Are attorneys who were licensed by Territorial or Tribal courts before statehood, but never admitted by the Oklahoma Supreme Court, eligible to practice without examination?

Plain-English summary

The Board addressed the status of persons who had been licensed to practice in a court of record of the Territory of Oklahoma, in the United States Courts for the Indian Territory, or in a court of record of any of the Five Civilized Tribes, but who had never been admitted to practice by the Oklahoma Supreme Court.

The Board traced the history. Section 33 of the Schedule to the State Constitution had made such attorneys eligible to practice in state courts without examination, but, as In re Mosher held, that did not preclude the Supreme Court from inquiring into their moral qualifications, and it made them eligible only for admission, because they still had to be admitted by order of the Supreme Court. The Schedule provision was legislative in nature and remained effective until repealed. In 1919 the Legislature enacted Sections 4111 to 4113, making it unlawful for any person not admitted by the Supreme Court to practice; these enactments repealed the Schedule provision and removed the examination exemption.

The Board concluded that, after the 1919 Act and given the State Bar Act (effective June 1929) and the admission rules adopted under it, attorneys licensed by the Territorial or Tribal courts who had never been admitted by the Oklahoma Supreme Court were not entitled to practice when the State Bar Act took effect, could not be members of the State Bar, and were no longer eligible for admission without examination.

Currency note

This opinion was issued in 1932, 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. It construed pre-statehood and early-statehood admission law that is of historical interest only and does not reflect current Oklahoma admission rules. Treat this page as historical context, not current guidance.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: Could a pre-statehood territorial or tribal court license alone qualify a lawyer to practice in Oklahoma?

A: The opinion concluded that after the 1919 legislation, such attorneys who had never been admitted by the Oklahoma Supreme Court were no longer eligible to practice or to be admitted without examination.

Q: Did the State Constitution's Schedule preserve those attorneys' right to practice?

A: The opinion concluded the Schedule provision was legislative in nature, made such attorneys eligible only for admission (still requiring a Supreme Court order), and was repealed by the 1919 Act.

Background and rules framework

The opinion construed Section 33 of the Schedule to the Oklahoma Constitution, the early statutory admission provisions (Sections 4087, 4111 to 4113 of C.O.S. 1921), and the State Bar Act, drawing on In re Mosher, Coyle v. Smith, and Dickerson v. Worten. The subject is bar admission and eligibility, a matter governed today by current Oklahoma admission rules; the opinion predates the Model Rules.

Citations and references

Statutes:

• Section 33 of the Schedule to the Oklahoma Constitution (territorial and tribal attorneys eligible to practice without examination)
• Sections 4087, 4111, 4112, 4113, Compiled Oklahoma Statutes 1921 (admission and unlawful-practice provisions)
• Oklahoma State Bar Act §§ 3, 7, 24, 46

Cases:

• In re Mosher, 24 Okl. 61, 102 P. 705 (1909), Supreme Court may inquire into moral qualifications of territorial-era attorneys
• Coyle v. Smith, 28 Okl. 121, 113 P. 944 (1911), legislative nature of the Schedule provision
• Dickerson v. Worten, 122 Okl. 76, 251 P. 52 (1926), Indian Territory licensee not admitted by the Supreme Court could not practice

See also

• Okla. Bar Ethics Op. 17: Non-Resident Member Status
• Okla. Bar Ethics Op. 11: Defining Practice of Law

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-18/

Original opinion text

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

Adopted February 26, 1932

Inquiries have been received from various persons inquiring as to the status of those persons licensed to practice law in "any Court of record of the Territory of Oklahoma, or in any of the United States Courts for the Indian Territory or any Court of record of any of the Five Civilized Tribes" who have never been admitted to practice by the Supreme Court of the State of Oklahoma.

Section 33 of the Schedule to the State Constitution provides:

"All attorneys-at-law licensed to practice in any court of record of the Territory of Oklahoma or in any of the United States Courts for the Indian Territory, or any court of record of any of the Five Civilized Tribes, shall be eligible to practice in any court of the State without examination."

