Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
August 16, 1983
MATTOX
xney General
eme Court Bulldmg
Honorable Henry Wade opinion No. JM. 62
Box 12546 Criminal District Attorney
an. TX. 78711- 2546 Dallas County Government Center Re: Unauthorized practice of
475.2501 Dallas, Texas 75202 law in connec’tion with bail
I 9101874.1367
bond forfeiture proceedings
copier :5121475~0266
Dear Mr. Wade:
’ Main St.. suite 1400
as. TX. ‘75201.4709 You ask whether bail bondsmen are engaging in the unauthorized
742.8944
practice of law in the following three fact situations:
: Alberta Ave.. SUlW 160 1. A lay person other than the proprietor of a
aso. TX. 799052793 sole proprietbrship bonding company Is making
533.3464 court appearances without counsel and is making,
,-
signing, and filing Motions for a New Trial and
3 Da.~ . Ave.. Suite 202
making requests fo; .&tension and remittance.
ISlO”, TX. 77002-6966
‘650-0666 ‘, 2. A lay person ~who Is a partner in a
partnership bonding company is making court
appearances without counsel in bond forfeiture
Broadway. Suite 312
t0ch. TX. 79401.3479
hearings and is making, signing, and filing
~747+,238 Motions for a New Trial and making requests for
extension and remittance.
8 N. Tenth. Suite B
3. The lay proprietor of a sole proprietorship
*h, TX. 76501-1665
y682-4547 bonding company is making court appearances
without counsel under a power of attorney as the
agent of a corporate insurer surety in bond
? MaIn Plaza. Suite 4W forfeiture hearings and such lay person is making
$ Antonio. TX. 762052797
requests for extensions and remittance. The
h-419,
t proprietor must reimburse or must pay any bond
forfeitures on which the corporate surety is
liable. ,
In light of current case law and existing regulatory statutes, we
believe that in each of the above fact situations the lay persons are
engaged in the unauthorized practice of law. While each of the
bondsmen could represent themselves and their own interests before the
court, the nature of their activities as outlined above constitutes
the rendering of legal advice to and the representation of individuals
and entities other than themselves. Specifically, they are violating
p. 268
Honorable Henry Wade - Page 2 (~~-62)
a settled legal principle which requires corporations and partnerships
to be represented by licensed attorneys.
The practice of law is affected with a public interest and the
state has a right and duty to regulate and control its practice so
that the public is properly served and protected. Palmer v.
Unauthorized Practice Committee of the State Bar of Texas, 438 S.W.2d
374, 376 (Tex. Civ. App. - Houston [14th Dist.] 1969. no writ). See
also Turner v. American Bar Association, 407 F. Supp. 451 (N.D. TX
1975). aff’d 542 F.2d 56 (5th Cir. 1976).
Article 430(a) of the Texas Penal Code previously defined in
specific terms the activities constituting the unauthorized practice
of law. This article, however, has been repealed by the Texas
Legislature. Acts 1973, 63rd Leg., ch. 399, I1 at 883. Article
320a-1, V.T.C.S., of the State Ear Act, now controls determinations of
whether or not an activity constitutes the unauthorized practice of
law.
Article 320a-1 establishes the State Bar of Texas as a regulatory
agency of Texas’ state government and has endowed the State Bar with
disciplinary and rulemaking powers governing the practice of law in
Texas. The article states, in pertinent part, the following: -
Sec. 19(a). For purposes of this Act, the
practice of law embraces the preparation of
pleadings and other papers incident to actions of
special proceedings and the management of actions
and proceedings on behalf of clients before judges
in courts as well as services rendered out of
court, including the giving of advice or the
rendering of any service requiring the use of
legal skill or knowledge. . . . This definition
is not exclusive and does not deprive the judicial
branch of the power and authority both under this
Act and the adjudicated cases to determine whether
other services and acts not enumerated in this Act
may constitute the practice of law.
V.T.C.S. art. 320a-1, 019(a). All act.6 which constitute an
“unauthorized practice of law” are not enumerated in the statute.
Apparently the State Bar of Texas and the state’s judicial branch must
apply the statute on a case-by-case basis vith regard to the attendant
circumstances. See Grievance Committee of State Bar of Texas,
Twenty-first Congressional District v. Dean, 190 S.W.2d 126 (Tex. Civ.
