Cross References.

Board of commissioners of Idaho state bar, duties concerning admission to practice law,§ 3-408.

Clerk of Supreme Court may not practice as attorney or counselor,§ 1-406.

Judge or justice not to act as attorney or counsel,§§ 1-1802, 1-1803.

Judge not to have law partner,§ 1-1804.

Prosecuting attorney, restrictions on right to practice law,§ 31-2606.

Prior Laws.

Former§ 3-101, which comprised C.C.P. 1881, § 113; R.S., § 3990; am. 1897, p. 57, § 1; reen. 1899, p. 302, § 1; reen. R.C. & C.L., § 3990; C.S., § 6565; am. 1929, ch. 63, § 1, p. 92; I.C.A.,§ 3-101; am. 1949, ch. 73, § 1, p. 126, was repealed by S.L. 1974, ch. 41, § 1.

Decisions Under Prior Law

Admission Without Examination.

Where statute provided that applicants for the bar shall be admitted by the supreme court without being required to pass a written examination, upon proof of good moral character, said statute was mandatory and not directory. In re Kaufman, 69 Idaho 297, 206 P.2d 528 (1949).

Constitutionality of Statutes.

Statute which required supreme court to admit to the bar any graduate of certified law school upon furnishing proof of good moral character was unconstitutional as an invasion of the judicial function to prescribe maximum qualifications for applicants for the bar. In re Kaufman, 69 Idaho 297, 206 P.2d 528 (1949).

Any legislation, which attempts to require courts to admit candidates for bar on standards other than accepted or established by the court, is unconstitutional, as an invasion of the judicial power, and a violation of the constitution establishing separate branches of government. In re Kaufman, 69 Idaho 297, 206 P.2d 528 (1949).

Nature of Right to Practice.

The right to practice a profession has been held in this state not to be a property right; it is a privilege or franchise, and the privilege to practice a profession is a valuable one which may only be revoked by the proper exercise of the police power. In re Edwards, 45 Idaho 676, 266 P. 665 (1928); Craft v. Balderston, 58 Idaho 650, 78 P.2d 122 (1938).

The right to practice law is a privilege and the admission or exclusion of persons from the right is a judicial power. In re Edwards, 45 Idaho 676, 266 P. 665 (1928); In re Lavin, 59 Idaho 197, 81 P.2d 727 (1938).

Nonresidents.

Statute that provided what persons were entitled to admission to the bar and supreme court rule regarding admission to the bar did not contemplate the admission of nonresidents of this state to the bar; the privilege of nonresident attorneys to appear in the courts of Idaho is granted as a courtesy. Mason v. Pelkes, 57 Idaho 10, 59 P.2d 1087, cert. denied, 299 U.S. 615, 57 S. Ct. 319, 81 L. Ed. 453 (1936); Cleek v. Virginia Gold Mining & Milling Co., 63 Idaho 445, 122 P.2d 232 (1942).

Qualifications of Applicants.

Determination of mental and moral qualifications of applicants for the bar has long been a judicial function. In re Kaufman, 69 Idaho 297, 206 P.2d 528 (1949).

Legislature has the power to provide minimum qualifications for applicants to the bar, but it is the inherent right of the court to prescribe the maximum qualifications for applicants to the bar, and no legislature can force the courts to accept any candidate for the bar until the courts are themselves satisfied that such qualifications are sufficient. In re Kaufman, 69 Idaho 297, 206 P.2d 528 (1949).

ALR.

Criminal record as affecting applicant’s moral character for purposes of admission to the bar. 88 A.L.R.3d 193.

Violation of draft laws as affecting character for purposes of admission to the bar. 88 A.L.R.3d 1055.

Failure to pay creditors as affecting applicant’s moral character for purposes of admission to the bar. 4 A.L.R.4th 436.

Sexual conduct or orientation as ground for denial of admission to bar. 21 A.L.R.4th 1109. Statute which required supreme court to admit to the bar any graduate of certified law school upon furnishing proof of good moral character was unconstitutional as an invasion of the judicial function to prescribe maximum qualifications for applicants for the bar. In re Kaufman, 69 Idaho 297, 206 P.2d 528 (1949).

Any legislation, which attempts to require courts to admit candidates for bar on standards other than accepted or established by the court, is unconstitutional, as an invasion of the judicial power, and a violation of the constitution establishing separate branches of government. In re Kaufman, 69 Idaho 297, 206 P.2d 528 (1949).

Nature of Right to Practice.

The right to practice a profession has been held in this state not to be a property right; it is a privilege or franchise, and the privilege to practice a profession is a valuable one which may only be revoked by the proper exercise of the police power. In re Edwards, 45 Idaho 676, 266 P. 665 (1928); Craft v. Balderston, 58 Idaho 650, 78 P.2d 122 (1938).

The right to practice law is a privilege and the admission or exclusion of persons from the right is a judicial power. In re Edwards, 45 Idaho 676, 266 P. 665 (1928); In re Lavin, 59 Idaho 197, 81 P.2d 727 (1938).

Nonresidents.

Statute that provided what persons were entitled to admission to the bar and supreme court rule regarding admission to the bar did not contemplate the admission of nonresidents of this state to the bar; the privilege of nonresident attorneys to appear in the courts of Idaho is granted as a courtesy. Mason v. Pelkes, 57 Idaho 10, 59 P.2d 1087, cert. denied, 299 U.S. 615, 57 S. Ct. 319, 81 L. Ed. 453 (1936); Cleek v. Virginia Gold Mining & Milling Co., 63 Idaho 445, 122 P.2d 232 (1942).

Qualifications of Applicants.

Determination of mental and moral qualifications of applicants for the bar has long been a judicial function. In re Kaufman, 69 Idaho 297, 206 P.2d 528 (1949).

Legislature has the power to provide minimum qualifications for applicants to the bar, but it is the inherent right of the court to prescribe the maximum qualifications for applicants to the bar, and no legislature can force the courts to accept any candidate for the bar until the courts are themselves satisfied that such qualifications are sufficient. In re Kaufman, 69 Idaho 297, 206 P.2d 528 (1949).

ALR.

Criminal record as affecting applicant’s moral character for purposes of admission to the bar. 88 A.L.R.3d 193.

Violation of draft laws as affecting character for purposes of admission to the bar. 88 A.L.R.3d 1055.

Failure to pay creditors as affecting applicant’s moral character for purposes of admission to the bar. 4 A.L.R.4th 436.

Sexual conduct or orientation as ground for denial of admission to bar. 21 A.L.R.4th 1109. Falsehoods, misrepresentations, impersonations, and other irresponsible conduct as bearing on requisite good moral character for admission to bar. 30 A.L.R.4th 1020.

Admission as affected by alcohol abuse, 39 A.L.R.4th 567.

Sexual conduct or orientation as ground for denial of admission to bar. 105 A.L.R.5th 217.

Falsehoods, misrepresentations, impersonations, and other irresponsible conduct as bearing on requisite good moral character for admission to bar. 107 A.L.R.5th 167.

Failure to pay creditors as affecting applicant’s moral character for purposes of admission to the bar. 108 A.L.R.5th 289.

Criminal record as affecting applicant’s moral character for purposes of admission to the bar. 3 A.L.R.6th 49.

Compiler’s Notes.

This section was made a rule of court by order of supreme court dated March 19, 1951 which order was rescinded by order of supreme court dated October 24, 1974.

Effective Dates.

Section 2 of S.L. 1951, ch. 90 declared an emergency. Approved March 6, 1951.

ALR.

§ 3-103. Roll of attorneys.

The clerk of the Supreme Court must keep a roll of attorneys and counselors admitted to practice by the court, which roll must be signed by the person admitted before he receives a license.

History.

C.C.P. 1881, § 118; R.S. & R.C., § 3995; compiled and reen. C.L., § 3995; C.S., § 6570; I.C.A.,§ 3-103.

Compiler’s Notes.

This section was made a rule of court by order of supreme court dated March 19, 1951 which order was rescinded by order of supreme court dated October 24, 1974.

Revised Code, § 3995 was amended by implication by S.L. 1909, p. 109, abolishing admission by district court.

Representation Pro Se.

The inherent right of a natural person to represent himself pro se does not extend to representation of other persons or corporations. Weston v. Gritman Mem. Hosp., 99 Idaho 717, 587 P.2d 1252 (1978).

Cross References.

Contempt in general,§ 7-601 et seq.

Unlawful practice, penalty,§ 3-420.

Effective Dates.

Section 2 of S.L. 1969, ch. 278 provided that the act should become effective at 12:01 a.m. on January 11, 1971.

Attitude of Party.

One of objects of contempt proceedings is to punish the wrongdoer and his attitude, and circumstances of aggravation or mitigation are pertinent to that purpose. Idaho State Bar v. Meservy, 80 Idaho 504, 335 P.2d 62 (1959).

Attorney Required.

A business entity, such as a corporation, limited liability company, or partnership, must be represented by a licensed attorney before an administrative body or a judicial body. Indian Springs LLC v. Indian Springs Land Inv., LLC, 147 Idaho 737, 215 P.3d 457 (2009), cert. denied, 559 U.S. 944, 176 L. Ed. 3d 121, 130 S. Ct. 1512 (2010).

Buyers were prohibited from representing a partnership and a limited liability company (LLC) in a pro se capacity and the court dismissed all claims the buyers made on behalf of the partnership and LLC, as these business entities had not made an appropriate appearance or argument before the court. Indian Springs LLC v. Indian Springs Land Inv., LLC, 147 Idaho 737, 215 P.3d 457 (2009), cert. denied, 559 U.S. 944, 176 L. Ed. 3d 121, 130 S. Ct. 1512 (2010).

Attorneys from Other States.

Attorney from another state was entitled to recover for services in probate court (now district court) in Idaho, although he had not been admitted to practice in Idaho. Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930).

Contempt for Illegal Practice.

Fact that respondent in contempt proceeding for practicing without a license did not sign papers and pleadings prepared by him as an attorney does not relieve him of the charge of engaging in the practice of law. In re Brainard, 55 Idaho 153, 39 P.2d 769 (1924).

Corporations Practicing Law.

Where a trust company holds itself out as qualified to draft wills and trust declarations, it is guilty of illegally representing itself as qualified to practice law. In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157 (1930).

Agreement by corporation to furnish county expert legal services of bond attorneys to aid in the issue of bonds which the corporation agreed to buy constituted “illegal practice of law” and a contempt of court for which a nominal fine of $500.00 was imposed. Wayne v. Murphey-Favre & Co., 56 Idaho 788, 59 P.2d 721 (1936).

Former Judges.

