UPL Opinion 216: Probation Officers’ Recommendations In Pre-Sentence Reports

This opinion addresses whether a probation officer engages in the unauthorized practice of law when making a sentencing recommendation, or gives an opinion regarding the appropriate disposition of a criminal matter, in his Pre-Sentence Investigation Report (PSI)  prepared pursuant to §19.2-299(A) of the Code of Virginia.  This Code section sets forth what the PSI should include:

…a report of the accused's criminal record as an adult and available juvenile court records, any information regarding the accused's participation or membership in a criminal street gang as defined in § 18.2-46.1, and all other relevant facts, to fully advise the court so the court may determine the appropriate sentence to be imposed. Unless the defendant or the attorney for the Commonwealth objects, the court may order that the report contain no more than the defendant's criminal history, any history of substance abuse, any physical or health-related problems as may be pertinent, and any applicable sentencing guideline worksheets.

The inquirer notes that “[t]hese reports are very influential at sentencing hearings because they are often the only factual information the judge has upon which to base their [sic] conclusions about the defendant’s character, dangerousness, potential for reform, and so forth.”  The inquirer also states that in a particular jurisdiction “every PSI concludes with a ‘recommendation summary,’ in which the probation officer offers an opinion to the court about the appropriate disposition of the case, including whether the defendant should be incarcerated or released on probation, and in some cases additional opinions about the specifics of the recommended sentence.”  The inquiry is whether this “recommendation summary” constitutes the unauthorized practice of law by the probation officer.

The controlling authority is the definition of the Practice of Law in the Commonwealth of Virginia, Part 6 §I, (B) and (C), Rules of the Virginia Supreme Court and UPC 1-2, Part 6 §I, Rule 1, Rules of the Virginia Supreme Court. 

DEFINITION OF THE PRACTICE OF LAW IN VIRGINIA
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

  • (1) One 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.
  • (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.
  • (3) One undertakes, with or without compensation, to represent the interest of another before any tribunal-judicial, administrative, or executive-otherwise than in the presentation of facts, figures, or factual conclusions, as distinguished from legal conclusions, by an employee regularly and bona fide employed on a salary basis, or by one specially employed as an expert in respect to such facts and figures when such representation by such employee or expert does not involve the examination of witnesses or preparation of pleadings.
  • (4) One holds himself or herself out to another as qualified or authorized to practice law in the Commonwealth of Virginia.

UPC 1-2. A non-lawyer may represent himself, but not the interest of another, before any tribunal. A non-lawyer regularly employed on a salary basis or one specially retained as an expert (whether as an independent contractor or an employee of another) may present facts, figures, or factual conclusions, as distinguished from legal conclusions, when such presentation does not involve the examination of witnesses or preparation of briefs or pleadings.

In the inquiry presented, the following was included as an example of the type of recommendations a probation officer makes in the PSI which may constitute the unauthorized practice of law:

Although one of the goals of the criminal justice system is rehabilitation, subject has been given sentences in the past with that aim, and he has failed abysmally.  We are now at the point where we have to weigh subject’s needs against the right of the public not to be victimized.  Since subject cannot seem to function in society without engaging in criminal activity, it appears that the only way to protect the community is to incarcerate him.  Therefore it is recommended that subject be sentenced to a period of incarceration, with nothing suspended, and that the shortest period of post-release supervision allowed by law be imposed.  If subject is sincerely interested in substance abuse treatment, he can participate while incarcerated with the Department of Corrections, and continue treatment upon release.

When a probation officer prepares a PSI, he is acting under an order of the court pursuant to Code §19.2-299(A).  The probation officer is advising the court, as ordered by the court, regarding information relevant to the court’s determination of the disposition of a case before it.  This information is based on the probation officer’s investigation of the defendant’s background and his/her interaction with the defendant.  Applying the definition of the practice of law in Virginia, the probation officer is not advising another regarding “the application of legal principles” to that other’s personal / individual “purposes or desires” nor preparing legal instruments for another.  He does not “represent the interest of another before any tribunal.”  Nor is he holding “himself or herself out to another as qualified or authorized to practice law in the Commonwealth of Virginia.”  While more closely analogous to acting as an “employee” to his “regular employer,” the probation officer, nevertheless, is not “representing” the court or anyone else in any manner nor can the probation officer be considered a “specially retained…expert.”  The probation officer prepares this PSI as part of his job, under order from a court, to report to the court. The probation officer is not in any manner providing any type of legal services to anyone. 

One might also look to Code §19.2-299(A), and ask whether the recommendations  the probation officer has included in the PSI exceeds the scope of his authority under the statute.  While statutory interpretation is generally beyond the purview of the Standing Committee on Unauthorized Practice of Law, it is instructive to consider positions taken by the courts on this issue. 

Some federal and state courts from jurisdictions other than Virginia have addressed whether certain acts by a probation officer is the unauthorized practice of law. For example, in applying 18 U.S.C. § 3603, “Duties of Probation Officers,”  some federal courts have addressed whether a probation officer engaged in the unauthorized practice of law by preparing and filing petitions for probation revocation.  The content of their petitions/reports frequently becomes another issue in these cases.  Generally the courts addressing this issue have taken a broad view and found that the probation officers are acting within the scope of the controlling statute and are not engaged in the unauthorized practice of law.  See United States v. Jones, 957 F.Supp. 1088, 1090-91 (E.D.Ark.1997); United States v. Berger, 976 F.Supp. 947 (N.D.Cal.1997); United States v. Wilson, 973 F.Supp. 1031 (W.D.Okla.1997); United States v. Burnette, 980 F.Supp. 1429 (M.D.Ala.1997).

…As a practical matter, then, the probation officer serves as a liaison between the sentencing court, which has supervisory power over the defendant's term of supervised release, and the defendant, who must comply with the conditions of his supervised release or run the risk of revocation.
…Finally, probation officers do not engage in the unauthorized practice of law by filing petitions to initiate revocation proceedings. But see Jones, 957 F.Supp. at 1091. "[T]he probation officer is doing no more than discharging [his] responsibility" to the sentencing court as required by 18 U.S.C. § 3603, the district court retains discretion to reject or accept the probation officer's recommendations, and either party may appeal from a sentencing court's adoption of the probation officer's recommendation. United States v. Montoya, 24 F.3d 1248, 1249 (10th Cir. 1994).

U. S. v. Davis, 151 F.3d 1304 (10th Cir.) (1998). 
State courts addressing this issue have taken a similar approach, finding that probation officers do not engage in the unauthorized practice of law when preparing and filing probation revocation petitions and providing reports to the court therein because they are “judicial employees” and act as “a State agent” and “an investigative and supervisory arm of the court.”  See Huzzie v. State, 253 Ga. App. 225, 558 S.E.2d 767 (2002); People v. Keller, 399 Ill. App.3d 654, 926 N.E.2d 890 (2010).  

Considering the weight of this range of legal authority regarding the scope of conduct of a probation officer and the definition of the practice of law,  it is the opinion of the Committee that the inclusion of the probation officer’s recommendations, as described in this inquiry, is not the unauthorized practice of law in Virginia. 

Committee Opinion
October 8, 2013

Updated: Oct 23, 2013