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Chicago Bar Ass'n v. Clausen

OPINION FILED DECEMBER 22, 1953.

CHICAGO BAR ASSOCIATION ET AL., APPELLEES,

v.

ELMER L. CLAUSEN. TRADING AS CLAUSEN AND COMPANY, APPELLANT.



Appeal by defendant from the Circuit Court of Cook county; the Hon. ROBERT JEROME DUNNE, Judge, presiding. Heard in the second division of this court for the first district at the April term, 1953. Decree affirmed. Opinion filed December 22, 1953. Rehearing denied January 22, 1954. Released for publication February 19, 1954. MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 22, 1954.

Plaintiff Chicago Bar Association and certain of its members, individually and as members of the Committee on Unauthorized Practice of Law of said Association, brought their suit in equity against defendant Elmer L. Clausen, d/b/a Clausen and Company, to restrain said defendant from performing certain acts alleged to constitute the unlawful practice of law. The matter was referred to a master in chancery, and, after a lengthy hearing, exceptions to the master's report were overruled, and a decree was entered causing an injunction to issue permanently restraining the defendant, his agents and employees from: (1) directly or indirectly engaging in the practice of law; (2) directly or indirectly fomenting and soliciting litigation; (3) directly or indirectly performing, furnishing and rendering legal services and advice; (4) directly or indirectly charging and collecting fees for legal services; (5) directly or indirectly negotiating by himself or through attorneys, on behalf of property owners, for higher condemnation awards than those originally offered by the condemning authorities prior to or subsequent to litigation, or contesting condemnation proceedings, with a view of effecting an increase in damages for persons represented by him; (6) directly or indirectly rendering and continuing to render legal services in connection with condemnation proceedings; (7) directly or indirectly soliciting or employing attorneys to act for property owners; (8) directly or indirectly dividing the fees paid by property owners for services in settling or contesting condemnation proceedings. The decree further ordered defendant to pay plaintiff master's fees in the sum of $873, and other taxable costs. From this decree defendant appeals.

Defendant insists he was not engaged in the practice of law or the solicitation of law business; that the acts complained of were legitimate and necessarily incident to the business which he was authorized by state license to pursue, namely that of engineer, appraiser and real estate broker.

We find the material facts, substantially undisputed, to be as follows: Defendant is a professional engineer, real estate appraiser and land surveyor who conducted his business under the name of Clausen and Company from an office at 228 North LaSalle street, Chicago, Illinois; that no lawyers have any space in his office and that he has no space in the office of any lawyer; that for a number of years defendant has circularized and solicited large numbers of property owners affected by condemnation proceedings in Cook county, Illinois, and has entered into contracts of employment within the last five years with approximately 5,000 property owners in connection with these condemnation proceedings; that defendant's modus operandi was as follows: A letter would be written to the property owners calling attention to the fact that "we, as engineers, specialize in representing owners on a contingent basis on property damage or condemnation suits"; then, following a recital of a number of similar matters in which defendant had represented property owners, the letter concluded with the suggestion that the recipient call for an appointment. A follow-up letter, again calling attention to the service offered by defendant, concluded with the following paragraph: "Enclosed is the agreement which we regularly employ for this type of case. Inasmuch as an attorney's services are generally advisable, we shall be glad to work with any one of your choice; or if you desire, we can have our own attorneys handle the legal aspects of this matter at no additional cost to you." (Italics ours.) A form of agreement enclosed was addressed to defendant and contained the following language:

"You are hereby authorized and requested to survey and make a complete structural report indicating present condition of the property commonly known as _____.

"We understand that all or part of this property will be taken or damaged by reason of the above project. The foregoing work on your part is to be done in preparation for negotiation of settlement of any claim for compensation for such damage to or taking of such property or any part thereof, or for use in connection with the trial of any suit regarding such compensation.

"You are authorized and directed on behalf of the undersigned to do whatever is necessary and proper in order to secure such compensation for the undersigned. You may on behalf of the undersigned, employ an attorney and real estate expert to represent the undersigned in such negotiations or litigation, and specify terms of employment; all subject to the approval of the undersigned.

"You are to receive reasonable compensation for your work, but payment shall be contingent upon recovery of an amount for the damage or taking of said property in excess of the amount offered us by the State of Illinois, or others, for such damage or taking. It is understood that all fees and expenses, including your compensation, attorney's fees, and real estate expert's fees, shall be one third of said excess over said offer to us by the State of Illinois, or others."

Recently the words "payable only from the award" were added to the last sentence of the contract. Following the contract a questionnaire was sent to the property owner inquiring as to the assessed value, amount of taxes, amount of unpaid taxes, kind and size of building, size of the lot, and value of the property. A further follow-up letter advised the property owner that in accordance with "our agreement" defendant had retained attorneys to represent the client. The letter concluded by suggesting that the property owner have a few of his neighbors contact defendant for the purpose of retaining defendant to represent them.

During the course of the solicitation a letter was sent by defendant to the lawyer whom defendant had selected for the particular case. The pertinent parts of this letter were as follows:

"Dear Sir:

"We have been authorized and directed by ______ ______ of the property commonly known as ______ to employ you as Attorney to represent such owners in such negotiations or litigation as may be necessary to recover compensation for damage to or taking of said property or any part thereof by reason of the above project.

"We hereby employ you as such Attorney for said purposes and you are authorized and directed on behalf of such owners to do whatever is necessary and proper in order to recover such compensation, including the filing and prosecution of suit, the defense of any suit instituted in respect thereto, or making settlement, the amount of any settlement, however, to be subject to the approval of the owners.

"We are to survey and make a complete structural report indicating the present condition of said property for such owners in preparation for said negotiations or litigation regarding such compensation, and we are to confer with and assist you in negotiations for settlement and in the presentation of evidence on the trial of the case. You are to receive payment from such owners for said work, contingent upon recovery of an amount in excess ...


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