APP. - Austin 1945, no writ).
While the State Bar Act requires any individual who wants t?
practice law first to obtain a license, neither the State Bar nor th-
state judiciary has promulgated rules which specifically define those
p. 269
Honorable Henry Wade - Page 3 (JM-62)
acts constituting the practice of law. See Grievance Committee, State
Bar of Texas, Twenty-first CongressfonT District v. Coryell. 190
S.W.2d 130 (Tex. Civ. ADD. - Austin 1945. writ ref'd w.o.m.1: V.T.C.S.
art. 320a-1: Case law:'however. has in- some Dart
. orovided-standards
.
by which legal conduct -may be judged.
A determination of whether or not an individual has engaged in an
unlicensed, unauthorized legal practice can be determined by an
examination of the services rendered and their relationship to the
pqblic interest. See Grievance Committee v. Coryell, supra; Grievance
Committee v. Dean,--. The practice of law includes
the preparation of pleadings and other papers
incident to actions of special proceedings, and
the management of such actions and proceedings on
behalf of clients before judges in courts.
Davies v. Unauthorized Practice Committee of the State Bar of Texas,
431 S.W.2d 590, 593 (Tex. Civ. App. - Tyler 1968, writ ref'd n.r.e.);
V.T.C.S. art. 320a-1, 619a~. The practice of law is not confined to
cases conducted in court; it includes the giving of advice and
rendering of conclusions which require the use of legal skill. Hughes
p. Fort Worth National Bank, 164 S.W.2d 231, 234 (Tex:Civ. App. -
)rt Worth' 1942, writ ref'd). Whether compensation is paid to an
Lndividual performing services is irrelevant. Grievance Committee v.
Coryell, supra, at 130-131. A layman is engaging in the unauthorized
practice of law when that individual. by words or conduct, renders
legal advice or services to others. Quarles v. State Bar of Texas,
316 S.W.2d 797, 802 (Tex. Civ. App. - Houston 1958, no writ), cert.
denied, 368 U.S. 986 (1962).
As previously stated, individuals have the privilege of
representing themselves in legal matters; they are simply not
permitted to appear on behalf of another individual or entity.
Collins v. O'Brien, 208 F.2d 44. 45 (D.C. Cir. 1953). cert. denied,
347 U.S. 944 (1954). Corporations and partnerships, therefore, must
be represented by licensed attorneys. They may not be represented by
officers and/or agents of the partnership or corporation -- regardless
of the individual's relationship to or position 'in the Company -- if
those persons are not licensed attorneys. Globe Leasing, Inc. v.
Engine Supply and Machine Service, 437 S.W.2d 43. 45 (Tex. Civ. App. -
Houston [lst Dist.] 1969, no writ); Flora Construction Company v.
Fireman's Fund Insurance Company, 307 F.2d 413, 414 (10th Cir. 1962).
cert. denied, 373 U.S. 919 (1963).
Turning to the three fact situations outlined in your request, we
believe that in each instance bondsmen are engaging in the
,-authorized practice of law. The first situation shows a lay person
,t only representing the bonding company for which he or she works
*ut also the company's clients' interest. We believe that this action
p. 270
Honorable Henry Wade - Page 4 (JM-62)
violates article 320a-1, V.T.C.S.. and the above referenced standards
established by case law.
In the second situation a lay person is seeking to represent a
partnership. Partnerships must be represented by licensed attorneys.
Globe Leasing, Inc. v. Engine Supply and Machine Services, supra. The
bondsman, therefore, is engaging in an unauthorized practice of law.
The final fact outline shows a lay person representing a
corporation in court and by filing motions on the corporation's
behalf. We believe that these actions constitute an unauthorized
practice of law. Globe Leasing, Inc. v. Engine Supply and Machine
Service. supra. The agreement between the lay person and the client
company which requires the lay person to reimburse the client for bond
forfeitures for which the client is liable is irrelevant to a
determination of whether an unauthorized practice of law has occurred.
* Grievance Committee v. Coryell. supra at 130.
SUMMARY
We believe that the three fact situations
outlined in your letter constitute the ?
unauthorized practice of law because lay persons
render legal advice and represent individuals and
entities other than themselves.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Laura Martin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
Colin Carl
Laura Martin
Jim Moellinger
Nancy Sutton
p. 271