                                    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



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