General Counsel on

Unauthorized Practice of Law

By Gina Hendryx, General Counsel

Every jurisdiction prohibits the unauthorized practice of law (UPL). In Oklahoma, the Supreme Court has original and exclusive jurisdiction over all matters involving admission to practice law in this state and to discipline for cause any other “persons, corporations, partnerships or other entities engaged in the unauthorized practice of law.” Rule 1.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch.1, App. 1-A. The General Counsel of the Oklahoma Bar Association is charged with the responsibility of investigating and prosecuting allegations of UPL.

An investigation involving an allegation of UPL may be instigated by grievance, request or by the Professional Responsibility Commission (PRC) or General Counsel’s own initiative. Rule 5.1, Rules Governing Disciplinary Proceedings. The General Counsel may request a nonlawyer to respond to the allegations of UPL. Upon completion of the investigation, the General Counsel reports its findings and recommendations to the PRC. The PRC may either dismiss the matter or direct the General Counsel to initiate any action permitted by law through the appropriate court, including maintaining a suit for injunctive relief. Rules 5.1 and 5.3, Rules Governing Disciplinary Proceedings and R.J. Edwards Inc. v. Hert, 1972 OK 151, 504 P.2d 407. Recently, the PRC has authorized the issuance of cease and desist letters and the filing for injunctive relief against nonlawyers believed to be engaging in UPL.

The OBA’s Office of the General Counsel recently obtained injunctive relief against a nonlawyer in Tulsa County District Court after asserting that the individual was engaged in the unauthorized practice of law. This marks the first time in over two decades that this office has sought and obtained such relief against a nonlawyer.

In Oklahoma, the practice of law is defined as “the rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent.” Hert at ¶ 20. Oklahoma’s definition is very similar to other jurisdictions in that it requires a case-by-  case determination as to whether the acts complained of rise to the level of the practice of law. Some activities clearly fall within the definition such as rep-resenting others in court matters, preparing legal pleadings and advising others on legal matters.

In the Tulsa County case, the OBA presented evidence at the temporary injunction hearing that the nonlawyer had appeared in a representative capacity in court on behalf of another and had given legal advice on foreclosure matters.  Based upon this testimony and other evidence, the court granted the temporary injunction and enjoined the nonlawyer from performing such acts in the future.

This office will continue to investigate and, when necessary, prosecute the practice of law by nonlawyers. Protection of the public from persons who have not obtained the skill and training necessary to provide professional legal judgment is the primary reason for the prosecution of UPL. Protection of the public interest requires that legal advice and services be rendered by qualified persons admitted to the practice under the laws of the state of Oklahoma, and who are at all times subject to the discipline and control of the courts.

Members of the bar have an ethical duty to report instances of UPL and may be subject to discipline if he or she assists a nonlawyer in engaging in UPL. If you have reason to believe that a nonlawyer is practicing law, you should report same to the OBA. If you have questions whether your acts are assisting a nonlawyer, you should contact the Ethics Counsel at the OBA to confidentially review same.

Originally published in the Oklahoma Bar Journal -- May, 15, 2010 -- Vol 81., No. 14