VIRGINIA UPL OPINION 175


Non-Lawyers Representation of Debtors at Creditors’ Meetings Held Pursuant to 11 U.S.C.

I am writing in response to your letter of October 20, 1993, requesting an Unauthorized Practice of Law advisory opinion dealing with non-lawyer representation of debtors of Section 341 meetings of creditors in bankruptcy cases.

The Committee considered your inquiry at its February 3, 1994 and March 3, 1994 meetings and has directed me to transmit its conclusions to you.

In pertinent part, Part Six: Section I: (B) of the Rules of the Virginia Supreme Court, Definition of the Practice of Law, finds that the relation of attorney and client exists, and one is deemed to be practicing law whenever

(l) 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....

(3) One undertakes, with or without compensation, to represent the interest of another before any tribunal — judicial, administrative, or executive....

Unauthorized Practice of Law Opinion No. 58, approved by the Supreme Court of Virginia effective July 1, 1984, found that it would constitute the unauthorized practice of law for a non-lawyer employee of a corporation to prepare on behalf of the corporation proposed orders to be entered in proceedings in the bankruptcy courts in Virginia. The Opinion reaches that conclusion after concluding that the state is not preempted from regulating the practice of law before the bankruptcy courts. In addition, the Committee has earlier opined that it similarly would constitute the unauthorized practice of law for a bank’s employee to cross-examine a debtor in Bankruptcy Court. See UPL Op. 113A.

As to your inquiry, the Committee is of the opinion that assistance provided to a debtor during a Section 341 meeting constitutes the provision of legal advice, as defined by the Rules, since it entails the application of legal principles to specific facts or purposes or desires in the context of the creditors’ questioning of the debtor. In addition, the Committee is of the opinion that the operation of a Section 341 meeting goes beyond the definition of a mere administrative hearing since the meeting is in the nature of a pre-trial hearing and the information gathered provides a basis upon which the Court may act. Furthermore, you indicate that the debtor participates in the Section 341 meeting after having been placed under oath. See also LEO 1451 (adopting the view of other jurisdictions which have implicitly included depositions within the definition of “tribunal???).

Committee Opinion
March 10, 1994

 

Updated: Aug 28, 2006