May a real estate broker represent a lawyer-seller of real property in processing a subdivision application before a planning board? This opinion concludes that such an appearance involves the practice of law and constitutes improper conduct by both broker and lawyer which requires forfeiture of the fruits of the representation.
Yates, by written agreement, sold a parcel of real estate to Slimm. The agreement required the seller to obtain subdivision approval. Yates, an attorney who does not practice law, employed his broker, Craft, to obtain the required approval from a planning board. The broker appeared before the board for that purpose on several occasions. Yates, whose presence was requested by the board, made no appearances. Eventually, after board members voiced opposition to the proposed subdivision and before any decision was made, Craft withdrew the application. Yates, defending Slimm's action for specific performance of the agreement of sale, argues that Craft's failure to obtain subdivision approval makes the agreement unenforceable.
This court, in a bench opinion responding to a motion for summary judgment, held that Yates breached his sales agreement. He failed to make reasonable efforts to obtain subdivision approval because: (1) he failed to appear before the planning board himself despite the board's request; (2) the subdivision application was withdrawn before a final decision could be made by the planning board; and (3) any approval that might have been obtained would be unenforceable because he permitted a non-lawyer to process the subdivision application, thus participating in the unlawful practice of law. Yates was ordered to renew his application to the planning board. The
specific performance issue was reserved. This opinion sets forth the basis for the unauthorized practice holding.
A. The Practice of Law Defined.
Except as provided below, no person shall practice law in this State unless that person is an attorney holding a plenary license to practice in this State. . . .
The exceptions in the rule do not apply here.
N.J.S.A. 2A:170-78 provides:
Any person not licensed as an attorney or counselor at law . . . that:
a. Engages in this state in the practice of law; or
b. Holds himself . . . out . . . by or through any other person, whether such other person is so licensed or not, as engaging in or entitled to engage in the practice of law, or as rendering legal service or advice, or as furnishing attorneys ...