Ex-probate judge who advised clients in probate matters and prepared legal documents for compensation was guilty of illegally practicing law. In re Brainard, 55 Idaho 153, 39 P.2d 769 (1924).

Practice of Law Defined.

This section is aimed at unadmitted and unlicensed practitioners functioning either within or without the courts. In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157 (1930).

Attitude of Party.

Where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to insure a specific result and to guard against others, a charge for such service brings it within the term “practice of law.” In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157 (1930). Attitude of Party.

One of objects of contempt proceedings is to punish the wrongdoer and his attitude, and circumstances of aggravation or mitigation are pertinent to that purpose. Idaho State Bar v. Meservy, 80 Idaho 504, 335 P.2d 62 (1959).

Attorney Required.

A business entity, such as a corporation, limited liability company, or partnership, must be represented by a licensed attorney before an administrative body or a judicial body. Indian Springs LLC v. Indian Springs Land Inv., LLC, 147 Idaho 737, 215 P.3d 457 (2009), cert. denied, 559 U.S. 944, 176 L. Ed. 3d 121, 130 S. Ct. 1512 (2010).

Buyers were prohibited from representing a partnership and a limited liability company (LLC) in a pro se capacity and the court dismissed all claims the buyers made on behalf of the partnership and LLC, as these business entities had not made an appropriate appearance or argument before the court. Indian Springs LLC v. Indian Springs Land Inv., LLC, 147 Idaho 737, 215 P.3d 457 (2009), cert. denied, 559 U.S. 944, 176 L. Ed. 3d 121, 130 S. Ct. 1512 (2010).

Attorneys from Other States.

Attorney from another state was entitled to recover for services in probate court (now district court) in Idaho, although he had not been admitted to practice in Idaho. Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930).

Contempt for Illegal Practice.

Fact that respondent in contempt proceeding for practicing without a license did not sign papers and pleadings prepared by him as an attorney does not relieve him of the charge of engaging in the practice of law. In re Brainard, 55 Idaho 153, 39 P.2d 769 (1924).

Corporations Practicing Law.

Where a trust company holds itself out as qualified to draft wills and trust declarations, it is guilty of illegally representing itself as qualified to practice law. In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157 (1930).

Agreement by corporation to furnish county expert legal services of bond attorneys to aid in the issue of bonds which the corporation agreed to buy constituted “illegal practice of law” and a contempt of court for which a nominal fine of $500.00 was imposed. Wayne v. Murphey-Favre & Co., 56 Idaho 788, 59 P.2d 721 (1936).

Former Judges.

Ex-probate judge who advised clients in probate matters and prepared legal documents for compensation was guilty of illegally practicing law. In re Brainard, 55 Idaho 153, 39 P.2d 769 (1924).

Practice of Law Defined.

This section is aimed at unadmitted and unlicensed practitioners functioning either within or without the courts. In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157 (1930).

Where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to insure a specific result and to guard against others, a charge for such service brings it within the term “practice of law.” In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157 (1930). The practice of law consists in performing services in court in any matter pending therein, the giving of legal advice, and the preparation of instruments and contracts by which legal rights are secured. In re Matthews, 58 Idaho 772, 79 P.2d 535 (1938).

Notary public merely filling blanks in printed forms of deeds, mortgages, bills of sale, and the like is not within the last clause of this section. In re Matthews, 58 Idaho 772, 79 P.2d 535 (1938).

Purpose of Contempt Proceeding.

The primary purpose of contempt and injunction proceedings in cases involving the unlawful practice of law is to protect the public against unskilled and unauthorized would-be practitioners. Idaho State Bar v. Meservy, 80 Idaho 504, 335 P.2d 62 (1959).

Small Claims Exception.

Although not rising to the level of a constitutional right, there appears to be a statutory right under this section to avail oneself of lay assistance in certain civil small claims actions. State v. Harrold, 113 Idaho 938, 750 P.2d 959 (Ct. App. 1988).

Small claims exception, allowing lay representation in civil claims not exceeding $300, did not apply to traffic infraction proceedings, and, therefore, magistrate properly refused to permit defendant’s nonlawyer father to represent her on charges of following too closely. State v. Bettwieser, 143 Idaho 582, 149 P.3d 857 (Ct. App. 2006).

Software Programs.

Advising a debtor filing for bankruptcy of available exemptions from which to choose, or actually choosing an exemption for the debtor with no explanation, requires the exercise of legal judgment beyond the capacity and knowledge of lay persons, and plugging in solicited information from questionnaires and personal interviews to a pre-packaged bankruptcy software program constitutes the unauthorized practice of law. In re Farness, 244 B.R. 464 (Bankr. D. Idaho 1999).

Unlawful Practice of Law.

The drafting of the documents alleged to have been prepared by defendant, a former probate judge, or the giving of advice and counsel with respect thereto, by one not a licensed attorney at law, would constitute an unlawful practice of law, whether or not a charge was made therefor; even though the documents or advice were not actually employed in the action or proceeding pending in court. Idaho State Bar v. Meservy, 80 Idaho 504, 335 P.2d 62 (1959).

Where an attorney, who had been suspended from the practice of law, filed complaints and other papers which gave the false impression that he was a practicing attorney, his actions constituted unlawful practice of the law. In re Depew, 98 Idaho 215, 560 P.2d 886 (1977).

When a credit cardholder’s husband, who was not a licensed attorney, represented the cardholder in a dispute with a bank, the husband engaged in the unauthorized practice of law. Citibank (South Dakota), N.A. v. Carroll, 148 Idaho 254, 220 P.3d 1073 (2009).

Cited Anderson v. Coolin, 27 Idaho 334, 149 P. 286 (1915); Wayne v. Murphey-Favre & Co., 56 Idaho 788, 59 P.2d 721 (1936); Cleek v. Virginia Gold Mining & Milling Co., 63 Idaho 445, 122 P.2d 232 (1942); White v. Idaho Forest Indus., 98 Idaho 784, 572 P.2d 887 (1977); Idaho State Bar Ass’n v. Idaho Pub. Utils. Comm’n, 102 Idaho 672, 637 P.2d 1168 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

ALR.

Maintenance of lawyer reference system by organization having no legal interest in proceedings. 11 A.L.R.3d 1206.

Representation of another before state public utilities service commission as involving practice of law. 13 A.L.R.3d 812.

Activities of law clerks as illegal practice of law. 13 A.L.R.3d 1137.

Drafting of will or other estate-planning activities as illegal practice of law. 22 A.L.R.3d 1112.

Operations of collection agency as unauthorized practice of law. 27 A.L.R.3d 1172.

What activities of stock or security broker constitute unauthorized practice of law. 34 A.L.R.3d 1305.

Sale of books or forms designed to enable layman to achieve legal results without assistance of attorney as unauthorized practice of law. 71 A.L.R.3d 1000.

Liability of professional corporation of lawyers, or individual members thereof, for malpractice or other tort of another member. 39 A.L.R.4th 556.

What constitutes “unauthorized practice of law” by out-of-state counsel? 83 A.L.R.5th 497.

Unauthorized practice of law — Real estate closings. 119 A.L.R.5th 191.

Drafting of will or other estate-planning activities as illegal or unauthorized practice of law. 25 A.L.R.6th 323.

Matters constituting unauthorized practice of law in bankruptcy proceedings. 32 A.L.R.6th 531.

Unauthorized practice of law as contempt. 40 A.L.R.6th 463.

Compiler’s Notes.

This section, which comprised S.L. 1949, ch. 73, § 2, p. 126, was repealed by S.L. 1974, ch. 41, § 2.

Cross References.

Board of commissioners of Idaho state bar, duty to formulate rules governing conduct of persons admitted to practice law,§ 3-408.

Misbehavior or wilful neglect of attorney as contempt,§ 7-601.

Witness fees not allowed to attorney in cause,§ 9-1604.

Construction.

Provisions of statute are as broad as any requirements that court could ordinarily prescribe in exercise to its inherent power. In re Clifton, 33 Idaho 614, 196 P. 670 (1921).

It is difficult to define just what is meant by duty to support the constitution and laws of United States as provided for in subdivision 1; but mere unethical conduct is not included, since courts do not attempt to give standards of ethics the force and effect of law. In re Clifton, 33 Idaho 614, 196 P. 670 (1921). «Title 3»«Ch. 2»•§ 3-201»

Cross References.

Board of commissioners of Idaho state bar, duty to formulate rules governing conduct of persons admitted to practice law,§ 3-408.

Misbehavior or wilful neglect of attorney as contempt,§ 7-601.

Witness fees not allowed to attorney in cause,§ 9-1604.

Construction.

Provisions of statute are as broad as any requirements that court could ordinarily prescribe in exercise to its inherent power. In re Clifton, 33 Idaho 614, 196 P. 670 (1921).

Remedy for Violation of Trust.

It is difficult to define just what is meant by duty to support the constitution and laws of United States as provided for in subdivision 1; but mere unethical conduct is not included, since courts do not attempt to give standards of ethics the force and effect of law. In re Clifton, 33 Idaho 614, 196 P. 670 (1921). Remedy for Violation of Trust.

Where an attorney is employed by a person to secure real property belonging to the client and in the course of such employment and, before the employment terminates, such attorney secures a supposed interest in such property and repudiates his fiduciary obligation and receives in his own name the title to such property that he has been employed to secure for his client, such title will be declared to be held in trust for the use and benefit of the client. Ainsworth v. Harding, 22 Idaho 645, 128 P. 92 (1912).

Statute of Limitations.

The form of action which a client would have against his attorney for negligence would be in tort, and the statute of limitations applicable to tort actions will apply. Trimming v. Howard, 52 Idaho 412, 16 P.2d 661 (1932).

Am. Jur. 2d.

C.J.S.

ALR.

Attorneys at law: disciplinary proceedings for drafting instrument such as will or trust under which attorney-drafter or member of attorney’s family or law firm is beneficiary, grantee, legatee, or devisee. 80 A.L.R.5th 597.

Authority of Attorney in General.

An attorney-at-law has authority, by virtue of his employment as such, to do in behalf of his client all acts in or out of court necessary or incidental to the prosecution and management of a suit or action. Storey v. United States Fid. & Guar. Co., 32 Idaho 388, 183 P. 990 (1919).

There is no difference in power and authority of attorney employed by county commissioners on contingent basis and ordinary relationship of attorney and client. Barnard v. Young, 43 Idaho 382, 251 P. 1054 (1926).

Provision regarding attorney’s authority to bind client was inapplicable to agreement of attorney for judgment debtor regarding execution sale. Evans v. Power County, 50 Idaho 690, 1 P.2d 614 (1931).

