VIRGINIA UPL OPINION 160


VSB Member Employed at Engineer and De Facto In House Counsel.

You have advised that an individual is licensed in Virginia both as a lawyer and an engineer and is employed by an architectural/engineering firm in a non-legal position with the title “Head, Administration of Construction.??? In that role, the individual directs the firm’s estimating, specifications, and construction administration groups which are responsible for the preparation and administration of contract documents on behalf of various owners/clients. Those duties include the completion of owner/contractor contract forms and the interpretation of contract terms and conditions, typically employing standard industry contract forms such as those prepared by the American Institute of Architects and the Engineers Joint Contract Document Committee. In addition, due to the individual’s legal background, he acts as the firm’s “de facto??? in-house counsel, providing advice to corporate officers and employees on topics such as potential architect/engineer liability and on the interpretation of contract terms and conditions, and drafting clauses or contracts whenever available standard industry contract forms are insufficient or otherwise inappropriate.

You have inquired as to (1) what class of bar membership an “in-house counsel??? must maintain; (2) whether activities associated with the completion of standard industry contract forms on behalf of various owners/clients constitute the unauthorized practice of law; and (3) if the supervision of non-lawyers in the preparation of standard industry construction contracts would constitute aiding the unauthorized practice of law.

The practice of law in Virginia is defined as a non-lawyer’s (1) advising another, not his regular employer, for direct or indirect compensation, in any matter involving the application of legal principles to factors or purposes or desires; (2) preparing for another, not his regular employer, with or without compensation, legal instruments of any character; or (3) representing the interest of another, with or without compensation, before any tribunal - judicial, administrative, or executive. Part Six: Section I: (B), Rules of the Supreme Court of Virginia (emphasis added).

The Committee has previously opined that it does not constitute the unauthorized practice of law for a non-lawyer to provide legal advice to his regular corporate employer since the definition of the practice of law does not encompass one who undertakes to advise his regular employer in matters involving the application of legal principles to facts or purposes or desires. UPL Op. 103 (February 9, 1987) (citing Rules of the Virginia Supreme Court).

The Committee is of the continued opinion that a non-lawyer’s advising of or preparing legal documents for a corporate employer would not constitute the unauthorized practice of law. Therefore, the Committee believes that, unless the in-house attorney wishes to represent the interest of the corporation before a tribunal, bar membership is not required. In response to your first question, therefore, in the event that the in-house counsel does wish to appear before a tribunal on behalf of the employer, active bar membership would be required; in all other circumstances, the class of membership is not germane.

In response to your second question, the Committee has previously issued UPL Opinion 57 which was approved by the Supreme Court on December 2, 1983. That Opinion concluded that no lay corporation may employ lawyers who would provide legal services to the corporation’s customers. Thus, based upon the definition of the practice of law and UPL Opinion 57, the Committee is of the opinion that it would constitute the unauthorized practice of law for the in-house counsel to provide legal services, including the completion of standard industry contract forms, to the various owners/clients of the architectural/engineering firm since those owners/clients are not the “regular employer??? of the in-house counsel and since the architectural/engineering firm, as a lay firm, is not authorized to provide legal services.

Finally, since bar membership is not a requisite for an individual to advise or prepare documents for his regular employer, the Committee is of the opinion that it would not constitute the unauthorized practice of law for non-lawyer employees to prepare standard industry construction contracts for the firm, although preparation of such documents for clients of the firm would not be permissible. Although this Committee is not authorized to render opinions regarding the Disciplinary Rules, that being the province of the Standing Committee on Legal Ethics, it appears to the Committee that if the employees’ preparation of contracts for the firm does not constitute the unauthorized practice of law, it would follow that the supervision of such employees would not be an activity in furtherance of any unauthorized practice of law.

Committee Opinion
October 15, 1992

 

Updated: Aug 28, 2006