Professional Guidelines

An agency of the Supreme Court of Virginia

The Virginia State Bar

Professional Guidelines

Unauthorized Practice Rule 9 - Administrative Agency Practice

Administrative Agency Practice.

UPR 9-101. Holding Out as an Expert.

  • (A) A non-lawyer shall not hold himself out as authorized to furnish to another advice or service under circumstances which imply his possession of legal knowledge or skill in the application of any law, federal, state or local, or administrative regulation or ruling applicable thereto, except that a person admitted to practice by an administrative agency may hold himself out as such to the extent permitted by such agency as long as he does not misrepresent the scope of his practice authorized by such agency.
  • (B) A person duly licensed or authorized to practice law in another state or before any administrative agency shall not use the descriptive term "law office" or its equivalent on any signs or listings in Virginia, unless he is an employee or member of a firm with one or more lawyers duly licensed to practice law in Virginia.

UPR 9-102. Agency Practice.

  • (A) A non-lawyer shall not furnish to another for compensation, direct or indirect, advice or service under circumstances which require his use of legal knowledge or skill in the application of any law, federal, state or local, or administrative regulation or ruling applicable thereto, except:
    • (1) As an employee to his regular employer.
    • (2) As permitted by the rules of such agency and reasonably within the scope of his practice authorized by such agency.
  • (B) A non-lawyer shall not undertake, with or without compensation, to prepare for another legal instruments of any character incident to his practice before an administrative agency, except:
    • (1) As an employee for his regular employer.
    • (2) In the regular course and reasonably within the scope of his practice authorized by such agency.
  • (C) As to representing the interest of another before an administrative tribunal, see Unauthorized Practice Rule 1, Practice Before Tribunals.

UPR 9-103. Immigration Practice.

  • (A) The preceding provisions of UPR 9 also apply to unauthorized non-lawyers who represent persons, with or without compensation, before federal administrative agencies in connection with petitions or applications for benefits under the Immigration and Nationality Act and other federal immigration and nationality statutes and regulations.
  • (B) For purposes of UPR 9-103(A):
    • (1) "Unauthorized" means unable to show specific authorization by the appropriate federal agency to practice before it. With respect to matters before the Immigration and Naturalization Service, this means unable to show recognition as an authorized non-lawyer representative pursuant to 8 CFR Part 292, to wit: providing for representation by law students, law graduates not yet admitted to the bar, "reputable individuals" appearing without direct or indirect remuneration, accredited representatives, accredited officials, and certain attorneys residing outside the United States.
    • (2) "Represent" means to engage in "practice" or "preparation" as those terms are defined, respectively, in 8 CFR ''1.1(i) and (k), to wit:"practice" means the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with the Service . . . ;"preparation" means the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed Service forms by one whose remuneration, if any, is nominal and who does not hold himself out as qualified in legal matters or in immigration and naturalization procedure or as 8 CFR Part 292 may be amended from time to time.
  • (C) The provisions of (A) and (B) above are not intended to prohibit an unauthorized non-lawyer from assisting an individual in the completion of forms which had been personally selected by the individual, to the extent that such assistance involves only the taking and transcription of dictation or the translation of such dictation into English. However, the referenced provisions are intended to prohibit such an unauthorized non-lawyer from selecting specific forms for completion or from advising the individual as to which forms are appropriate for completion and submission to the Service provided such activities require the use of legal knowledge and skill.

Unauthorized Practice Considerations.

UPC 9-1. Representing another before an administrative agency normally constitutes the practice of law.

UPC 9-2. Regulation of the practice of law before federal administrative agencies is the responsibility of Congress. When Congress grants authority to an agency to prescribe regulations governing the recognition and conduct of a person representing the interest of another before such agency, the State is preempted from enforcing its own rules of practice while such person is acting reasonably within the scope of the practice authorized by the agency. As to rules of practice before Virginia administrative agencies, see Unauthorized Practice Rule 1, Practice Before Tribunals.

UPC 9-3. Normally, a person authorized to practice before an administrative agency may give advice to others informing them of their rights and obligations as to matters pending before, to be presented to or otherwise within the jurisdiction of such agency; prepare applications, exhibits and other documents as required by such agency in the submission of matters to it and in the performance of its regulatory functions; appear before such agency at any hearing, formal or informal, within Virginia and, as otherwise permitted by such agency, represent the interests of others before such agency, including filing motions and briefs, cross examining witnesses, and making oral arguments as to matters of law; and hold himself out as qualified to perform such services before such agency within the scope of his agency license.

UPC 9-4. A person authorized to practice before an administrative agency may not prepare for another, not his regular employer, legal instruments not reasonably within the scope of his agency practice. For example, the preparation of a lease or contract to be approved by an administrative agency may facially appear to be incident to the regular course of conducting an approved agency practice; but such a document normally creates substantive rights and obligations for the parties under state law, and to prepare such documents and give advice concerning their significance beyond their compliance with federal law or regulations may constitute the unauthorized practice of law.

UPC 9-5. The privilege of practicing before most federal administrative agencies is not restricted to lawyers. The federal Administrative Procedure Act grants to an individual who is a member in good standing of the bar of the highest court of any state an initial right to represent others before any federal agency; but if such person is not duly licensed or authorized to practice law in Virginia or has not obtained the requisite revenue license required by Section 58.1-3700 of the Code of Virginia, he is subject to the same rules as a non-lawyer when his activities in Virginia extend beyond the scope of the practice authorized by the federal agency.

UPC 9-6. A person who is authorized to practice before an administrative agency and who is duly licensed or authorized to practice law in another state presumably has met certain minimal educational requirements and is subject to discipline for violations of a code of professional responsibility similar to that governing the conduct of lawyers licensed to practice in Virginia. As such, a person licensed or authorized to practice law in another state is entitled to a greater degree of latitude in the resolution of issues involving whether his activity is within the scope of the practice authorized by such agency and whether any legal instruments prepared by him are properly incident thereto.

UPC 9-7. Aliens are especially vulnerable to the unauthorized practice of law. Such unauthorized practice, which may include incompetent or fraudulent legal services, can cause serious economic harm, may result in the separation of families, and may even result in the death of an individual forcibly repatriated to another country if asylum is denied to him in the United States.

The Virginia State Bar recognizes that certain non-lawyers may be authorized to practice before a federal immigration agency. However, non-lawyers who are not so authorized are limited to providing assistance to an alien resident for such limited services as translation of documents, and assistance in the transcription of documents or answers provided by the alien, for a fee commensurate with such limited services. However, the selection of appropriate immigration forms, the assistance to the alien in the information to be provided on such forms, and other related services by an unauthorized non-lawyer may constitute the unauthorized practice of law.

Furthermore, in addition to engaging in the unauthorized practice of law, an individual who holds himself or herself out as qualified to render such legal services and performs such services, may also be subject to criminal prosecution, to civil remedies such as quo warranto actions, and to such discipline and sanctions as may be imposed under federal statutes and regulations.

Updated: April 20, 2010