In an action on an injunction bond given in a suit to enjoin collection of a judgment, a cross-complaint alleging merely that the attorneys for the judgment creditor in the injunction suit had offered in behalf of their client to deed the judgment creditors’ property to the judgment debtor, if the judgment debtor thought that it could thereby recoup their losses, was demurrable, since under the statute an attorney can bind his client in an action or proceeding only if the agreement is filed with clerk or entered upon the minutes of the court. Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 62 Idaho 683, 115 P.2d 401 (1941).

This section was not intended to enlarge or abridge the authority of the attorney, but only to prescribe the manner of its exercise, by requiring the agreement to be filed with the clerk or entered upon the minutes. Muncey v. Children’s Home Finding & Aid Soc’y, 84 Idaho 147, 369 P.2d 586 (1955).

Compromise.

Where the authority of an attorney extends no further than his employment in a case, he is without implied authority by virtue of such employment to compromise his client’s claim or cause of action, except in possible cases of an emergency. Storey v. United States Fid. & Guar. Co., 32 Idaho 388, 183 P. 990 (1919). «Title 3»«Ch. 2»«§ 3-202»

Authority of Attorney in General.

An attorney-at-law has authority, by virtue of his employment as such, to do in behalf of his client all acts in or out of court necessary or incidental to the prosecution and management of a suit or action. Storey v. United States Fid. & Guar. Co., 32 Idaho 388, 183 P. 990 (1919).

There is no difference in power and authority of attorney employed by county commissioners on contingent basis and ordinary relationship of attorney and client. Barnard v. Young, 43 Idaho 382, 251 P. 1054 (1926).

Provision regarding attorney’s authority to bind client was inapplicable to agreement of attorney for judgment debtor regarding execution sale. Evans v. Power County, 50 Idaho 690, 1 P.2d 614 (1931).

In an action on an injunction bond given in a suit to enjoin collection of a judgment, a cross-complaint alleging merely that the attorneys for the judgment creditor in the injunction suit had offered in behalf of their client to deed the judgment creditors’ property to the judgment debtor, if the judgment debtor thought that it could thereby recoup their losses, was demurrable, since under the statute an attorney can bind his client in an action or proceeding only if the agreement is filed with clerk or entered upon the minutes of the court. Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 62 Idaho 683, 115 P.2d 401 (1941).

This section was not intended to enlarge or abridge the authority of the attorney, but only to prescribe the manner of its exercise, by requiring the agreement to be filed with the clerk or entered upon the minutes. Muncey v. Children’s Home Finding & Aid Soc’y, 84 Idaho 147, 369 P.2d 586 (1955).

Compromise.

Where the authority of an attorney extends no further than his employment in a case, he is without implied authority by virtue of such employment to compromise his client’s claim or cause of action, except in possible cases of an emergency. Storey v. United States Fid. & Guar. Co., 32 Idaho 388, 183 P. 990 (1919). An attorney employed to prosecute or defend one action has no authority, by virtue of such employment, to compromise another action. Storey v. United States Fid. & Guar. Co., 32 Idaho 388, 183 P. 990 (1919).

Death of Client.

When the client dies the agency of the attorney ceases. McCornick v. Shaughnessy, 19 Idaho 465, 114 P. 22 (1911).

Duties in General.

A lawyer is an officer of the court — a minister in the temple of justice; his calling demands fidelity to clients and an eye single to their best interests as well as good faith and honorable dealing with the courts and the public. In re Burns, 55 Idaho 190, 40 P.2d 105 (1935).

It is the duty of attorney to act with complete fairness, honesty, loyalty and fidelity in all of his dealings with his client, and he is bound to the utmost good faith in dealing with him. Benting v. Spanbauer, 58 Idaho 44, 69 P.2d 983 (1937).

Presumption of Authorization.

Where counsel for defendant entered into stipulations finally disposing of road construction case, but client raised question of authorization of attorney to enter into the stipulations, it would be presumed that counsel had authorization; but it was a rebuttable presumption, and the court should hear evidence as to authorization. Howell v. Reimann, 77 Idaho 84, 288 P.2d 649 (1955).

Stipulations.

Subdivision 1 of this section has no application to stipulations or agreements between counsel with reference to matters not involved in the pending litigation. Storey v. United States Fid. & Guar. Co., 32 Idaho 388, 183 P. 990 (1919).

Attorney’s authority to make stipulations binding client is such that relief from it rests in the sound discretion of the trial court. State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649 (1938).

A stipulation between counsel entered upon the minutes of the court is generally deemed binding upon the parties. Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1994).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section was made a rule of court by order of the a supreme court dated March 19, 1951, which order was rescinded by order of the supreme court dated October 24, 1974 and appears to have been abrogated, affected or covered in part by Idaho Civil Procedure Rule 11.3.

Appeal from Order.

An application for a change of attorneys to which objection is made by the attorney is a special proceeding, the final judgment made on which is reviewable on appeal to the supreme court. Curtis v. Richards, 4 Idaho 434, 40 P. 57 (1895).

Change After Judgment.

After final judgment, a party who appeals may employ new counsel or change his attorney without notice, and the provisions of this and the following sections do not apply in such cases. Lydon v. Piper, 5 Idaho 541, 51 P. 101 (1897).

Change at Beginning of Trial.

Withdrawal of attorney’s appearance for one of two joint defendants, at beginning of trial, is permissible under this section. Bogue Supply Co. v. Davis, 36 Idaho 249, 210 P. 577 (1922).

Payment of Compensation.

As a general rule, an order changing attorney will not be made unless fees or compensation earned by the attorney is paid or facts are made to appear by the party moving for the change which show that this is impossible in the given case. Curtis v. Richards, 4 Idaho 434, 40 P. 57 (1895). «Title 3»«Ch. 2»«§ 3-203»

Compiler’s Notes.

This section was made a rule of court by order of the a supreme court dated March 19, 1951, which order was rescinded by order of the supreme court dated October 24, 1974 and appears to have been abrogated, affected or covered in part by Idaho Civil Procedure Rule 11.3.

Appeal from Order.

An application for a change of attorneys to which objection is made by the attorney is a special proceeding, the final judgment made on which is reviewable on appeal to the supreme court. Curtis v. Richards, 4 Idaho 434, 40 P. 57 (1895).

Change After Judgment.

After final judgment, a party who appeals may employ new counsel or change his attorney without notice, and the provisions of this and the following sections do not apply in such cases. Lydon v. Piper, 5 Idaho 541, 51 P. 101 (1897).

Change at Beginning of Trial.

Withdrawal of attorney’s appearance for one of two joint defendants, at beginning of trial, is permissible under this section. Bogue Supply Co. v. Davis, 36 Idaho 249, 210 P. 577 (1922).

Payment of Compensation.

Ratification.

As a general rule, an order changing attorney will not be made unless fees or compensation earned by the attorney is paid or facts are made to appear by the party moving for the change which show that this is impossible in the given case. Curtis v. Richards, 4 Idaho 434, 40 P. 57 (1895). Ratification.

Ratification by the client of the unauthorized act of his attorney can not be inferred in the absence of knowledge of all of the material facts on the part of the client. Storey v. United States Fid. & Guar. Co., 32 Idaho 388, 183 P. 990 (1919).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section was made a rule of court by order of the supreme court dated March 19, 1951, which order was rescinded by order of the supreme court dated October 24, 1974, and appears to have been abrogated, affected or covered in part by Idaho Civil Procedures Rules 11(b)(1) to 11(b)(4).

Appeal.

After final judgment, a party who appeals may employ new counsel or change his attorney without notice. Lydon v. Piper, 5 Idaho 541, 51 P. 101 (1897).

Cross References.

Logging lien, foreclosure, attorney’s fees recoverable as costs,§ 45-413.

Mechanic’s liens, foreclosure, attorney’s fees recoverable as costs,§ 45-513.

Railroads, suit for damages against, attorney’s fees recoverable as costs,§ 62-409.

Wages, suit for, attorney’s fees recoverable as costs,§ 45-605.

Worker’s compensation, attorney fees, fixing of,§ 72-804.

Agreement to Pay Fees.

Where, in signing a promissory note, the defendant had agreed that in case a suit or action to collect the note was instituted he would “pay such sum as the court may adjudge reasonable as attorney fees in such suit or action,” the plaintiff was entitled to recover attorney fees in an action to collect the funds due on the promissory note. Sherwood & Roberts, Inc. v. Riplinger, 103 Idaho 535, 650 P.2d 677 (1982).

Appeal.

Upon affirming a judgment, the supreme court awarded additional attorney’s fees and directed the trial court to add the amount thereof to plaintiff’s judgment. Twin Harbors Lumber Co. v. Carrico, 92 Idaho 343, 442 P.2d 753 (1968).

Bankruptcy.

Attorneys who claimed they were owed fees for services they performed for a husband and wife (debtors) and for a business were not allowed to recover those fees from proceeds a Chapter 7 trustee derived when he sold real property the debtors and the business owned, even though the attorneys had filed charging liens against the property, because the attorneys had not reduced their claims to judgments before they filed their liens. Hopkins v. Thomason Farms, Inc. (In re Thomason), Case No. 03-42400, 2009 Bankr. LEXIS 1769 (Bankr. D. Idaho June 24, 2009).

Construction and Application.

The common law rule of champerty does not prevail in this state; the compensation of attorneys is left to the agreement of the parties, and, when such agreement is not contrary to good morals or sound public policy, it will be enforced by the courts. Merchants Protective Ass’n v. Jacobsen, 22 Idaho 636, 127 P. 315 (1912).

Where defendant served several corporations both as general counsel and general manager, he had no common-law attorney’s lien on the records of such corporations for payment of fees, assuming such liens were not replaced by this section, since his relationship with the corporations was not only as an attorney, but also as general manager of each of them. Silver Bowl, Inc. v. Equity Metals, Inc., 93 Idaho 487, 464 P.2d 926 (1970).

No valid attorney’s lien was ever created upon a corporation’s books and records where the former legal counsel for the corporation attempted to use such a lien to recover compensation for managerial services rendered to the corporation, and totally unrelated to the legal services performed by him. Nancy Lee Mines, Inc. v. Harrison, 93 Idaho 652, 471 P.2d 39 (1970).

The plain language of this section allows only for a lien in favor of a lawyer against the lawyer’s own client. Elsaesser v. Raeon, 235 Bankr. 476 (Bankr. D. Idaho 1999).

Contingent Fees.

The charging lien, codified by this section, is a lien for the attorney’s services rendered in procuring a judgment, decree, or award for his client, which attaches to the client’s cause of action, verdict and judgment and the proceeds thereof, is not dependent upon possession of the client’s documents, money, or other property, and is capable of adjudication and enforcement. Clark v. Jones Gledhill Fuhrman Gourley, P.A., 163 Idaho 215, 409 P.3d 795 (2017). Contingent Fees.

