Opinion 276
Question Presented
X, licensed to practice in Oklahoma and before the U. S. Patent Office, has moved to Texas. He plans to join the Texas firm of W and V after he is admitted to the Texas bar. X is presently employed by W and V. He is also rendering legal services to some Oklahoma clients. He can be of service to the firm of W and V in preparing patent applications for clients of W and V. Can X: (1) Represent his Oklahoma clients in his own name prior to being admitted to the Texas bar? (2) Represent his Oklahoma clients in the name of W and V prior to being admitted to the Texas bar? (3) Handle the legal problems of his Oklahoma clients if all correspondence is handled by W or by V? (4) Prepare patent applications and other papers for filing in the Patent Office under his own name for a Texas client? (5) Prepare patent applications and other papers for filing in the Patent Office in the name of W and V for a Texas client? (6) Sign general correspondence under the firm name of W and V?
18 Baylor L. Rev. 349 (1966)
UNAUTHORIZED PRACTICE OF LAW - AIDING A LAWYER, NOT ADMITTED IN TEXAS, TO PERFORM SERVICES OF A LAW CLERK AND SERVICES PERMITTED BY HIS LICENSE TO PRACTICE BEFORE THE U. S. PATENT OFFICE
While a Texas firm may not, by employing a lawyer not admitted to practice in Texas, aid him in the unauthorized practice of law, a Texas firm may employ a lawyer, prior to his admission to the Texas bar, as a law clerk and also to perform those services which he is authorized to perform by virtue of his license to practice before the U. S. Patent Office.
Canon 43.
The question largely involves problems of the unauthorized practice of law in Texas. Questions concerning the unauthorized practice of law are within the province of the Unauthorized Practice of Law Committee, and the Professional Ethics Committee has not been delegated the authority to issue advisory opinions of that nature.
Until X is admitted to the Texas Bar, he is not subject to the Texas Canons. There is an ethical problem, however, in regard to the activities of W and V; for Texas Canon 43 proscribes a lawyer's aiding the practice of law by a person not a member of the Texas Bar. Obviously, W and V may not ethically aid X in engaging in activities which constitute the unauthorized practice of law in Texas. Without attempting to decide or to issue an advisory opinion on the point, this committee assumes that X is not engaged in the unauthorized practice of law when his work is purely that of a law clerk working under the supervision of a Texas lawyer and for the Texas lawyer rather than for a client. It is assumed also that X is not engaged in the unauthorized practice of law when his work is incident to the preparation and prosecution of patent applications before the Patent Office and within the authority conferred upon him by virtue of the Patent Office regulations, preemptive of state law; Sperry v. Florida, 10 L.Ed. 2d 428 (1963). If these assumptions are correct, W and V do not violate Canon 43 by aiding X to perform services that, because the services are those of a law clerk or those authorized by his license from the U. S. Patent Office, do not constitute the unauthorized practice of law. (9-0.)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 276 (1963)