R. J. Edwards, Inc. v. Hert
Citation | 504 P.2d 407 |
Decision Date | 28 November 1972 |
Docket Number | Nos. 40338,42166 and 43254,s. 40338 |
Parties | R. J. EDWARDS, INC., et al., Petitioners, v. R. L. HERT, District Judge, et al., Respondents. MILBURN, COCHRAN & COMPANY, INC., et al., Petitioners, v. F. B. H. SPELLMAN, District Judge, et al., Respondents. STIFEL, NICOLAUS & COMPANY, INC., et al., Petitioners, v. Jack R. PARR, District Judge, et al., Respondents. |
Court | Supreme Court of Oklahoma |
Syllabus by the Court
Under the Oklahoma Constitution, the Judicial Department was vested with full and complete authority, independent of the power of the Legislative Department, to control and regulate the practice of law in all its forms and to prevent the intrusion of unlicensed persons into the practice, without regard to whether their acts are 'forensic' or 'non-forensic'.
Original proceedings for writs of prohibition.
Actions for injunctions were separately filed in the District Courts of Payne, Major and Canadian Counties by the respective County Bar Associations and the Oklahoma Bar Association. Thereafter, petitions for writs of prohibition were filed in this Court to prohibit the judges of the respective District Courts from proceeding further. This Court then ordered the cases transferred to this Court for final disposition. Injunctive relief denied; prohibition granted.
Leon S. Hirsh, Paul Johanning, David Hudson, Hirsh, Johanning & Hudson, Oklahoma City, for petitioners, R. J. Edwards, Inc., and others.
George J. Fagin, Oklahoma City, for petitioners, Milburn, Cochran & Co., Inc., and others.
Fenton R. Ramey, Yukon, for petitioners, Stifel, Nicolaus & Co., Inc., and others.
Paul M. Vassar, Gen. Counsel, Oklahoma Bar Association, Oklahoma City, James M. Springer, Jr., Stillwater, for respondents.
We shall refer to the parties by the characters in which they appeared in the courts of first instance, namely, as plaintiffs and as defendants.
These cases originated in the district courts of Payne, Major and Canadian Counties. Each was initiated by a petition against the respective defendants, municipal bond marketers and their agents, filed by the individual county bar associations, together with the Oklahoma Bar Association, to enjoin certain practices of the defendants, alleged to constitute the unlawful practice of law, by these defendants who were not members of the bar. The charges, in brief, were that the defendant corporations, who are engaged in negotiating for marketing, and also, themselves, in selling municipal bond issues and other types of securities, undertake, in that connection, to give legal advice to municipal authorities, to school boards, and to other representatives of entities who may be contemplating borrowing money through the issuance of bonds. It also is alleged that the corporate defendants, acting through their agents, the individual defendants, or through others, prepare resolutions, election proclamations, contracts, transcripts of bond proceedings and negotiable coupon bonds, all of which acts also are asserted to constitute the illegal practice of law by the defendants.
The defendants took the position that their acts did not amount to the practice of law in that they were merely assisting in filling out forms prescribed by the Attorney General according to his directions, and that, if this could be considered law practice it was of the non-forensic variety, over which (it was asserted) the judicial branch of the government has no jurisdiction, on the theory that the Legislature alone may wield the police power in that regard. Subsidiarily, the defendants also raised the proposition that, in any event, the respective bar associations were without standing to maintain the actions, asserting that this Court has retained for itself exclusive jurisdiction in that regard.
Before these matters proceeded to hearing on the merits upon the issues raised in the district courts, the defendants filed with us applications for writs of prohibition to the respective district judges before whom the matters were pending, by which route defendants sought to achieve a prompt resolution, in their favor, of the contentions which they had urged in the district courts. We ordered the cases to be transferred here for hearing and determination. We shall resolve the several issues in accordance with the applicable legal principles.
Because of the importance of the issues raised to the due administration of justice and to the protection of the public welfare, we find it necessary to discuss at some length the principles that govern the relation of the legislative and the judicial departments of the government under the Constitution of this State.
Our Constitution provides:
'The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.' Art. V, § 36 (1907).
As to the Judicial Department and its particular functions, the Constitution, Article VII, as adopted in 1907, read:
§ 10. (Emphasis supplied)
The new Article VII, adopted in 1967, in its corresponding parts, reads as follows:
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...by the Supreme Court of Oklahoma, 'without regard to whether the acts involved were 'forensic' or 'nonforensic." R. J. Edwards, Inc. v. Hert, 504 P.2d 407, 415 (Okl.1972). People v. Goodman, 366 Ill. 346, 8 N.E.2d 941, 111 A.L.R. 1, Cert. den. 302 U.S. 728, 58 S.Ct. 49, 82 L.Ed. 562, Reh. d......
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...as to neither permit nor require definition. McMillen v. McCahan, 83 Abs. 1, 14 Ohio Op.2d 221, 167 N.E.2d 541 (1960); R. J. Edwards Inc. v. Hert, 504 P.2d 407 (Okl.1972). The suggestion from these decisions is that the meaning of the practice of law is so self-evident as to defy definition......
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