Contingent fees have generally been held a legitimate method of compensation, so long as they are reasonable. Barnard v. Young, 43 Idaho 382, 251 P. 1054 (1926).

Counties.

The legislature cannot require a county to pay costs and attorney’s fees in civil private litigation to which the county is not a party. Bear Lake County v. Budge, 9 Idaho 703, 75 P. 614 (1904).

There is nothing in statutes which places counties in any different category than individuals in employment of attorneys. Barnard v. Young, 43 Idaho 382, 251 P. 1054 (1926).

Discharge of Lien.

Attorney’s lien can be discharged only by payment, express agreement backed by consideration, or laches. Hansbrough v. D.W. Standrod & Co., 43 Idaho 119, 249 P. 897 (1926).

This section gives a lien on any judgment or the proceeds thereof and can not be affected by any settlement by the parties before or after judgment; it can only be discharged by payment and it is not lost as against the judgment debtor though he pay the judgment without actual notice of the lien. Renfro v. Nixon, 55 Idaho 532, 45 P.2d 595 (1935), overruled on other grounds, Frazee v. Frazee, 104 Idaho 463, 660 P.2d 928 (1983), and overruled on other grounds, Kinghorn v. Clay, 153 Idaho 462, 283 P.3d 779 (2012).

Divorce Actions.

Action of divorce may be continued after condonation of parties for purpose of enforcing lien of attorney for services rendered in suit. Taylor v. Taylor, 33 Idaho 445, 196 P. 211 (1921).

Where decree did not require husband to pay fees of wife’s attorney, the court could not fix fees of attorneys in the proceeding or place a lien for such fees on real estate in which wife had an interest. Heslip v. Heslip, 74 Idaho 368, 262 P.2d 999 (1953).

Filing of Claim.

Attorney was not required to file an independent action but could file his claim of attorney’s lien in connection with the principal case. Frazee v. Frazee, 104 Idaho 463, 660 P.2d 928 (1983).

An attorney may assert a claim of entitlement to a fee and a claim of entitlement to collect the fee from a particular fund in the same case where the client’s action against a third party is adjudicated, unless some prejudice would result from doing so. Knight Ins., Inc. v. Knight, 109 Idaho 56, 704 P.2d 960 (Ct. App. 1985).

Attorney was not entitled to a lien on funds paid by an insurance company to the insured where the attorney had not filed a claim or counter claim, but settled with the insurance company before filing suit. Kenneth F. White, Chtd. v. St. Alphonsus Reg’l Med. Ctr., 136 Idaho 238, 31 P.3d 926 (Ct. App. 2001).

Even if an attorney’s appeal of the denial of a motion to perfect an attorney’s lien was not dismissed due to lack of standing, the attorney still would not prevail on the merits; the attorney had not commenced an action or filed a counterclaim. Kinghorn v. Clay, 153 Idaho 462, 283 P.3d 779 (2012).

Contingent Fees.

To foreclose a charging lien, an attorney may intervene in the underlying litigation, and the court may conduct ancillary proceedings to reduce the lien to judgment, or the attorney may commence a separate action to reduce the lien to judgment. Both courses require a complaint served on all relevant counsel and parties, summarizing the relevant fee agreement, identifying the nature of the lien and the lien’s creation and attachment, describing the attorney’s work performed and any results obtained, stating the underlying case’s procedural posture, and setting forth a sworn estimate of the amount of the lien, after which the court must find, by a preponderance of the evidence, that the attorney’s work produced the res and that the claimed fees are reasonable. Clark v. Jones Gledhill Fuhrman Gourley, P.A., 163 Idaho 215, 409 P.3d 795 (2017). Contingent Fees.

Contingent fees have generally been held a legitimate method of compensation, so long as they are reasonable. Barnard v. Young, 43 Idaho 382, 251 P. 1054 (1926).

Counties.

The legislature cannot require a county to pay costs and attorney’s fees in civil private litigation to which the county is not a party. Bear Lake County v. Budge, 9 Idaho 703, 75 P. 614 (1904).

There is nothing in statutes which places counties in any different category than individuals in employment of attorneys. Barnard v. Young, 43 Idaho 382, 251 P. 1054 (1926).

Discharge of Lien.

Attorney’s lien can be discharged only by payment, express agreement backed by consideration, or laches. Hansbrough v. D.W. Standrod & Co., 43 Idaho 119, 249 P. 897 (1926).

This section gives a lien on any judgment or the proceeds thereof and can not be affected by any settlement by the parties before or after judgment; it can only be discharged by payment and it is not lost as against the judgment debtor though he pay the judgment without actual notice of the lien. Renfro v. Nixon, 55 Idaho 532, 45 P.2d 595 (1935), overruled on other grounds, Frazee v. Frazee, 104 Idaho 463, 660 P.2d 928 (1983), and overruled on other grounds, Kinghorn v. Clay, 153 Idaho 462, 283 P.3d 779 (2012).

Divorce Actions.

Action of divorce may be continued after condonation of parties for purpose of enforcing lien of attorney for services rendered in suit. Taylor v. Taylor, 33 Idaho 445, 196 P. 211 (1921).

Where decree did not require husband to pay fees of wife’s attorney, the court could not fix fees of attorneys in the proceeding or place a lien for such fees on real estate in which wife had an interest. Heslip v. Heslip, 74 Idaho 368, 262 P.2d 999 (1953).

Filing of Claim.

Attorney was not required to file an independent action but could file his claim of attorney’s lien in connection with the principal case. Frazee v. Frazee, 104 Idaho 463, 660 P.2d 928 (1983).

An attorney may assert a claim of entitlement to a fee and a claim of entitlement to collect the fee from a particular fund in the same case where the client’s action against a third party is adjudicated, unless some prejudice would result from doing so. Knight Ins., Inc. v. Knight, 109 Idaho 56, 704 P.2d 960 (Ct. App. 1985).

Attorney was not entitled to a lien on funds paid by an insurance company to the insured where the attorney had not filed a claim or counter claim, but settled with the insurance company before filing suit. Kenneth F. White, Chtd. v. St. Alphonsus Reg’l Med. Ctr., 136 Idaho 238, 31 P.3d 926 (Ct. App. 2001).

Even if an attorney’s appeal of the denial of a motion to perfect an attorney’s lien was not dismissed due to lack of standing, the attorney still would not prevail on the merits; the attorney had not commenced an action or filed a counterclaim. Kinghorn v. Clay, 153 Idaho 462, 283 P.3d 779 (2012).

Foreclosure of Mortgage.

To foreclose a charging lien, an attorney may intervene in the underlying litigation, and the court may conduct ancillary proceedings to reduce the lien to judgment, or the attorney may commence a separate action to reduce the lien to judgment. Both courses require a complaint served on all relevant counsel and parties, summarizing the relevant fee agreement, identifying the nature of the lien and the lien’s creation and attachment, describing the attorney’s work performed and any results obtained, stating the underlying case’s procedural posture, and setting forth a sworn estimate of the amount of the lien, after which the court must find, by a preponderance of the evidence, that the attorney’s work produced the res and that the claimed fees are reasonable. Clark v. Jones Gledhill Fuhrman Gourley, P.A., 163 Idaho 215, 409 P.3d 795 (2017). Foreclosure of Mortgage.

The action to foreclose a mortgage given to secure several notes is a separate and distinct action and but one fee can be allowed in such action; the fee to be allowed is the one stipulated by the mortgage to be reasonable. Lewis v. Sutton, 21 Idaho 541, 122 P. 911 (1912).

Attorney’s lien for services in foreclosure suit attached to land after mortgage foreclosure sale and purchase by administratrix, who was judgment creditor and sole legatee, because land became proceeds of judgment. Miller v. Monroe, 50 Idaho 726, 300 P. 362 (1931).

Funds Held by Court.

Where law firm sought to enforce attorney’s lien against client, the fact that funds were held by court rather than actually received by the client did not bar enforcement, since this section contemplates that funds available for distribution by judicial order are subject to attorney’s lien. Skelton v. Spencer, 102 Idaho 69, 625 P.2d 1072, cert. denied, 454 U.S. 894, 102 S. Ct. 390, 70 L. Ed. 2d 208 (1981), overruled in part, Kinghorn v. Clay, — Idaho —, 283 P.3d 779 (2012).

Lien.

An attorney has no lien for fees for appearance on behalf of the state. State v. National Sur. Co., 29 Idaho 670, 161 P. 1026 (1916).

Application of plaintiff’s attorneys for an order granting them a lien upon prospective judgment is to protect them in the payment of their fees in the event the plaintiff should recover judgment. Allen v. General Ins. Co., 42 F.2d 901 (D. Idaho 1930).

Where attorneys brought suit for, inter alia, a lien on a check made payable to their client, depositing check with clerk of court was not such release of possession as to destroy their lien thereon. Keane v. McFee, 75 Idaho 541, 275 P.2d 960 (1954).

An attorney’s charging lien did not exist in Idaho at common law; however, such has been codified in Idaho by this section. Frazee v. Frazee, 104 Idaho 463, 660 P.2d 928 (1983).

The charging lien of an attorney is equitable in nature and triable to the court. The equitable source of the charging lien necessitates that an attorney take affirmative steps in an adjudicative process to perfect and reduce his lien to a judgment or order of the court. Frazee v. Frazee, 104 Idaho 463, 660 P.2d 928 (1983).

Multiple Legal Actions.

The attorney who represented the plaintiffs in a 42 USC § 1983 action had a valid claim of lien; however, there could be no adjudication that the attorney had a valid lien in any amount until it was first determined that some amount was owing from the plaintiffs to the attorney in addition to those fees already paid. Jarman v. Hale, 112 Idaho 270, 731 P.2d 813 (Ct. App. 1986) Jarman v. Hale, 122 Idaho 952, 842 P.2d 288 (Ct. App. 1992). Multiple Legal Actions.

Where law firm had entered into written agreement with client regarding fees for three separate but interrelated legal actions, firm was entitled to enforce its lien under this section by petition in any one of the actions pending after proper notice was given to the client. Skelton v. Spencer, 102 Idaho 69, 625 P.2d 1072, cert. denied, 454 U.S. 894, 102 S. Ct. 390, 70 L. Ed. 2d 208 (1981), overruled in part, Kinghorn v. Clay, — Idaho —, 283 P.3d 779 (2012).

Non-Fund Lien.

Although the language of this section grants an automatic lien on a “fund” created by the efforts of an attorney, as long as certain elements are satisfied, a valid lien might also arise in a non-fund situation, provided a court properly adjudicates the lien and perfects it by judgment. Elsaesser v. Raeon, 235 Bankr. 476 (Bankr. D. Idaho 1999).

