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OBA Ethics Counsel

Ethics Opinion No. 63

Adopted November 24, 1933

The Board is in receipt of a request for an opinion as to whether or not, subsequent to the first meeting of the State Bar, a person not admitted to the practice of law may practice in the courts of Justices of the Peace; a subsidiary question being whether or not a corporation may be represented in a court of a Justice of the Peace by an agent--that is, by a person not admitted to the practice of law.

The inquirer is referred to Advisory Opinion No. 2 (page 167, Report of the State Bar, 1931) wherein it was stated:

"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 courts is guilty of a misdemeanor."

The inquirer is also referred to Advisory Opinion No. 16 (page 177, Report of Annual Proceedings of State Bar, 1932) in which it was said:

"It is the opinion of the Board of Governors that a plaintiff or 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 by an attorney duly licensed to practice law."

The Board would not have deemed it advisable to render a further advisory opinion upon this matter but for the fact that an argument contrary to its previous conclusion has been predicated upon the provisions of a section of the statutes which came into force upon the advent of statehood, now appearing as Section 876, Oklahoma Statutes 1931, 39 Okl. St. Ann. § 131. This Section provides:

"In all cases before a justice, the plaintiff, his agent or attorney, shall file with such justice a bill of particulars of his demand, and the defendant, if required by the plaintiff, his agent or attorney shall file a like bill of particulars if he claim a set-off; and the evidence on the trial shall be confined to the items set forth in said bill."

On June 22, 1929, the State Bar Act became effective. This Act is a comprehensive codifying act upon the subject of the practice of law.

It is a rule of statutory construction generally recognized that, if a new act is intended as a revision and substitution for former acts upon the same subject, parts or provisions of former acts in conflict with the new act are repealed although there is no repealing clause in the new act as to those provisions.

In re Estate of Pigeon, 81 Okl. 180, 198 P. 309; Smock v. Farmers', etc., 22 Okl. 825, 98 P. 945.

Sections 46 and 48 of the State Bar Act are as follows:

"Section 46. Only Active Members May Practice Law. No person shall practice law in the State subsequent to the first meetings 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."

The practice of law, within the meaning of the foregoing sections, has been defined by the Board to be "any service involving legal knowledge whether of representation, counsel or advocacy, in and out of court rendered in respect of the rights, duties, obligations, liabilities or business relations of the one requesting, or to whom the service is rendered." (See Advisory Opinion No. 11, page 175, Report of State Bar, 1931.) This embraces the preparation of pleadings and other papers incident to an action in a court.

It is the opinion of the Board of Governors that one not a member of the State Bar may not lawfully represent either an individual or a corporation, as agent or otherwise, in a court of a Justice of the Peace, and that such a person who does so is guilty of a misdemeanor.

Nothing in this advisory opinion should be construed to be the expression of an opinion that an individual who is a party to an action in any court in this state may not appear in propria personae and assert or defend his rights.

The statement made arguendo that to permit an individual litigant personally to appear in a court of a Justice of the Peace to assert or defend his rights when a corporation in the nature of things cannot do so--it being able to appear only by agent--would result in an unlawful discrimination against the corporation, is not true.

The inherent rights of a corporation are by no means the same as those of an individual. In many cases, the distinction between corporations and individuals is a valid basis of classification. The distinction here made is necessarily caused by the inherent nature of the distinction between an individual and a corporation.