R. J. Edwards, Inc. v. Hert

Citation504 P.2d 407
Decision Date28 November 1972
Docket NumberNos. 40338,42166 and 43254,s. 40338
PartiesR. 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.
CourtSupreme 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.

BARNES, Justice:

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 powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. Art. IV, § 1 (1907).

'The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; (reservation of initiative and referendum). Art. V, § 1 (1907).

'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:

'The judicial power of this State shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, District Courts, County Courts, Courts of Justices of the Peace, Municipal Courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law. § 1.

'The appellate jurisdiction of the Supreme Court shall be co-extensive with the State, and shall extend to all civil cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law. The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs, as may be provided by law, and to hear and determine the same; and the Supreme Court may exercise such other and further jurisdiction as may be conferred upon it by law. Each of the Justices shall have power to issue writs of habeas corpus to any part of the State upon petition by or on behalf of any person held in actual custody, and make such writs returnable before himself, or before the Supreme Court, or before any District Court, or Judge thereof, in the State. § 2. (Emphasis supplied)

'The District Courts shall have original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is by this Constitution, or by law, conferred on some other court, and such appellate jurisdiction as may be provided in this Constitution, or by law. The District Courts, or any judge thereof, shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, prohibition, and other writs, remedial or otherwise, necessary or proper to carry into effect their orders, judgments, or decrees. The District Courts shall also have the power of naturalization in accordance with the laws of the United States.' § 10. (Emphasis supplied)

The new Article VII, adopted in 1967, in its corresponding parts, reads as follows:

'The judicial power of this State shall be vested in the Senate, sitting as a Court of Impeachment, a Supreme Court, the Court of Criminal Appeals, the Court on the Judiciary, the State Industrial Court, the Court of Bank Review, the Court of Tax Review, and such intermediate appellate courts as may be provided by statute, District Courts, and such Boards, Agencies and Commissions created by the Constitution or established by statute as exercise adjudicative authority or render decisions in individual proceedings. Provided that the Court of Criminal Appeals, the State Industrial Court, the Court of Bank Review and the Court of Tax Review and such Boards, Agencies and Commissions as have been established by statute shall continue in effect, subject to the power of the Legislature to change or abolish said Courts, Boards, Agencies, or Commissions. Municipal Courts in cities or incorporated towns shall continue in effect and shall be subject to creation, abolition or alteration by the Legislature by general laws, but shall be limited in jurisdiction to criminal and traffic proceedings arising out of infractions of the provisions of ordinances of cities and towns or of duly adopted regulations authorized by such ordinances. § 1.

'The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all cases at law and in equity; except that the Court of Criminal Appeals shall have exclusive appellate jurisdiction in criminal cases until otherwise provided by statute and in the event there is any conflict as to jurisdiction, the Supreme Court shall determine which court has jurisdiction and such determination shall be final. The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law. The Supreme Court, Court of Criminal Appeals, in criminal matters and all other appellate courts shall have power to issue, hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and such other remedial writs as...

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25 cases
  • State Bar v. Cramer
    • United States
    • Michigan Supreme Court
    • 1 Noviembre 1975
    ...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......
  • State ex rel. Frieson v. Isner
    • United States
    • West Virginia Supreme Court
    • 18 Diciembre 1981
    ...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......
  • First Escrow, Inc., In re
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    • Missouri Supreme Court
    • 27 Octubre 1992
    ...717 (1955); Pulse v. North Am. Land Title Co., 218 Mont. 275, 707 P.2d 1105, 1109 (1985); Cain, 268 N.W. at 723; R.J. Edwards, Inc., v. Hert, 504 P.2d 407, 417 (Okla.1972); Childs v. Smeltzer, 315 Pa. 9, 171 A. 883, 885-6 (1934); Union Planters Title, 326 S.W.2d at 781; Commonwealth v. Jone......
  • State ex rel. Oklahoma Bar Ass'n v. Smolen
    • United States
    • Oklahoma Supreme Court
    • 14 Julio 1992
    ...v. O'Bryan, 385 P.2d 876, 888 (Okla.1963), cert. denied, 376 U.S. 649, 84 S.Ct. 983, 11 L.Ed.2d 980 (1963). 39 See, R.J. Edwards v. Hert, 504 P.2d 407, 409 (Okla.1972) [Concerning questions relating to the unlicensed practice of law, this Court refered to "the importance of the issues raise......
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1 books & journal articles
  • Chapter 4
    • United States
    • Full Court Press Alternative Dispute Resolution in the Work Place
    • Invalid date
    ...P.2d 943 (N.M. 1978), stating the judiciary is the sole arbiter of what constitutes the practice of law. Oklahoma: R.J. Edwards v. Hert, 504 P.2d 407 (Okla. 1972), stating that the judiciary has the power to control and regulate legal practice.[96] . See Morrison, “Is Divorce Mediation the ......

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