VIRGINIA UPL OPINION 154


Lay Employees Appearing in General District Court.

I am writing with regard to the Committee’s recent reconsideration of the above-referenced Unauthorized Practice of Law Opinion, originally rendered to you on October 28, l99l. The Committee reviewed the Opinion at its May 20, 1992 and June 8, 1992 meetings, and I have been directed to respond on the Committee’s behalf.

Your original request for an Opinion was directed to The Honorable Mary Sue Terry on March 12, 1991, and subsequently referred to this Committee on August 14, 1991. Your request raised three questions:

l. May a non-attorney employed by a corporation, public body, governmental agency, partnership or sole proprietorship file motions to set aside a judgment, rehear a case, move to enforce garnishments, move to amend a warrant, request records by subpoena duces tecum, or ask that a show cause or capias order be issued for persons who fail to appear or answer a garnishment?

2. May such a non-attorney employee as described in #1 above appear on a motion to rehear and testify as to and/or argue the employer's legal position?

3. May a lay employee of an automobile liability insurance carrier appear and ask for a judgment in the name of the carrier, as subrogee of an insured vs. a third party tort feasor?

In response to your first and second questions, the Committee is of the opinion that the non?lawyer’s activity on behalf of the employer, in General District Court, is governed by the statutory requirements as set forth in §16.1-88.03, Va. Code Ann. (1990 Cum. Supp.).

It is the Committee’s understanding that the relevant Code section has been recently amended by the 1992 session of the Virginia General Assembly and that those amendments will be effective July 1, 1992. Those amendments significantly broaden the ability of a corporation's employees to pursue matters on behalf of the corporation, and now permit a corporation's president, vice-president, treasurer or other officer or full-time bona fide employee, upon proper authorization by the board of directors, to prepare, execute, file, and have served on other parties, in any proceeding in a general district court, a warrant in debt, motion for judgment, counterclaim, crossclaim, and garnishment summons, without the intervention of an attorney. [emphasis added] The statute explicitly precludes a non-lawyer from filing a bill of particulars or grounds of defense or to argue motions, issue a subpoena, rule to show cause, capias, file or interrogate at debtor interrogatories, or to file, issue or argue any other paper, pleading or proceeding not specifically enumerated.

In response to your third question, regarding a lay employee of an automobile liability insurance carrier appearing and asking for a judgment in the name of the carrier, as subrogee of an insured vs. a third party tort-feasor, the committee is of the opinion that a full-time bona fide lay employee of the carrier may so act on behalf of the carrier, in accordance with the requirements of the same Virginia Code section 16.1-88.03. However, the Committee is of the further opinion, that such statutorily permissible activity may be undertaken only on behalf of the employer and not on behalf of the employer/insurance carrierís insured. Thus, the Committee opines that it would constitute the unauthorized practice of law for employees of the carrier to file appear and ask for judgment for amounts to cover the insureds’ deductibles. See Rules of Supreme Court of Virginia, Part Six: Section I(B)(3); UPR 1-101(A); UPC 1-2; UPL Op. 144.

The Committee believes that the right of the insured with respect to the recovery of the deductible interest is beyond the scope of this Opinion. It is the Committee’s understanding that the insured has the right to prosecute in its own name its claim for the deductible amount, in accordance with statutory authority, contract and insurance principles, and the Committee cautions that the insurance carrier should handle the enforcement of its claim with due regard to the rights of its insured.

This opinion is based only on the questions posed and is subject to review by Bar Council at its next regularly scheduled meeting in accordance with Part Six: Section I: ¶10(c)(iv) of the Rules of the Virginia Supreme Court. Should Council approve the Opinion, it will then be reviewed by the Supreme Court pursuant to Part Six: Section I: ¶10(f)(iii).

Approved by the Supreme Court
of Virginia, January 8, 1993
Effective February 1, 1993

 

Updated: Aug 28, 2006