dissenting:
1 1 I respectfully dissent from the majority opinion. Norton hired attorneys to represent him in an action against Kubn arising out of the purchase of 3 pairs of Emu birds. Norton and attorneys reduced their contract of employment to a writing. The first paragraph of the parties' contract consists of one sentence which identifies the parties and authorizes Counsel's "representation ... and other investigations ... as they deem necessary to properly effectuate such representation in regard to the matter of the investigation, preparation and trial of any and all claims against any and all persons, companies, and others arising out of the purchase of three (8) Emu breeding pairs from Charles Kuhn, a citizen of Texas." (Emphasis added.)
I. The Court of Civil Appeals correctly determined that the specific question of duty in this case should be resolved by reference to the contract of employment between Norton and the attorneys.
12 In its opinion, the Court of Civil Appeals correctly determined that the question of whether attorneys had a duty to file Norton's claims in a Texas court had to be resolved by reference to the contract of employment. In examining the contract of employment, the Court of Civil Appeals opinion concluded that the parties contract was ambiguous on this question. The opinion further found that the evidentiary materials submitted in connection with the summary judgment motion raised a mixed question of law and disputed fact that cannot be decided on summary judgment.
1 3 In reversing the Court of Civil Appeals, the majority opinion states that an Oklahoma attorney has no duty to file a lawsuit in the state of Texas or in any other foreign jurisdiction where the attorney is not licensed to practice. In determining that no such duty exists, the majority opinion makes virtually no reference to the contract of employment between Norton and the attorneys. Instead, the majority opinion simply declares, without any discussion whatsoever, that Norton's malpractice action is based on the status of his attorneys and not on the employment agreement with his attorneys.
14 I cannot agree. In the petition alleging his malpractice claim, Norton continually referred to the contract of employment with his lawyers and even attached it as an exhibit. It is quite clear that Norton based his malpractice claim on what he perceived as the failure of the attorneys to exercise ordinary skill and diligence in performing the tasks which they undertook in the employment agreement. I imagine that he will be quite surprised with the manner in which the majority opinion has transformed his malpractice claim from one where liability is based on the contract of employment to one where liability is based on the status of his attorneys.
15 While legal malpractice constitutes a tort, in reality, lability rests on the attorney's employment by the client. See, Funnell v. Jones, 1985 OK 73, 737 P.2d 105, 107. Before an attorney can be held liable, it must appear that the loss suffered by the client arose from the attorney's failure or neglect to discharge some duty which was fairly within the purview of his employment. See, Vanguard Production, Inc. v. Martin, 894 F.2d 375 (1990 10th Cir) (attorney owes common-law duty of ordinary care and workmanlike performance on underlying contract with client); State ex rel. OBA v. Green, 1997 OK 39, 936 P.2d 947, 956 (attorney has obligation to provide services for which he was hired). In my opinion, the Court of Civil Appeals correctly determined that the specific ques *594tion of duty in this case should be resolved by reference to the contract of employment between Norton and the attorneys.
II. Even within a malpractice claim that is so-called 'status based," the issue of duty should not be resolved in such a categorical fashion.
T6 The majority opinion reasons that public policy interests prohibit this Court from imposing a duty upon an attorney to file a lawsuit in a jurisdiction where the attorney is not licensed to practice. In the view of the majority, imposing such a duty would subject the attorney to discipline for the unauthorized practice of law. Rule 5.5, Rules of Professional Conduct, 5 0.8.1991, ch. 1, app. 3-A.
T7 I do not view Norton as seeking to impose a duty upon attorneys that would subject them to discipline for professional misconduct. As recognized by the majority decision, Texas (and every other state and federal court throughout the United States) has a procedure by which an attorney may seek temporary admission to practice law in a case by pro hac vice motion. Although admission is within the sound discretion of the court, it is rarely denied to an attorney who is licensed by and in good standing in another jurisdiction.
18 Because the majority opinion categorically refuses, upon public policy grounds, to impose a duty on an Oklahoma attorney to file a lawsuit in a state where the attorney is not licensed to practice law, a question remains as to whether those same public policy grounds prevent an attorney from contractually assuming such'a duty. May an Oklahoma attorney agree to file a personal injury case on behalf of his client if he is not licensed to practice in Kansas? Based on the majority opinion, I can only conclude that he cannot without engaging in the unauthorized practice of law.
T9 In today's modern technological society, the legal profession is increasingly engaged in national and even global controversies. Lawyers routinely represent clients in cases that require appearances in state or federal courts throughout the United States. Lawyers today are often unable to forecast the jurisdictions in which their clients will need representation. Frequently they are not active members of the bar in jurisdictions in which they are called to represent their clients. In my opinion, the holding in the majority opinion flies in the face of modern practice of law.
IH. Summary
110 In summary, I1 cannot accept the notion that a lawyer has no duty under any cireumstances to file a case in a jurisdiction where the lawyer is not licensed to practice law simply because he is not a member of the bar. The issue of duty should be resolved by reference to the attorney-client relationship as defined by the employment agreement and not by reference to the bar membership of the attorney.