What are a lawyer's duties when a non-lawyer takes a case in the lawyer's absence and signs the lawyer's name to court papers?

Plain-English summary

The Board was asked about a banker, "B," who was not a member of the bar. While the lawyer "A" was out of state for several weeks, B took a probate case for A, prepared a petition, signed A's name to it, and caused notice to be given to creditors. When A returned he proceeded with the case. The question was whether this was proper.

The Board answered that B's conduct constituted the unlawful practice of law, punishable as contempt of court and as a misdemeanor under Sections 46 and 48 of the State Bar Act. As to A, the opinion split on whether A had authorized B's acts. If A authorized them, A was guilty of (a) aiding and assisting B in the unlawful practice of law and (b) an infraction of Rule 29, which makes it unprofessional to secure business by indirection through touters of any kind. If A did not authorize B's acts, the Board concluded that, in justice to the innocent client, A should proceed with the case but should advise B to cease and desist from similar conduct in the future. The Board cross-referenced Advisory Opinion No. 2.

Currency note

This opinion was issued in 1936, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The prohibitions on assisting the unauthorized practice of law and on securing business through lay intermediaries survive in modern form, but the rule text and the statutory framework have changed. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is it unlawful practice for a non-lawyer to prepare and file a probate petition for someone else?

A: Yes. The opinion held that the banker's conduct in preparing the petition, signing the lawyer's name, and giving creditor notice was the unlawful practice of law, punishable as contempt and as a misdemeanor under Sections 46 and 48 of the State Bar Act.

Q: Is the absent lawyer in trouble if a layman did this without his knowledge?

A: The opinion turned on authorization. If the lawyer did not authorize the acts, the Board did not find him at fault and said he should proceed with the case for the innocent client, while telling the layman to stop.

Q: What if the lawyer had told the layman to handle it?

A: Then the lawyer would be guilty of aiding the unlawful practice of law and of violating Rule 29's ban on securing business through touters.

Background and rules framework

The opinion applied Rule 29 of the canon-era Oklahoma Rules of Professional Conduct, which makes it unprofessional to secure business by indirection through touters of any kind, together with the unlawful-practice provisions of Sections 46 and 48 of the State Bar Act. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 29 (1929 Oklahoma Rules of Professional Conduct): it is unprofessional to secure business by indirection through touters of any kind.

Statutes:

• State Bar Act, Sections 46 and 48: the unlawful practice of law is punishable as contempt of court and as a misdemeanor.

Other opinions cited:

• Oklahoma Advisory Opinion No. 2.

See also

• Okla. Bar Ethics Op. 11: What constitutes the practice of law
• Okla. Bar Ethics Op. 16: Corporation appearing in justice court through an employee
• Okla. Bar Ethics Op. 5: Runners, touters, and association with a loan shark

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-117/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted September 25, 1936

The Board is in receipt of the following inquiry:

"'A' is a lawyer. 'B' is a banker. 'A' leaves the state and is gone several weeks. While 'A' is away 'B', who is not a member of the bar, takes a probate case for 'A', prepares a petition, to which he signs 'A's' name, and causes notice to be given to creditors. When 'A' returns he proceeds with the case. Is this proper?"

In response:

The conduct of 'B' constitutes the unlawful practice of law and may be punishable as a contempt of court, and as a misdemeanor under the provisions of Sections 46 and 48 of the State Bar Act.

So far as 'A' is concerned, it does not appear that the acts of 'B' were authorized by him. If they were, 'A' would be guilty of (a) aiding and assisting 'B' in the unlawful practice of the law and (b), of an infraction of Rule 29 of the Rules of Professional Conduct which provides:

"It is equally unprofessional to secure business by indirections through touters of any kind …"

See Advisory Opinion No. 2.

If 'A' did not authorize the acts of 'B' it would seem, in justice to the innocent client, that 'A' should proceed with the case, but 'A' should advise 'B' to cease and desist from similar conduct in the future.