Priority of Lien.

Attorney’s lien results on proceeds of judgment of foreclosure on behalf of insolvent bank, obtained before insolvency and is prior lien to that of depositors and other creditors of bank. Fralick v. Coeur d’Alene Bank & Trust Co., 35 Idaho 749, 208 P. 835 (1922).

Attorney’s lien on corporate stock was not lost by owner of stock pledging it for a pre-existing debt, although pledgee was without notice of the lien. Hansbrough v. D.W. Standrod & Co., 49 Idaho 216, 286 P. 923 (1930).

Purpose.

The purpose of this section is to secure payment for legal services rendered by allowing the attorney an interest in the fruits of his skill and labors. Jarman v. Hale, 112 Idaho 270, 731 P.2d 813 (Ct. App. 1986) Jarman v. Hale, 122 Idaho 952, 842 P.2d 288 (Ct. App. 1992).

Reasonableness.

Attorney for wife in divorce action could not, when client failed to pay his fee, levy against the property of the husband, who was a total stranger to the contract under which fee was claimed, without the necessity of proving the reasonableness of the claimed fees in an adjudicative proceeding. Frazee v. Frazee, 104 Idaho 463, 660 P.2d 928 (1983).

Satisfaction of Lien.

In suit to enforce lien for fees of $750 in foreclosure suit, agreement with his client to accept minimum fee of $75.00 in event of failure to redeem, states a good defense. Benting v. Spanbauer, 58 Idaho 44, 69 P.2d 983 (1937).

Where defendant secured satisfaction of a judgment by subterfuge without knowledge of plaintiff’s attorneys, defendant was liable for his attorney’s fees. Updegraff v. Adams, 66 Idaho 795, 169 P.2d 501 (1946).

Worker’s Compensation.

Multiple Legal Actions.

This section did not limit the authority of the Idaho industrial commission to adopt an administrative rule, IDAPA 17.02.08.033, to regulate the amount of reasonable attorney fees that are to be paid in workers’ compensation cases, and the adoption of that administrative rule did not, in effect, repeal this section. Seiniger Law Offices, P.A. v. State Ex Rel. Indus. Comm’n, 154 Idaho 461, 299 P.3d 773 (2013). Multiple Legal Actions.

Where law firm had entered into written agreement with client regarding fees for three separate but interrelated legal actions, firm was entitled to enforce its lien under this section by petition in any one of the actions pending after proper notice was given to the client. Skelton v. Spencer, 102 Idaho 69, 625 P.2d 1072, cert. denied, 454 U.S. 894, 102 S. Ct. 390, 70 L. Ed. 2d 208 (1981), overruled in part, Kinghorn v. Clay, — Idaho —, 283 P.3d 779 (2012).

Non-Fund Lien.

Although the language of this section grants an automatic lien on a “fund” created by the efforts of an attorney, as long as certain elements are satisfied, a valid lien might also arise in a non-fund situation, provided a court properly adjudicates the lien and perfects it by judgment. Elsaesser v. Raeon, 235 Bankr. 476 (Bankr. D. Idaho 1999).

Priority of Lien.

Attorney’s lien results on proceeds of judgment of foreclosure on behalf of insolvent bank, obtained before insolvency and is prior lien to that of depositors and other creditors of bank. Fralick v. Coeur d’Alene Bank & Trust Co., 35 Idaho 749, 208 P. 835 (1922).

Attorney’s lien on corporate stock was not lost by owner of stock pledging it for a pre-existing debt, although pledgee was without notice of the lien. Hansbrough v. D.W. Standrod & Co., 49 Idaho 216, 286 P. 923 (1930).

Purpose.

The purpose of this section is to secure payment for legal services rendered by allowing the attorney an interest in the fruits of his skill and labors. Jarman v. Hale, 112 Idaho 270, 731 P.2d 813 (Ct. App. 1986) Jarman v. Hale, 122 Idaho 952, 842 P.2d 288 (Ct. App. 1992).

Reasonableness.

Attorney for wife in divorce action could not, when client failed to pay his fee, levy against the property of the husband, who was a total stranger to the contract under which fee was claimed, without the necessity of proving the reasonableness of the claimed fees in an adjudicative proceeding. Frazee v. Frazee, 104 Idaho 463, 660 P.2d 928 (1983).

Satisfaction of Lien.

In suit to enforce lien for fees of $750 in foreclosure suit, agreement with his client to accept minimum fee of $75.00 in event of failure to redeem, states a good defense. Benting v. Spanbauer, 58 Idaho 44, 69 P.2d 983 (1937).

Where defendant secured satisfaction of a judgment by subterfuge without knowledge of plaintiff’s attorneys, defendant was liable for his attorney’s fees. Updegraff v. Adams, 66 Idaho 795, 169 P.2d 501 (1946).

Worker’s Compensation.

Cited

This section did not limit the authority of the Idaho industrial commission to adopt an administrative rule, IDAPA 17.02.08.033, to regulate the amount of reasonable attorney fees that are to be paid in workers’ compensation cases, and the adoption of that administrative rule did not, in effect, repeal this section. Seiniger Law Offices, P.A. v. State Ex Rel. Indus. Comm’n, 154 Idaho 461, 299 P.3d 773 (2013). Cited In re May, 96 Idaho 858, 538 P.2d 787 (1975); Ustick v. Ustick, 104 Idaho 215, 657 P.2d 1083 (Ct. App. 1983); Maguire, Ward, Maguire & Eldredge v. Idaho Ins. Guar. Ass’n, 112 Idaho 166, 730 P.2d 1086 (Ct. App. 1986); Cole v. Kunzler, 115 Idaho 552, 768 P.2d 815 (Ct. App. 1989).

Am. Jur. 2d.

C.J.S.

ALR.

Advances, validity and propriety of arrangement by which attorney pays or advances expenses of client. 8 A.L.R.3d 1155.

Right of attorney admitted in one state to recover compensation for services rendered in another state where he was not admitted to the bar. 11 A.L.R.3d 907.

Personal liability of executor or administrator for fees of attorney employed by him for benefit of the estate. 13 A.L.R.3d 518.

Construction of contingent fee contract as regards compensation for services after judgment or on appeal. 13 A.L.R.3d 673.

Contract for attorney’s compensation made after inception of attorney-client relationship, validity and effect. 13 A.L.R.3d 701.

Infant’s liability for services rendered by attorney-at-law under contract with him. 13 A.L.R.3d 1251.

Attorney’s right to compensation as affected by disbarment or suspension before complete performance. 24 A.L.R.3d 1193.

Time from which interest begins to run on fee or disbursements owed by client to attorney. 29 A.L.R.3d 824.

Attorney’s death prior to final adjudication or settlement of case as affecting compensation under contingent fee contract. 33 A.L.R.3d 1375.

Amount of attorneys’ compensation in absence of contract or statute fixing amount. 57 A.L.R.3d 475.

Amount of attorneys’ compensation in matters involving guardianship and trusts. 57 A.L.R.3d 550.

Amount of attorneys’ fees in tort actions. 57 A.L.R.3d 584.

Amount of attorneys’ compensation in proceedings involving wills and administration of decedents’ estates. 58 A.L.R.3d 315.

Right of party who is attorney and appears for himself to award of attorney’s fees against opposing party as element of costs. 78 A.L.R.3d 1119.

Excessiveness or adequacy of attorneys’ fees in matters involving real estate — Modern cases. 10 A.L.R.5th 448.

Excessiveness or adequacy of attorneys’ fees in domestic relations cases. 17 A.L.R.5th 366.

Excessiveness or inadequacy of attorneys’ fees in matters involving commercial and general business activities. 23 A.L.R.5th 241.

Validity and enforceability of express fee — Splitting agreements between attorneys. 11 A.L.R.6th 587. Court rules and rules of professional conduct limiting amount of contingent fees or otherwise imposing conditions on contingent fee contracts. 49 A.L.R.6th 505.

Calculation of attorneys’ fees under Federal Tort Claims Act — 28 USCS § 2678. 87 A.L.R. Fed. 866.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 124; R.S., R.C., & C.L., § 4001; C.S., § 6577; I.C.A,§ 3-206; am. 1957, ch. 86, § 1, p. 136, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho Civil Procedure Rule 11.3.

Cross References.

Board of commissioners of Idaho state bar, duties concerning disbarment,§ 3-408.

Compiler’s Notes.

This section was made a rule of court by order of supreme court dated March 19, 1951 which order was rescinded by order of supreme court dated October 24, 1974.

Bar Commissioners Cautioned.

It behooves the court and bar commissioners to exercise the greatest care and diligence in order that no injustice be done in the performance of their respective duties. In re Felton, 60 Idaho 540, 94 P.2d 166 (1939).

Charge of Offense.

Where the charge of a criminal offense is not connected in any way with defendant’s office as attorney, it is generally held that courts should not enter a judgment of disbarment except upon conviction of a felony or misdemeanor involving moral turpitude. In re Baum, 32 Idaho 676, 186 P. 927 (1920).

Where an indictable crime consisting of a violation of professional duty is charged against an attorney, the court will entertain disbarment proceedings independent of any prosecution or conviction. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

Charges Not Sustained.

Charges against attorney were not sustained, and there was not sufficient proof to warrant the recommendation that petitioner be disbarred. In re Felton, 60 Idaho 540, 94 P.2d 166 (1939).

Charges Sustained.

In proceeding before the discipline committee of the state bar commission, conclusion that licensed attorney had violated this section subsequent to findings that attorney had used credit card without consent or authorization of the owner, had been convicted of driving while under the influence of intoxicating liquor, had issued a check without sufficient funds, and had failed to file a state income tax return was sufficient and indefinite suspension of attorney, with privilege of applying for reinstatement upon certain conditions after six months, was held to be appropriate discipline. In re Padgett, 95 Idaho 141, 504 P.2d 814 (1972).

Constitutionality.

This provision does not contraveneIdaho Const., Art. I, § 6, on the ground that it inflicts cruel or unusual punishment. In re Henry, 15 Idaho 755, 99 P. 1054 (1909).

Conviction of Crime.

This section does not require that the conviction be had in a court of record; on the contrary, it impliedly contemplates that some of the convictions embraced within its terms may be had in inferior courts. In re Henry, 15 Idaho 755, 99 P. 1054 (1909). Deceit and breach of confidential relations.

Bar Commissioners Cautioned.

It behooves the court and bar commissioners to exercise the greatest care and diligence in order that no injustice be done in the performance of their respective duties. In re Felton, 60 Idaho 540, 94 P.2d 166 (1939).

Charge of Offense.

