Document
Preparation by Non-Lawyers.
In acquiring
property by deed, the Virginia Department of Transportation
has for years used a form deed prepared by the Attorney
General’s Office. Department employees fill in the description
of the property being acquired — a description
not taken from the deed book, but a technical description
based on a survey of the needed right-of-way which
references station numbers along a highway plat which
is attached to and recorded with the deed conveying
the property.
Prior
to preparing a deed, Department employees also prepare
option agreements, using a form prepared by the Office
of the Attorney General, again filling in the technical
description of the property in the Option Agreement. This Agreement is sent to the property-owner(s)
at the conclusion of negotiations as part of the Department’s
offer for the property.
If the option is executed by the property-owner(s),
a deed is prepared.
If
the landowner rejects the Department’s offer
for the property, a Certificate of Take/Deposit is
filed with the Clerk, which is recorded in the deed
book. This Certificate contains a technical
description of the property (same description as the
Option Agreement) being acquired for the roadway and
defeasible title to the property is transferred to
the Commonwealth of Virginia upon recordation of the
Certificate. See § 33.1-119 et seq. of the Code.
All
of these documents are prepared by employees of the
Virginia Department of Transportation (using forms
prepared by the Office of the Attorney General), and
are being performed for their ultimate employer, the
Commonwealth of Virginia.
Finally,
because of the increased workload resulting from the
Governor’s transportation initiatives, the Department
of Transportation has hired consultants to accomplish
appraising, negotiating, and relocation assistance
work for the Department.
You inquire if it would constitute the unauthorized
practice of law for these consultants to likewise
perform these document preparation services for the
Department.
The
employees of the Department of Transportation do not,
in the Committee’s opinion, engage in the unauthorized
practice of law by filling in the option agreements
or the Certificates prepared by them in their capacity
as employees. Part 6, Section I (B)(2) of the Rules
of the Supreme Court of Virginia provides that one
is deemed to be practicing law whenever:
“One,
other than as a regular employee acting for his employer,
undertakes, with or without compensation, to prepare
for another legal instruments of any character, other
than notices or contracts incident to the regular
course of conducting a licensed business.”
Under
this definition, Department employees would be allowed
to prepare the documents discussed.
The question
of consultants being allowed to perform the same functions
seems to turn on whether or not they are regular employees
acting for their employer.
If they are, clearly their document preparation
activities would be allowed as in Part 6, Section
I (B)(2) of the Rules of Court.
It
is the Committee’s further opinion that such
employees may insert the property description as noted
without engaging in the unauthorized practice of law.
Committee
Opinion
October 7, 1988
