Non-Lawyer as In-House Counsel.

The Committee is of the opinion that it does not constitute the unauthorized practice of law for a non-lawyer to provide legal advice to or prepare legal instruments for his regular corporate employer since the definition of the practice of law does not encompass one who undertakes to provide such services to a regular employer. The Committee is of the further opinion that it is not improper for a non-lawyer to use the title “General Counsel” when employed by a corporation and performing such permissible tasks as described below.

The appropriate and controlling Virginia Unauthorized Practice Rules are found in part (B) of the definitional section of Part Six: Section I: Unauthorized Practice Rules of the Supreme Court of Virginia. In particular, section (B)(1) finds that one is deemed to be practicing law whenever

[o]ne undertakes for compensation, direct or indirect, to advise another, not his regular employer, in any matter involving the application of legal principles to facts or purposes or desires;

and section (B)(2) similarly finds that one is deemed to be practicing law whenever

[o]ne, 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. [emphasis added]

In addition, section (B)(3) permits an “employee regularly and bona fide employed on a salary basis” to present “facts, figures, or factual conclusions, as distinguished from legal conclusions” in the representation of the employer before a judicial, administrative, or executive tribunal.

Finally, UPR 1-101(B) concludes, in pertinent part, that

A non-lawyer regularly employed on a salary basis by a corporation appearing on behalf of his employer before a tribunal shall not engage in activities involving the examination of witnesses, the preparation and filing of briefs or pleadings or the presenting of legal conclusions.

In earlier opining that a non-lawyer’s advising of or preparing legal documents for a corporate employer would not constitute the unauthorized practice of law, the Committee concluded that, unless the in-house attorney wished to represent the interest of the corporation before a tribunal, bar membership would not be required. See UPL Op. 160 (October 15, 1992); See also UPL Op. 103 (February 9, 1987).

[Part Six: Section I: Unauthorized Practice Rules (B)(1) and (3); UPR 1-101(B); UPL Ops. 160, 103]

Committee Opinion
August 12, 1994