In re Mosher, 24 Okl. 61, 65, 102 P. 705, 24 L.R.A.,N.S., 530, it was said that this section of the Schedule did not preclude the Supreme Court from inquiring into the moral qualifications of the persons therein referred to. In the opinion this language was used:

"Taking this view of the situation, which in our judgment is the correct one, respondent's right to continue as a licensed attorney came under the jurisdiction of the Supreme Court of this State, by virtue of its power and sole authority, under the new sovereignty, to admit and license attorneys to practice law."

The clear purpose and intent of the language used in this section of the schedule was to make the attorneys referred to eligible to practice in the State courts without taking the examination required by Section 4087 of C.O.S.1921, which was in force in the Territory of Oklahoma, and was extended in force in the State by the provisions of the Schedule. Without this provision of the Schedule, all the above mentioned lawyers would have been required to have taken an examination under Section 4087 before they could have been admitted to the bar of the State of Oklahoma.

Under the plain language of Section 4087, construed in connection with Section 33 of the Schedule to the Constitution, the lawyers above referred to were eligible to admission to practice law in the State without being required to take an examination as provided in Section 4087, but they were only eligible to admission to practice, because Section 4087 expressly provides that no person shall be admitted to practice unless he has been previously admitted by order of the Supreme Court.

The provisions of Section 33 of the Schedule was merely legislative in its nature, that is, it remained effective until repealed by the legislature. Coyle v. Smith, 28 Okl. 121, 113 P. 944.

Thereafter in 1919 the Legislature enacted Sections 4111, 4112, and 4113 of C.O.S.1921, making it unlawful for any person not admitted to practice by the Supreme Court to practice or attempt to practice. By Section 4112 a penalty was fixed for the violation of Section 4111. By Section 4113 the Legislature made the Judge of any court of record guilty of a misdemeanor who knowingly permitted any person to practice in violation of Section 4111, that is, not regularly admitted to practice by the Supreme Court of the State. These enactments operated to repeal the provisions of the Schedule to the Constitution, and thereafter no person could be admitted to practice by the Supreme Court except in the way provided by statute, that is, only by examination, or upon motion. After this Statute was adopted the lawyers above referred to who had not theretofore been admitted and licensed by the Supreme Court of the State who practiced law in the State, were guilty of a violation of Section 4111.

In Dickerson v. Worten, 122 Okl. 76, 251 P. 52, the Supreme Court referring to the provisions of Section 4087 and 4113, held that a lawyer licensed to practice law in the Indian Territory but who had never been licensed and admitted to practice by the Supreme Court of Oklahoma was not entitled to practice law in the State. The opinion in this case was filed in 1926.

The authorities cited fix the status of persons who may have been eligible to admission by the Supreme Court of the State, under the provisions of the Schedule to the Constitution. After the Act of 1919 it was unlawful for any such lawyer to practice in the State Court without being admitted by the Supreme Court of the State and the Act of 1919 operated to take away the exemption from examination contained in the Schedule.

In this state of the law upon the subject, The State Bar Act became effective on June 29th, 1929.

Section 3 of the Act provides that members of The State Bar "shall be all persons now entitled to practice law in this State." Lawyers who had been admitted by the Territorial and Tribal Courts and who were made eligible to admission by the Supreme Court of the State without any examination, by the Schedule, but who had never been admitted by the Supreme Court of the State were not entitled to practice law in the State at the time the State Bar Act was adopted, and, therefore, could not be members of The State Bar.

Section 7 of the Act provides that after organization of The State Bar, all persons who are admitted to practice "in accordance with the provisions of this Act," shall become members of The State Bar and Section 46 of the Act prohibits all persons not active members of The State Bar from practicing law in the State.

Under Section 24 of the Act, the Board of Governors, with the approval of the Supreme Court, shall fix and determine "the qualifications for admission to practice law in this State." These qualifications for admission have been fixed and determined by the Board of Governors, and approved by the Supreme Court. There is nothing in the rules so adopted and approved, which would authorize admission without the examination of the class of lawyers under discussion.

It appears, therefore, that those lawyers who were admitted to practice law in the Territorial and Tribal Courts prior to Statehood, but who were never admitted by the Supreme Court of the State prior to the Act of the legislature of 1919, are now ineligible to admission by the Supreme Court without examination, as provided by The State Bar Act and the rules of admission adopted and approved by the Supreme Court.