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State v. Bander

Decided: June 17, 1969.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
IRVING L. BANDER, DEFENDANT-APPELLANT



McGowan, J.c.c.

Mcgowan

Defendant was convicted in the Municipal Court of the City of Asbury Park of violating N.J.S. 2 A:170-78; particularly, he was convicted of practicing law without having a license to do so while engaged as a real estate agent or broker.

The complaint charges defendant with engaging in the practice of law by drafting and preparing a contract for the sale of real property and advising the prospective purchaser under said contract as to the terms and details of the contract and procuring the execution of it.

The matter is before this court on an appeal from such conviction and has been heard de novo in this court on the record, there having been a transcript of the proceedings below. See R.R. 3:10-10(a.).

A reading of the transcript of the proceedings below indicates that the facts are for all practical purposes undisputed and uncontested. I find the facts to be that at the time

of the alleged offense, defendant was a licensed real estate broker with his office in Asbury Park, New Jersey, and acting in such capacity prepared a contract of sale for certain real estate therein described and which contract has been marked in evidence. Thereafter, he forwarded it to the sellers, who were actually his principals and resided in Michigan. Subsequently, the contract was executed by the sellers and forwarded to their New Jersey attorney for review. At the suggestion of this attorney the contract was amended in certain particulars and returned to defendant's office where it was executed by the buyers. There is some question as to whether or not defendant himself was actually present at the time of the execution. Ruth Lane, an employee, testified that defendant was not present and that she supervised the execution of the contract. She also confirms that the contract was originally dictated to her by defendant and that she had typed it previously. In any event, it is clear, and I so determine and find, that the buyers did not have the advice of a lawyer with respect to the contract up to and including the execution of the contract.

The acting magistrate, after hearing the evidence, in a written opinion found and determined that the preparation of the contract for the sale of land constituted the practice of law. He further found and determined that defendant was guilty of violating N.J.S. 2 A:170-78, which prohibits any one from practicing law who is not licensed to do so. This was done notwithstanding the language of subparagraph (d) of N.J.S. 2 A:170-81, which allegedly protects and authorizes a licensed real estate broker to draw deeds, bonds, mortgages, leases or releases, agreements or assignments, by way of exception to the general prohibition in the N.J.S. 2 A:170-78, on the ground that subparagraph (d) of N.J.S. 2 A:170-81 is unconstitutional.

At the hearing on the appeal before this court, it was stipulated that the preparation of a contract of sale constitutes the practice of law, and indeed this would seem to be supported by the holdings in N.J. State Bar Ass'n v. Northern

N.J. Mortgage Associates, 22 N.J. 184, 196 (1956); Jeffcott v. Erles, 84 N.J. Super. 70, 74 (Cty. D. Ct. 1964); State ex rel. Reynolds v. Dinger, 14 Wis. 2 d 193, 109 N.W. 2 d 685 (Sup. Ct. 1961).

Therefore, the sole question before this court at this time is whether the preparation of the contract by a licensed real estate broker is authorized by subparagraph (d) of N.J.S. 2 A:170-81. This statute enumerates certain exceptions to N.J.S. 2 A:170-78 which makes it a disorderly persons offense for any person not licensed as an attorney at law to engage in the practice of law in this State. Defendant's contention is that he comes within the exception contained in subparagraph (d) of N.J.S. 2 A:170-81 which reads that the provisions of this article shall not apply to:

"d. The drawing of deeds, bonds, mortgages, leases, releases, agreements or assignments by a licensed real estate ...


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