For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
This matter involves the conviction of defendant Irving L. Bander for engaging in the unauthorized practice of law in violation of N.J.S. 2A:170-78.
Defendant, a licensed real estate broker in the State of New Jersey, prepared a contract of sale for certain property located in Bradley Beach, N.J., by making insertions in a Julius Blumberg law blank described as "Agreement for the Sale of Real Property, Short Form -- New Jersey" and by adding a paragraph providing that the seller pay a mortgage placement fee and $300 toward closing costs. The defendant also drafted a mortgage contingency clause and a clause giving purchasers the option to waive rights granted by the mortgage contingency clause. A later clause drafted by defendant dealt with personal property to be included in the sale.
Defendant sent this instrument to the sellers at their home in Michigan. The sellers returned the signed document to their attorney in New Jersey, a member of the Bar of this State. He added two clauses dealing with the adjustment of
rents, insurance premiums, taxes, zoning ordinances, etc. The said attorney then returned the contract to defendant. Some days later purchasers signed the contract in defendant's office. They were not then represented by nor had they consulted an attorney.
This action was instituted on May 8, 1968, when one of the purchasers filed a complaint in the Municipal Court for the City of Asbury Park charging defendant with practicing law in violation of N.J.S. 2A:170-78 which reads in pertinent part:
Any person not licensed as an attorney or counselor at law, and any corporation that:
a. Engages in this state in the practice of law; * * * Is a disorderly person.
N.J.S. 2A:170-81 provides:
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 broker or any one employed by him; * * *.
After a full trial on the merits, the Municipal Court Magistrate concluded that the defendant had engaged in the unlawful practice of law "in selecting a legal form as appropriate for use in the sale of real property, completing the form by inserting information, and causing the form to be signed by the buyers." The court further held that the provision in N.J.S. 2A:170-81(d), ostensibly exempting defendant's acts, was ...