VIRGINIA UPL OPINION 156


Estate Settlement; Non-Lawyer/Executorís Court Appearance on Behalf of Himself in His Fiduciary Capacity

This is in response to your letter of October 23, 1991, requesting an Unauthorized Practice of Law advisory opinion dealing with a non-lawyer/Executor's representation in court of himself in his fiduciary capacity.

The Committee considered your inquiry at its December 18, 1991 and February 19, 1992 meetings and has directed me to transmit its conclusions to you.

The appropriate and controlling Virginia Unauthorized Practice Rule are UPR 1-101(A) which precludes a non-lawyer from representing the interest of another before a tribunal, otherwise than in the presentation of facts, figures or factual conclusions, as distinguished from legal conclusions; and UPR 4-104(C) which prohibits a non-lawyer from undertaking to represent the interest of another before any tribunal, judicial, administrative or executive, in the settlement of an estate or trust otherwise than in the presentation of facts, figures or factual conclusions except to offer a will for probate, to qualify as a fiduciary in any uncontested proceeding, or to prepare and file accountings. Further guidance is available through Unauthorized Practice Consideration 4-8 which, in pertinent part, indicates that:

n administering and settling the affairs of an estate, a fiduciary is not acting primarily for himself.

(emphasis added)

The committee is of the opinion that, in the context of the Unauthorized Practice Rules, the estate is “another,??? separate and apart from the person of the Executor, and its interests are not necessarily completely congruent with those of the Executor. Thus, the Committee is of the opinion that a non-lawyer’s participation in advancing or defending the interests of the estate, otherwise than in the presentation of facts, figures or factual conclusions, would constitute the unauthorized practice of law since the non-lawyer’s role as Executor of the estate does not render any representation of the estate by the non?lawyer to be a pro se appearance.

Committee Opinion
March 12, 1992

 

Updated: Aug 28, 2006