UPL Opinion 213
Attorney on Associate Status Representing Multiple Ownership Interests in Negotiation and Drafting of Easement
You have asked the Committee to opine as to whether the following activity is the unauthorized practice of law: A member of the Virginia State Bar ("VSB") is retired from practice and on Associate membership status.1 He is the owner of an undivided interest in a tract of land and wants to proceed pro se to protect the tract under a conservation easement. In doing this he wants to verify ownership of other undivided interests, negotiate and prepare an easement deed on behalf of the entirety, representing all interests, and reimburse expenses out of the sale of tax credits.
Acting pro se, landowner/Associate member can do whatever he believes necessary to protect his own interests. His proposed action to be taken on behalf of any other owner’s interests would be unauthorized practice of law. The controlling authority on this issue is Part 6, §I, Introduction, (B)(Definition of the Practice of Law in Virginia) and (C) (Definition of "Non-lawyer")Rules of the Virginia Supreme Court; Unauthorized Practice Rule ("UPR") 6-103 (A); Unauthorized Practice Consideration ("UPC") 6-5; Part 6, §IV, ¶ 3(b) Rules of the Supreme Court of Virginia (Classes of Membership — Associate Members).
The language in the Introduction to Virginia’s Unauthorized Practice of Law Rules and Considerations is clear:
The right of individuals to represent themselves is an inalienable right common to all natural persons. But no one has the right to represent another; it is a privilege to be granted and regulated by law for the protection of the public. (Emphasis added.)
The Definition of the Practice of Law in the Commonwealth of Virginia states:
Generally, the relation of attorney and client exists, and one is deemed to be practicing law whenever he furnishes to another advice or service under circumstances which imply his possession and use of legal knowledge or skill.
Specifically, the relation of attorney and client exists, and one is deemed to be practicing law whenever
* * *
(2) 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.
* * *
While the individual described in the present inquiry is a member of the Virginia State Bar, these provisions (and restrictions) of the Rules apply to him because he holds only Associate membership status. See footnote 1 supra. Associate members "may not practice law" in any manner. For purposes of the practice of law, Associate members are essentially "non-lawyers," i.e. "any person… not duly licensed or authorized to practice law in the Commonwealth of Virginia." Part 6, §I (C), Rules of the Supreme Court of Virginia. In the inquiry presented, this individual is trying to organize all of the various ownership interests in a certain tract of land and negotiate and prepare on behalf of all of the interests a conservation easement to protect the land in its entirety. To do this would necessarily require at some point discussing with the other landowners what their respective legal rights were and explaining to them the need for and consequences of securing this easement, all of which constitutes legal advice. However, Part 6, §I (B)(1) of the Rules of the Supreme Court of Virginia states that such advice is deemed to be the practice of law only if it is provided for compensation. In this case, the landowner/Associate bar member would not be paid by these other landowners for his services so providing this advice would not, by itself, be unauthorized practice. Drafting the easement, however, would be preparing a legal instrument for another(s) and if the landowner/Associate member did that on behalf of all of the landowners he would be engaging in unauthorized practice whether he was paid for the service or not. Part 6, §I (B)(2), Rules of the Supreme Court of Virginia.
As to the drafting of the easement, the inquiry requests an interpretation and application of UPC 6-5, which is a comment to UPR 6-103 (A)(1). UPC 6-5 states:
An individual, if he chooses to do so, may draw or attempt to draw legal instruments for himself or affecting his property. (Emphasis added.)
UPR 6-103 (A)(1) states:
Unless a party to the transaction, a non-lawyer shall not, with or without compensation, prepare for another legal instruments of any character affecting the title to or use of real estate.
(1) A non-lawyer may prepare a deed for any real estate owned by him. A non-lawyer may prepare a deed of trust or deed of trust note for any real estate owned by him or in connection with any transaction to which he is party involving its purchase, sale, transfer or encumbrance. (Emphasis added.)
* * *
The key to this rule provision and the consideration is that the non-lawyer acting pro se must be the owner of the property or he/she must be a party to the transaction involving a piece of real estate and he/she can only act for him/herself, not for anyone else. The language "affecting his property" in UPC 6-5 would allow the landowner to draft a legal instrument (such as an easement) which affects the piece of property he actually owns and to represent himself and his own interests in such a transaction but it does not authorize a non-lawyer to act on behalf of another landowner even if the various pieces of property are all part of a whole. This language cannot be construed to broaden the scope of what a non-lawyer can do for another. This would be inconsistent with Rule 6 itself as well as with the Definition of the Practice of Law generally.
April 8, 2008
Supreme Court Approved
February 27, 2009
1 Part 6, §IV, Para. 3(b) Rules of the Supreme Court of Virginia:
Associate Members — Those persons who have heretofore or may hereafter be admitted to practice law in the courts of this state but who are not presently so engaged and all persons on the law faculties of any law schools of this state that have been approved by the American Bar Association may be come associate members of the Virginia State Bar upon application to the secretary and payment of the required dues. Associate members shall be entitled to all the privileges of active members except that they may not practice law, vote or hold office (other than as members of committees) in the Virginia State Bar.