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DACEY v. NEW YORK CTY. LAWYERS' ASSN.

October 9, 1968;

Norman F. DACEY and Norman F. Dacey doing business as National Estate Planning Council, Plaintiff,
v.
NEW YORK COUNTY LAWYERS' ASSOCIATION, Defendant



The opinion of the court was delivered by: WYATT

WYATT, District Judge.

 This is a motion by defendant New York County Lawyers' Association (the Association) for an order dismissing the action because the amended complaint fails to state a claim upon which relief can be granted (Fed.R.Civ.P. 12(b)(6)).

 The motion must be granted.

 I.

 Plaintiff Dacey, who is not a lawyer, is the author of a book "How to Avoid Probate!" (the Book). The nature of the Book is thus described in the amended complaint: "The Book is a strong criticism of the probate court system and lawyers engaged in trusts and estates practice and sets ways and means of avoiding both. The Book contains various forms and explanatory material dealing with decedents' estates and lifetime trusts". The Book was published in November 1965.

 Defendant Association is a membership corporation organized in 1908 under the Membership Corporations Law of New York. The members of the Association are lawyers practicing in New York County; there are many such members and it is believed to be the largest local bar association in the United States. (I am a member of the Association and have been for some years; after being so advised at the oral argument, plaintiff and his attorney stated that they did not suggest any disqualification.)

 A membership corporation in New York is by definition "a corporation not organized for pecuniary profit" (Membership Corporations Law, McKinney's Consol.Laws, c. 35, § 2). That law also has the following special provision for bar associations (§ 11(7)):

 
"The corporate purposes of a bar association shall be cultivating the science of jurisprudence, promoting reforms in the law, facilitating the administration of justice, elevating the standard of integrity, honor and courtesy in the legal profession, cherishing the spirit of brotherhood among the members thereof, and such kindred purposes as may be stated in the certificate. The incorporators shall be members of the bar in active practice."

 The Association is thus a non-profit organization of lawyers having among others the purposes just stated.

 The Judiciary Law of New York, McKinney's Consol.Laws, c. 30, gives the Supreme Court power to punish for a criminal contempt "any person who unlawfully practices or assumes to practice law" (§ 750, subd. B). The same section provides that a proceeding for such punishment may be instituted "on the court's own motion or on the motion of any officer charged with the duty of investigating or prosecuting unlawful practice of law, or by any bar association incorporated under the laws of this State".

 In January 1967, the Association, acting under Judiciary Law § 750, subd. B, filed a petition instituting a summary proceeding in the Supreme Court, New York County, to adjudge in contempt and to enjoin Dacey and also the publisher of the Book and two retail booksellers.

 On June 28, 1967, Mr. Justice Marks handed down an opinion finding Dacey in contempt because he was engaged through the Book in the unlawful practice of law; Mr. Justice Marks stated in his opinion that Dacey and the other respondents should be enjoined (54 Misc.2d 564, 282 N.Y.S.2d 985 (Sup.Ct.1967)).

 Before a judgment had been entered on the opinion of Mr. Justice Marks, this action was commenced in this Court on August 7, 1967. The complaint averred that the decision of Mr. Justice Marks and the prosecution by the Association of the contempt proceeding was an illegal and unconstitutional restraint on the freedom of speech and of the press guaranteed by the First and Fourteenth Amendments to the Constitution of the United States and by the civil rights laws (42 U.S.C. § 1981 and following). The jurisdiction of this Court was said to be based on 28 U.S.C. §§ 1331 and 1343. The relief asked was an injunction restraining the Association from further prosecuting the contempt proceeding and from enforcing any injunction granted by the State Court.

 A judgment on his opinion was signed by Mr. Justice Marks and entered on September 6, 1967. Plaintiff promptly appealed to the Appellate Division, First Department. The Association agreed that, pending decision of that appeal, it would not attempt to enforce the State Court judgment.

 In the case at bar, an application for a preliminary injunction was made by plaintiff to Judge McLean. On October 9, 1967, this application was denied, principally (a) because the constitutional and other claims could be, and were, raised in the State Court proceedings and (b) because, since the Association was not attempting to enforce the State Court order, there was no irreparable injury to plaintiff.

 On October 24, 1967, the Appellate Division, by a vote of 4 to 1, affirmed the judgment of the New York Supreme Court as to plaintiff but modified the judgment as to the other respondents (28 A.D.2d 161, 283 N.Y.S.2d 984). The majority was made up of Justices Eager, Capozzoli, Tilzer and McNally, with majority opinion by Mr. Justice Eager. There was a dissenting opinion by Mr. Justice Stevens. The dissenting opinion emphasized that the publication of a book - even if it be a legal text - does not amount to the practice of law, that publication of legal forms is not the practice of law, that buying the Book is not an employment of plaintiff as a lawyer but rather an attempt by the purchaser to be his own lawyer, and that the relationship between an author and the purchaser of his book is not that of attorney and client.

 On December 29, 1967, the Court of Appeals of New York reversed the order of the Appellate Division and dismissed the petition of the Association, on the dissenting opinion at the Appellate Division (21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459). Judge Scileppi dissented and voted to affirm on the prevailing opinion at the Appellate Division.

 An amended complaint was then on January 22, 1968 filed in this Court in the case at bar.

 The amended complaint no longer sought any injunction against the State Court proceeding because that had terminated favorably to plaintiff.

 The amended complaint contained two claims, the first for six million dollars in actual and punitive damages and the second (on the same averments as the first) for an injunction against the Association cooperating with any groups in other jurisdictions to ...


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