, a California attorney, was contacted by the defendant, a New York resident, during her divorce proceedings. Despite not being licensed in New York, the attorney traveled to New York to provide legal advice and assistance regarding the divorce and custody issues. He engaged in discussions with the defendant and her New York attorneys, ultimately advising her on legal matters related to her case. The attorney sought to recover fees for his services, which the lower courts initially awarded, but the defendant argued that this constituted illegal practice of law.

In November of that year defendant telephoned from New York to plaintiff in California. She told him that she was being pressed into a property settlement, that one child had been taken from her and she feared she might lose the custody of the other child and that she was confused and wanted plaintiff to come to New York to talk to her about her affairs.

Issue

Did the California attorney engage in the illegal practice of law in New York, thereby precluding him from recovering fees for his services?

Defendant appeals here, arguing that plaintiff cannot recover since what he did amounted to the illegal practice of law in this State in violation of section 270 of the Penal Law, Consol.Laws, c. 40.

Rule

The practice of law in New York is restricted to duly licensed attorneys, and providing legal advice or counsel constitutes the practice of law under section 270 of the Penal Law.

It is settled that the practice of law forbidden in this State by section 270 of the Penal Law to all but duly licensed New York attorneys includes legal advice and counsel as well as appearing in the courts and holding oneself out as a lawyer.

Analysis

The court analyzed the attorney's actions and determined that he had indeed practiced law in New York by providing legal advice and counsel to the defendant regarding her divorce and custody issues. The court rejected the argument that his actions were merely an isolated incident, emphasizing that the attorney's involvement was significant and directly related to the legal matters at hand. The court concluded that allowing recovery for such services would undermine the protections intended by section 270.

To say that this falls short of the ‘practice of law’ in New York is to defeat section 270 and the policy it represents. The statute aims to protect our citizens against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions.

Conclusion

The court reversed the lower court's judgment and dismissed the complaint, ruling that the attorney's actions constituted illegal practice of law in New York.

The order should be reversed and the complaint dismissed, with costs in all courts.

Who won?

The defendant prevailed in the case because the court found that the plaintiff's actions constituted the illegal practice of law, which precluded him from recovering fees.

The dissent below emphasized that the advice given by plaintiff was in part based on his knowledge or claimed knowledge of New York law.

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