Where the charge of a criminal offense is not connected in any way with defendant’s office as attorney, it is generally held that courts should not enter a judgment of disbarment except upon conviction of a felony or misdemeanor involving moral turpitude. In re Baum, 32 Idaho 676, 186 P. 927 (1920).

Where an indictable crime consisting of a violation of professional duty is charged against an attorney, the court will entertain disbarment proceedings independent of any prosecution or conviction. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

Charges Not Sustained.

Charges against attorney were not sustained, and there was not sufficient proof to warrant the recommendation that petitioner be disbarred. In re Felton, 60 Idaho 540, 94 P.2d 166 (1939).

Charges Sustained.

In proceeding before the discipline committee of the state bar commission, conclusion that licensed attorney had violated this section subsequent to findings that attorney had used credit card without consent or authorization of the owner, had been convicted of driving while under the influence of intoxicating liquor, had issued a check without sufficient funds, and had failed to file a state income tax return was sufficient and indefinite suspension of attorney, with privilege of applying for reinstatement upon certain conditions after six months, was held to be appropriate discipline. In re Padgett, 95 Idaho 141, 504 P.2d 814 (1972).

Constitutionality.

This provision does not contraveneIdaho Const., Art. I, § 6, on the ground that it inflicts cruel or unusual punishment. In re Henry, 15 Idaho 755, 99 P. 1054 (1909).

Conviction of Crime.

This section does not require that the conviction be had in a court of record; on the contrary, it impliedly contemplates that some of the convictions embraced within its terms may be had in inferior courts. In re Henry, 15 Idaho 755, 99 P. 1054 (1909). Guilt or innocence of crime of which record of conviction is shown is not in issue in disbarment proceeding. In re Kerl, 32 Idaho 737, 188 P. 40 (1920).

Conviction in California of crime involving moral turpitude justifies disbarment in Idaho. In re Mills, 71 Idaho 128, 227 P.2d 81 (1951).

The suspension of an attorney who was convicted of federal income tax evasion from practice for a period of nine months and the imposition of a $1000 fine was not unduly harsh. In re Snook, 94 Idaho 904, 499 P.2d 1260 (1972).

A conviction based upon a plea of nolo contendere to a charge of federal income tax evasion is such a conviction of a felony that subjects attorney to removal, suspension or reprimand. In re Snook, 94 Idaho 904, 499 P.2d 1260 (1972).

Deceit and Breach of Confidential Relations.

Deceit and breach of confidential relations violates this section and justifies suspension for one year. In re Carter, 59 Idaho 547, 86 P.2d 162 (1938).

Failure to Pay Over Money.

Attorney who retains entire amount collected when he is only entitled to one-half of it violates subdivision 5 of this section. In re Burns, 55 Idaho 190, 40 P.2d 105 (1935).

Subdivision 5 of this section does not require a law firm to pay a client money to which he is not entitled; accordingly, where a law firm had knowledge of the fact that its client had assigned to a creditor certain proceeds that he hoped to realize from his suit against an insurance company, the firm was required to honor the assignment, and the firm acted improperly when, after receiving the settlement proceeds from the insurance company, it paid them over to its client. Bonanza Motors, Inc. v. Webb, 104 Idaho 234, 657 P.2d 1102 (Ct. App. 1983).

False Personation.

Fact that an attorney employed about certain matters relating to desert-land entries in the United States land office corruptly persuaded another to personate one who had prior thereto made a desert-land entry at said land office was ground for disbarment. In re Badger, 4 Idaho 66, 35 P. 839 (1894).

Lending Name.

Subdivision 4 applies to regularly admitted resident attorneys of the state who, with knowledge, permit the use of their names by persons who have not been admitted, resulting in such unauthorized persons appearing as attorneys and counselors in the courts. Anderson v. Coolin, 27 Idaho 334, 149 P. 286 (1915).

Moral Turpitude.

Moral turpitude is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man; and, thus, a conviction on the charges of petit larceny is construed as an act of moral turpitude. In re Henry, 15 Idaho 755, 99 P. 1054 (1909).

The crime of aiding another to avoid registration, by advising young men, subject to registration, not to register for military service, as required by act of congress, thereby seeking to interfere with the government in its efforts to raise an army in time of war, involves moral turpitude. In re Hofstede, 31 Idaho 448, 173 P. 1087 (1918). See also In re Kerl, 32 Idaho 737, 188 P. 40 (1920). Guilt or innocence of crime of which record of conviction is shown is not in issue in disbarment proceeding. In re Kerl, 32 Idaho 737, 188 P. 40 (1920).

Conviction in California of crime involving moral turpitude justifies disbarment in Idaho. In re Mills, 71 Idaho 128, 227 P.2d 81 (1951).

The suspension of an attorney who was convicted of federal income tax evasion from practice for a period of nine months and the imposition of a $1000 fine was not unduly harsh. In re Snook, 94 Idaho 904, 499 P.2d 1260 (1972).

A conviction based upon a plea of nolo contendere to a charge of federal income tax evasion is such a conviction of a felony that subjects attorney to removal, suspension or reprimand. In re Snook, 94 Idaho 904, 499 P.2d 1260 (1972).

Deceit and Breach of Confidential Relations.

Deceit and breach of confidential relations violates this section and justifies suspension for one year. In re Carter, 59 Idaho 547, 86 P.2d 162 (1938).

Failure to Pay Over Money.

Attorney who retains entire amount collected when he is only entitled to one-half of it violates subdivision 5 of this section. In re Burns, 55 Idaho 190, 40 P.2d 105 (1935).

Subdivision 5 of this section does not require a law firm to pay a client money to which he is not entitled; accordingly, where a law firm had knowledge of the fact that its client had assigned to a creditor certain proceeds that he hoped to realize from his suit against an insurance company, the firm was required to honor the assignment, and the firm acted improperly when, after receiving the settlement proceeds from the insurance company, it paid them over to its client. Bonanza Motors, Inc. v. Webb, 104 Idaho 234, 657 P.2d 1102 (Ct. App. 1983).

False Personation.

Fact that an attorney employed about certain matters relating to desert-land entries in the United States land office corruptly persuaded another to personate one who had prior thereto made a desert-land entry at said land office was ground for disbarment. In re Badger, 4 Idaho 66, 35 P. 839 (1894).

Lending Name.

Subdivision 4 applies to regularly admitted resident attorneys of the state who, with knowledge, permit the use of their names by persons who have not been admitted, resulting in such unauthorized persons appearing as attorneys and counselors in the courts. Anderson v. Coolin, 27 Idaho 334, 149 P. 286 (1915).

Moral Turpitude.

Moral turpitude is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man; and, thus, a conviction on the charges of petit larceny is construed as an act of moral turpitude. In re Henry, 15 Idaho 755, 99 P. 1054 (1909).

The crime of aiding another to avoid registration, by advising young men, subject to registration, not to register for military service, as required by act of congress, thereby seeking to interfere with the government in its efforts to raise an army in time of war, involves moral turpitude. In re Hofstede, 31 Idaho 448, 173 P. 1087 (1918). See also In re Kerl, 32 Idaho 737, 188 P. 40 (1920). Whether or not offense involves moral turpitude is for determination of court. In re Dampier, 46 Idaho 195, 267 P. 452 (1928).

“Felony or misdemeanor involving moral turpitude” as used in this section is intended to include only crimes involving moral turpitude under laws of this state. In re Dampier, 46 Idaho 195, 267 P. 452 (1928).

It is not required that an attorney be free from every vice, and a single act of immorality, not affecting his professional integrity, is not sufficient to justify his disbarment. In re Dampier, 46 Idaho 195, 267 P. 452 (1928).

Conviction under United States statute for sending obscene letters through the mail does not necessarily involve moral turpitude in offense, when viewed in light of state legislation. In re Dampier, 46 Idaho 195, 267 P. 452 (1928). See also In re Downs, 46 Idaho 464, 268 P. 17 (1928).

Drawing check without funds is crime involving moral turpitude because fraud is element thereof. In re Mills, 71 Idaho 128, 227 P.2d 81 (1951).

This section does not require conviction of a felony involving moral turpitude because “moral turpitude” modifies misdemeanor rather than felony. In re Snook, 94 Idaho 904, 499 P.2d 1260 (1972).

Object and Nature of Proceeding.

A disbarment proceeding is not a criminal action nor its purpose the punishment of the attorney, but it is intended to protect the public and those charged with the administration of justice. In re Wourms, 31 Idaho 291, 170 P. 919 (1918); In re Kerl, 32 Idaho 737, 188 P. 40 (1920); In re Carter, 59 Idaho 547, 86 P.2d 162 (1938).

Disbarment proceeding is not a lawsuit between parties litigant; it is in the nature of an inquest or inquiry as to the conduct of the accused. It is not a criminal proceeding, but one of a civil nature. In re Baum, 32 Idaho 676, 186 P. 927 (1920).

Prior Civil or Criminal Proceedings Not Prerequisite.

A prior civil action or criminal proceeding looking to the redressing of the injured person’s wrongs, or the punishment of the attorney against whom the charges are made, is not a condition precedent to the prosecution of disbarment proceedings. In re Burns, 55 Idaho 190, 40 P.2d 105 (1935).

Procuring License on False Affidavit.

An applicant who makes a false affidavit, stating his admission to the highest court of another state, and, upon such affidavit, procures his admission to practice in the courts of this state, will be disbarred. In re Bradley, 14 Idaho 784, 96 P. 208 (1908).

Representing Conflicting Interests.

It is improper for a village attorney to bring an action against the village, but where attorney acts in good faith while doing so, there is no cause for disbarment. In re Baum, 32 Idaho 676, 186 P. 927 (1920). Fact that an attorney represented conflicting interests in an action is not grounds for disbarment, where he acted in good faith, without improper or corrupt motives, and no injury resulted to his client. In re Baum, 32 Idaho 676, 186 P. 927 (1920).

Settlement with Client Not a Defense.

A settlement between the attorney and his client is no defense in a proceeding for disbarment. In re Burns, 55 Idaho 190, 40 P.2d 105 (1935).

Support of Constitution and Laws.

It is difficult to define just what is meant by supporting laws and constitution of United States, but it has been concluded to mean the duty to obey laws of land under our constitutional form of government. In re Clifton, 33 Idaho 614, 196 P. 670 (1921) (certain acts committed and opinions expressed during the late war held not ground for disbarment).

Suspension Pending Hearing.

An attorney will not be suspended from his privileges as such pending the hearing on disbarment charges preferred against him. State v. Goode, 4 Idaho 730, 44 P. 640 (1896).

Am. Jur. 2d.

C.J.S.

ALR.

Conflicting interests, what constitutes representation of, subjecting attorney to disciplinary action. 17 A.L.R.3d 835.

