Ethics Counsel on www.OKbar.org

OBA Ethics Counsel

Ethics Opinion No. 16

Adopted January 22, 1932

The Board of Governors is in receipt of the following communication from the attorney of Montgomery Ward and Co.:

"It has been brought to my attention that the requirements for practice in the Justice Courts of Oklahoma are different than those in Missouri. For that reason, I am writing to ask for some information relative to handling matters in the Justice Court by our stores.

Here in Missouri, no formal pleadings are necessary in the Justice Court. The plaintiff or the defendant may either appear in person or by an agent whom he is willing to entrust with setting forth the evidence and it is not required that the party representing another as agent be admitted to the Bar or be a regular practicing attorney.

Of course, the distinction is noted between handling cases as an agent or as an attorney. It is, of course, illegal for anyone to hold himself out as an attorney and to practice in Justice Courts, but it is not a violation to handle as a mere agent.

Now the question comes up as to whether or not our stores in Oklahoma have the right to delegate to some employee the duty of filing complaints in Justice Courts on our own cases either suit on an account of replevin or garnishment proceedings or whether it is necessary that we have a licensed attorney to do this. I fully realize that under your regulations, no one can appear in the Justice Courts for others either as an agent or attorney, unless a properly admitted member of the Bar.

As I understand your law and practice, either plaintiff or defendant may handle his own case as an individual, but I am wondering whether or not a regular employee on our regular payroll can handle these matters in the Justice Court for the company. Will you kindly advise on that point?"

The inquiry is in the main answered by Opinion No. 2 of the Board of Governors appearing in the August, 1931, Oklahoma State Bar Journal. The inquiry there was:

"Under the law and rules of our present State Bar governing lawyers and the practice of law, is a person not a member of the Bar, permitted to practice before a Justice of the Peace?"

The answer was:

"In answer to the above inquiry, attention is called to Sections 46 and 48 of The State Bar Act which are as follows:

Section 46. Only active members may practice law. No person shall practice law in the State subsequent to the first meeting of The State Bar unless he shall be an active member thereof as hereinbefore defined.

Section 48. Unlawful Practice a Misdemeanor. Any person other than a non- resident attorney, who, not being an active member of The State Bar or who after he has been disbarred or while suspended from membership in The State Bar, as by this Act provided, shall practice law, shall be guilty of a misdemeanor.

It is the opinion of the Board of Governors that one who is not a member of The State Bar of Oklahoma may not lawfully practice law in a court of a justice of the peace, and that such a person who does practice before such a court is guilty of a misdemeanor."

It is the opinion of the Board of Governors that a plaintiff or a defendant may appear in person before a Justice of the Peace and prosecute or defend his case as he may in a court of record, but such plaintiff or defendant, being either a person or a corporation, cannot appear by another in a court of the Justice of the Peace, other than an attorney duly licensed to practice law.