Attorney’s right to compensation as affected by disbarment or suspension before complete performance. 24 A.L.R.3d 1193.

Publication and distribution of announcement of new or changed associations or addresses, change of firm name, or the like as ground for disciplinary action. 53 A.L.R.3d 1261.

Disciplinary proceeding based upon attorney’s naming of himself or associate as executor or attorney for executor in will drafted by him. 57 A.L.R.3d 703.

Pardon as defense to disbarment of attorney. 59 A.L.R.3d 466.

Entrapment as a defense in proceedings to revoke or suspend license to practice law or medicine. 61 A.L.R.3d 357.

Use in disbarment proceedings of testimony given by attorney in criminal proceeding under grant of immunity. 62 A.L.R.3d 1145.

Federal income tax conviction as involving moral turpitude warranting disciplinary action against attorney. 63 A.L.R.3d 476.

Federal income tax conviction as constituting nonprofessional misconduct warranting disciplinary action against attorney. 63 A.L.R.3d 512.

Rights and duties of attorney in a criminal prosecution where client informs him of intention to present perjured testimony. 64 A.L.R.3d 385.

Power of court to order restitution for wronged client in disciplinary proceeding against attorney. 75 A.L.R.3d 307. Effect of acquittal or dismissal in criminal prosecution as barring disciplinary action against attorney. 76 A.L.R.3d 1028.

Disciplinary action against attorney prior to exhaustion of appellate review of conviction. 76 A.L.R.3d 1061.

Failure to communicate with client as basis for disciplinary action against attorney. 80 A.L.R.3d 1240.

Disciplinary action against attorney or accountant for misconduct related to preparation of tax returns for others. 81 A.L.R.3d 1140.

Disbarment or suspension of attorney in one state as affecting right to continue to practice in another state. 81 A.L.R.3d 1281.

Restricting access to records of disciplinary proceedings against attorneys. 83 A.L.R.3d 749.

Discovery or inspection of state bar records, of complaints against or investigations of attorneys. 83 A.L.R.3d 777.

Attorney’s charging excessive fee as ground for disciplining action. 11 A.L.R.4th 133.

Attorney’s failure to attend court, or tardiness, as contempt. 13 A.L.R.4th 122.

Advertising as ground for disciplining attorney. 30 A.L.R.4th 742.

Bringing of frivolous claim or action as ground for disciplining attorney, 85 A.L.R.4th 544.

Attorneys at law: disciplinary proceedings for drafting instrument such as will or trust under which attorney-drafter or member of attorney’s family or law firm is beneficiary, grantee, legatee, or devisee. 80 A.L.R.5th 597.

Propriety of radio and television attorney advertisements. 20 A.L.R.6th 385.

Disciplining attorney for abuse or misuse of computer technology, including internet and e-mail activities. 46 A.L.R.6th 365.

Compiler’s Notes.

This section was made a rule of court by order of supreme court dated March 19, 1951 which order was rescinded by order of supreme court dated October 24, 1974.

Conviction in Federal Court.

This section is not obligatory upon federal courts or their officers; failure to conform to it does not interfere with the power and duty of the court to proceed upon its own motion or otherwise in disbarment cases, whenever facts justifying such action are brought to its attention. In re Hofstede, 31 Idaho 448, 173 P. 1087 (1918).

Am. Jur. 2d.

C.J.S.

Cross References.

Board of commissioners of Idaho state bar, procedure in disciplinary proceedings,§§ 3-412 to 3-416.

Compiler’s Notes.

This section was made a rule of court by order of supreme court dated March 19, 1951 which order was rescinded by order of supreme court dated October 24, 1974.

Conviction of Crime.

Where an indictable crime is charged against an attorney, the supreme court will not proceed in disbarment proceedings until criminal proceedings have been taken in the district court, or until sufficient time has elapsed to accord the proper authorities opportunity to prosecute the case in that court. In re Tipton, 4 Idaho 513, 42 P. 504 (1895).

Where an attorney-at-law, admitted to practice in Idaho, has been convicted of a crime involving moral turpitude and a certified copy of the record of his conviction has been filed in the supreme court with a view to bringing about his disbarment, his guilt or innocence is not in issue. In re Kerl, 32 Idaho 737, 188 P. 40 (1920).

Where an indictable crime consisting of violation of professional duty is charged against an attorney, the court will entertain disbarment proceedings independent of any prosecution or conviction. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

When attorney is convicted of crime involving moral turpitude in courts of the state, it is duty of clerk to transmit certified copy of record of conviction to supreme court and the record of conviction is conclusive; whether offense involves moral turpitude is for determination of court. In re Dampier, 46 Idaho 195, 267 P. 452 (1928).

Costs.

There is no authority for allowing costs against attorney in disbarment proceedings. In re Carter, 59 Idaho 547, 86 P.2d 162 (1938).

Suspension Pending Hearing.

An attorney will not be suspended from his privileges as such pending the hearing on disbarment charges preferred against him. State v. Goode, 4 Idaho 730, 44 P. 640 (1896).

Trial Based on Charges.

Trial of an attorney in disbarment proceedings can be had only on charges contained in the information or rule. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

Am. Jur. 2d.

C.J.S.

Constitutionality.

S.L. 1923, ch. 211 was held unconstitutional on the grounds that its title was delusive and misleading, and that it was a special act creating a corporation. Jackson v. Gallet, 39 Idaho 382, 228 P. 1068 (1924). But S.L. 1923, ch. 211, as amended by S.L. 1925, chaps. 89 and 90, was held constitutional. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

S.L. 1923, ch. 211, as amended by S.L. 1925, chaps. 89 and 90, did not create a corporation by special act. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

S.L. 1923, ch. 211, as amended by S.L. 1925, chaps. 89 and 90, held not unconstitutional as depriving supreme court of jurisdiction. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

Good Faith.

Where defendant had not held himself out as competent or qualified to practice law having merely assisted a person in the preparation of adoption papers by typing them, using others submitted to him for style and content, but he then declined to assist such person further, and returned $10.00 paid him, after being advised that his acts might be unlawful, such acts indicated good faith on his part and further indicated an injunction against further unauthorized practice would be unnecessary. Idaho State Bar v. Meservy, 80 Idaho 504, 335 P.2d 62 (1959).

Purpose.

Primary purpose of contempt and injunction proceedings is to protect public against unskilled and unauthorized would-be practitioners. Idaho State Bar v. Meservy, 80 Idaho 504, 335 P.2d 62 (1959).

RESEARCH REFERENCES

ALR.

Cross References.

Department of self-governing agencies,§ 67-2601 et seq.

Division of state bar,§ 3-404.

Compiler’s Notes.

The words “this act” refer to S.L. 1923, ch. 211, as amended by S.L. 1925, chs. 89 and 90, which is compiled as§§ 3-401 to 3-420.

Effective Dates.

Section 5 of S.L. 1974, ch. 42 declared an emergency. Approved March 4, 1974.

Section 194 of S.L. 1974, ch. 13 provided that the act be in full force and effect on and after July 1, 1974.

Compiler’s Notes.

The bracketed word “of” in the sixth sentence was inserted by the compiler.

For words “this act”, see Compiler’s Notes,§ 3-402.

Compiler’s Notes.

For words “this act”, see Compiler’s Notes,§ 3-402.

Effective Dates.

Section 5 of S.L. 1974, ch. 42 declared an emergency. Approved March 4, 1974.

Cross References.

License fee,§ 3-409.

Amendments.

The 2010 amendment, by ch. 27, near the middle, substituted “this chapter” for “this Act” and inserted “attorney magistrates” and “court and court of appeals” and “justices.”

Compiler’s Notes.

This section as enacted in 1923 contained a third sentence which was omitted as temporary and which read, “For the purposes of the first election the petitions shall be sent through the mails to the above provided election and canvassing board.”

Effective Dates.

Section 2 of S.L. 1963, ch. 333 declared an emergency. Approved February 20, 1963.

Constitutionality.

S.L. 1923, ch. 211 (§§ 3-401 — 3-420), as amended by S.L. 1925, chaps. 89 and 90, did not create a corporation by special act. In re Edwards, 45 Idaho 676, 266 P. 665 (1928). See Jackson v. Gallet, 39 Idaho 382, 228 P. 1068 (1924).

Cross References.

Admission to practice,§ 3-101 et seq.

Change or withdrawal of attorney, Idaho R. Civ. P. 11.3.

Rights and duties of attorneys,§ 3-201 et seq.

Compiler’s Notes.

The Idaho central criminal history database, referred to in the second sentence, is the state’s central repository of criminal history, maintained by the Idaho state police, bureau of criminal identification.

See http://www.isp.idaho.gov/identification/crime_history .

The federal bureau of investigation criminal history database, referred to in the second sentence, is the integrated automated fingerprint identification system (IAFIS), maintained by the criminal justice information services division of the federal bureau of investigation. See http://www.fbi.gov/hq/cjisd/iafis.htm .

The words “this act”, near the end of the first paragraph, refer to S.L. 1923, ch. 211, as amended by S.L. 1925, chs. 89 and 90, which is compiled as§§ 3-401 to 3-420.

Cause for Disbarment.

Commission has no power to make and enter a judgment of disbarment for matters wholly outside of and in no way connected with the practice of law. In re Dampier, 46 Idaho 195, 267 P. 452 (1928).

Constitutionality.

This section, prior to its amendment in 1929, was held unconstitutional, in part, as an attempt to clothe the board with judicial powers. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

Rules authorizing the board to act merely in an administrative capacity and as an arm of the supreme court, with the power to make investigations and return to the supreme court its findings and conclusions thereon, are not unconstitutional. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

1923, ch. 211, § 8, p. 343; am. 1929, ch. 98, § 2, p. 159; I.C.A.,§ 3-408; am. 2002, ch. 297, § 1, p. 852.

Cross References.

Admission to practice,§ 3-101 et seq.

Change or withdrawal of attorney, Idaho R. Civ. P. 11.3.

Rights and duties of attorneys,§ 3-201 et seq.

Compiler’s Notes.

The Idaho central criminal history database, referred to in the second sentence, is the state’s central repository of criminal history, maintained by the Idaho state police, bureau of criminal identification.

See http://www.isp.idaho.gov/identification/crime_history .

The federal bureau of investigation criminal history database, referred to in the second sentence, is the integrated automated fingerprint identification system (IAFIS), maintained by the criminal justice information services division of the federal bureau of investigation. See http://www.fbi.gov/hq/cjisd/iafis.htm .

The words “this act”, near the end of the first paragraph, refer to S.L. 1923, ch. 211, as amended by S.L. 1925, chs. 89 and 90, which is compiled as§§ 3-401 to 3-420.

Cause for Disbarment.

Commission has no power to make and enter a judgment of disbarment for matters wholly outside of and in no way connected with the practice of law. In re Dampier, 46 Idaho 195, 267 P. 452 (1928).

Constitutionality.

This section, prior to its amendment in 1929, was held unconstitutional, in part, as an attempt to clothe the board with judicial powers. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

Due Process.

Rules authorizing the board to act merely in an administrative capacity and as an arm of the supreme court, with the power to make investigations and return to the supreme court its findings and conclusions thereon, are not unconstitutional. In re Edwards, 45 Idaho 676, 266 P. 665 (1928). Due Process.

The failure of the Idaho bar commission to make findings of fact deprived a bar applicant of his right to due process of law. His interest in practicing law in Idaho was a substantial interest. The administrative cost of making findings of fact would be minimal. There would be no ancillary disruptive effect on the administrative efficiency of the commission. Dexter v. Idaho State Bd. of Comm’rs, 116 Idaho 790, 780 P.2d 112 (1989).

Findings of Fact and Conclusions of Law.

Even though Idaho bar commission rules merely require that the commission “enter its decision affirming or reversing its previous action within 14 days,” the commissioners have a duty to formulate findings of fact and conclusions of law so that a reviewing court may have a basis to conduct meaningful review. Dexter v. Idaho State Bd. of Comm’rs, 116 Idaho 790, 780 P.2d 112 (1989).

Length of Suspension.

Transcript and record showed that three months’ suspension was insufficient and petitioner should be suspended for a year. In re Burns, 55 Idaho 190, 40 P.2d 105 (1935).

Powers of Supreme Court and Board.

Supreme court has inherent power over admission to practice law, discipline of persons admitted, and disbarment. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

S.L. 1923, ch. 211 (§§ 3-401 to 3-420), as amended by S.L. 1925, chaps. 89 and 90, did not delegate any legislative powers to, or confer any judicial powers upon, the board. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

Purpose of Statute.

The purpose of suspension and disbarment proceedings is not to punish, but to protect the public from those who are found unfit to perform the duties of an attorney at law. In re Carter, 59 Idaho 547, 86 P.2d 162 (1938).

State Bar.

This section relegates sanctions for an alleged Idaho R. Prof. Conduct 4.2 violation to the Idaho State Bar. Kosmann v. Dinius, — Idaho —, 446 P.3d 433 (2019).

Amendments.

The 2010 amendment, by ch. 40, added the subsection and paragraph designations, subdivided present subsection (2), increasing the fees therein, and added present subsection (3).

The 2012 amendment, by ch. 81, in subsection (3), substituted “inactive” for “affiliate” in the introductory paragraph in paragraph (b) and added paragraph (c).

Effective Dates.

Section 2 of S.L. 1955, ch. 48 declared an emergency. Approved February 19, 1955.

Section 2 of S.L. 1963, ch. 47 declared an emergency. Approved March 1, 1963.

Section 2 of S.L. 1981, ch. 232 provided that the act should take effect on and after January 1, 1982.

Section 2 of S.L. 2010, ch. 40 provided that the act should take effect on and after November 1, 2010.

Compiler’s Notes.

The term “this act”, in the last sentence, refers to S.L. 1951, ch. 59, which is codified as§§ 3-409 and 3-411.

The bracketed insertion in the last paragraph was added by the compiler to conform to the statutory citation style.

Effective Dates.

Section 3 of S.L. 1951, ch. 59 declared an emergency. Approved February 24, 1951.

Cross References.

Disbarment,§ 3-301 et seq.

Constitutionality.

This section, as enacted in 1923, held valid only in so far as it authorized the board to appoint committees to investigate charges and report their findings. In re Edwards, 45 Idaho 676, 266 P. 665 (1928) (but see 1929 amendment).

Powers of Committee.

A committee appointed for the purpose of investigating complaints and charges would clearly be without power to administer discipline, including suspension and disbarment, such power being judicial and not administrative. In re Edwards, 45 Idaho 676, 266 P. 665 (1928) (but see 1929 amendment).

Am. Jur. 2d.

C.J.S.

Cross References.

Contempt proceedings,§ 7-601 et seq.

Subpoenas, Idaho R. Civ. P. 45.

Compiler’s Notes.

The bracketed insertion, at the end of the second sentence, was added by the compiler to conform to the statutory citation style.

Trial Based on Charges.

Trial of an attorney in disbarment proceedings can be had only on charges contained in the information or rule. In re Edwards, 45 Idaho 676, 266 P. 665 (1928).

ALR.

§ 3-416. Record of proceedings.

A complete record of the proceedings and evidence taken by the board, committee or commissioner shall be made and preserved by the board.

History.

1923, ch. 211, § 15, p. 343; I.C.A.,§ 3-416.

Record of Suspension Proceeding.

Member of bar suspended for one year was not entitled to have the record supplied with a copy of testimony taken by special investigating committee, where it is not shown that the trial committee considered such testimony. In re Edwards, 44 Idaho 163, 255 P. 906 (1927).

Cross References.

Practicing without license a contempt,§ 3-104.

Compiler’s Notes.

The words “this act” refer to S.L. 1923, ch. 211, as amended by S.L. 1925, chs. 89 and 90, which is compiled as§§ 3-401 to 3-420.

Attorney from Another State.

An attorney from another state was entitled to recover for service rendered in a probate court of Idaho, although he had not been admitted to practice in Idaho. Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930).

Constitutionality.

This section, proscribing the unauthorized practice of law, did not suffer constitutional infirmity due to either overbreadth or vagueness, because its ban plainly encompassed a wide range of constitutionally proscribed conduct and the alleged behavior for which defendant was being prosecuted clearly fell within the core of conduct that was prohibited by the statute. State v. Wees, 138 Idaho 119, 58 P.3d 103 (Ct. App. 2002). «Title 3»«Ch. 4•«§ 3-420•

Cross References.

Practicing without license a contempt,§ 3-104.

Compiler’s Notes.

The words “this act” refer to S.L. 1923, ch. 211, as amended by S.L. 1925, chs. 89 and 90, which is compiled as§§ 3-401 to 3-420.

Attorney from Another State.

An attorney from another state was entitled to recover for service rendered in a probate court of Idaho, although he had not been admitted to practice in Idaho. Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930).

Constitutionality.

Filing of Papers by Suspended Attorney.

This section, proscribing the unauthorized practice of law, did not suffer constitutional infirmity due to either overbreadth or vagueness, because its ban plainly encompassed a wide range of constitutionally proscribed conduct and the alleged behavior for which defendant was being prosecuted clearly fell within the core of conduct that was prohibited by the statute. State v. Wees, 138 Idaho 119, 58 P.3d 103 (Ct. App. 2002). Filing of Papers by Suspended Attorney.

Where an attorney, who had been suspended from the practice of law, filed complaints and other papers which gave the false impression that he was a practicing attorney, his actions constituted unlawful practice of the law. In re Depew, 98 Idaho 215, 560 P.2d 886 (1977).

Illegal Practice of Law.

Where a trust company holds itself out as qualified to draft wills and trust declarations, it is guilty of illegally holding itself out as qualified to practice law. In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157 (1930).

The practice of law as generally understood is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity with the adopted rules of procedure; but in a larger sense, it includes legal advice and counsel, and the preparation of instruments and contracts by which legal rights are secured, although such matter may or may not be pending in a court. In re Matthews, 58 Idaho 772, 79 P.2d 535 (1938).

Notary public who advertises to draw correct legal conveyances in connection with his abstract business and who in doing so merely fills blank spaces in legal forms does not hold himself out as qualified to practice in violation of this section. In re Matthews, 58 Idaho 772, 79 P.2d 535 (1938).

When a credit cardholder’s husband, who was not a licensed attorney, represented the cardholder in a dispute with a bank, the husband engaged in the unauthorized practice of law. Citibank (South Dakota), N.A. v. Carroll, 148 Idaho 254, 220 P.3d 1073 (2009).

Individual who knowingly and willfully violated orders prohibiting her from filing bankruptcy cases for her corporate entities for one year without first obtaining court permission, and without filing complete schedules with the petitions, was enjoined from signing or otherwise causing the filing of any bankruptcy petition in any bankruptcy court on behalf of any person or entity other than herself. Accordingly, she violated this section when she filed three more cases on behalf of her entities contrary to those orders, and personally signed petitions in two of those cases despite the fact that she was not an attorney. In re Rencher/Arcadia Apts., LLC, 2013 Bankr. LEXIS 1065 (Bankr. D. Idaho Feb. 27, 2013).

Software Program.

Advising a debtor filing for bankruptcy of available exemptions from which to choose, or actually choosing an exemption for the debtor with no explanation, requires the exercise of legal judgment beyond the capacity and knowledge of lay persons, and plugging in solicited information from questionnaires and personal interviews to a pre-packaged bankruptcy software program constitutes the unauthorized practice of law. In re Farness, 244 B.R. 464 (Bankr. D. Idaho 1999).

Sufficiency of Charge.

Cited

Allegation that accused had illegally practiced law is insufficient if made on information and belief. In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157 (1930). Cited In re Edwards, 45 Idaho 676, 266 P. 665 (1928); Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930); Idaho State Bar Ass’n v. Idaho Pub. Utils. Comm’n, 102 Idaho 672, 637 P.2d 1168 (1981).

Am. Jur. 2d.

C.J.S.

ALR.

Maintenance of lawyer reference system by organization having no legal interest in proceedings. 11 A.L.R.3d 1206.

Representation of another before state public utilities service commission as involving practice of law. 13 A.L.R.3d 812.

Activities of law clerks as illegal practice of law. 13 A.L.R.3d 1137.

Drafting of will or other estate-planning activities as illegal practice of law. 22 A.L.R.3d 1112.

Operations of collection agency as unauthorized practice of law. 27 A.L.R.3d 1152.

What activities of stock or security broker constitute unauthorized practice of law. 34 A.L.R.3d 1305.

Sale of books or forms designed to enable layman to achieve legal results without assistance of attorney as unauthorized practice of law. 71 A.L.R.3d 1000.

Liability of professional corporation of lawyers, or individual members thereof, for malpractice or other tort of another member. 39 A.L.R.4th 556.

What constitutes “unauthorized practice of law” by out-of-state counsel? 83 A.L.R.5th 497.

Unauthorized practice of law — Real estate closings. 119 A.L.R.5th 191.

Drafting of will or other estate-planning activities as illegal or unauthorized practice of law. 25 A.L.R.6th 323.

Matters constituting unauthorized practice of law in bankruptcy proceedings. 32 A.L.R.6th 531.