VIRGINIA UPL OPINION 194
Non-Lawyer Preparing and Filing With the Court a Pleading for Another for Whom The Non-Lawyer Has General Power of Attorney Conveying the Power to “Sue For.???
I am writing in response to your letter of April 22, 1999, requesting an Unauthorized Practice of Law advisory opinion dealing with a non-lawyer's preparation and filing of pleadings under a general power of attorney. A medical patient executed an instrument granting her son a general power of attorney. The authority conferred to the son under the power of attorney includes, inter alia:
“To request, receive possess, sue for . . . each and every sum of money, right or interest, due and owing, or that may become due and owing, to me [the mother] on any and every account, claim, contract, or tort . . . .???
Under the authority of the power of attorney, the son prepared, signed and filed a Motion for Judgment against a health care provider alleging several counts of medical negligence arising out of the care and treatment of his mother. He signed the pleading using his name as the mother’s attorney-in-fact. In addition, he prepared Answers to Interrogatories and Responses to Requests for Production, and signed these pleadings as well.
You have asked the committee to opine on two issues:
1. Whether a power of attorney authorizes an agent, a non-lawyer, to prepare, sign and file a Motion for Judgment and appear on behalf of the principal in a circuit court in the Commonwealth of Virginia?
2. Whether a general power of attorney is sufficient to authorize a non-lawyer to prepare, sign, and file pleadings and appear in court on behalf of the principal if the language in the power of attorney appears to confer that right?
The Committee considered your inquiry at its June 10, 1999 meeting and has directed me to transmit its conclusions to you.
The appropriate and controlling Virginia Unauthorized Practice Rules are :
UPR 1-101. Representation Before Tribunals.
(A) A non-lawyer, with or without compensation, shall not represent the interest of another before a tribunal, otherwise than in the presentation of facts, figures or factual conclusions, as distinguished from legal conclusions, except:
(1) A non-lawyer under the supervision of a lawyer who is a regular employee of a legal aid society approved by the Virginia State Bar in accordance with its rules and regulations adopted under Paragraph 54.1-3916 of the Code of Virginia may represent an indigent patron of such society before such a tribunal when authorized to do so by the governing body of such society and when such representation is permitted by the rules of practice of such tribunal. The supervising attorney shall assume personal professional responsibility for any work undertaken by the non-lawyer.(2) A law student may appear and represent others before such a tribunal in accordance with the third-year student practice rule.
(B) A non-lawyer regularly employed on a salary basis by a corporation appearing on behalf of his employer before a tribunal shall not engage in activities involving the examination of witnesses, the preparation and filing of briefs or pleadings or the presenting of legal conclusions.
In addition, the Supreme Court of Virginia, in defining what activity constitutes the practice of law, has stated:
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.
Va. S. Ct. R., Pt. 6, §I (B). A non-lawyer may represent himself, but not the interest of another, before any tribunal. Va. S. Ct. R., Pt. 6, §I, Rule 1, UPC 1-2. The committee has previously opined that the preparation of pleadings by non-lawyers is the unauthorized practice of law. UPL Op. 150 (app'd by Supreme Court of Virginia on February 26, 1993)(preparation of warrants in debt by debt collection agency is the preparation of “pleadings??? and thus unauthorized practice of law). A “pleading??? is defined as a document which initiates a civil action in a court and begins the legal process by which a claim is adjudicated or resolved. Potts v. Mathieson Alkali Works, 165 Va. 196, 207 (1935). The filing of pleadings with a court or tribunal constitutes an “appearance??? by such party. Bowles v. Bowles, 141 Va. 35, 126 S.E. 49 (1925) (filing of answer and demurrer constitutes a general appearance).
The Virginia Supreme Court, in its Unauthorized Practice Rules states:
The right of individuals to represent themselves is an inalienable right common to all natural persons. But no one has the right to represent another. It is a privilege to be granted and regulated by law for the protection of the public.
Va. S. Ct. R., Pt. 6, § I. Thus, the ability to practice law is a privilege granted and regulated by the state. The committee believes that such a privilege cannot be granted by one private citizen to another by virtue of a contract or power of attorney.
A power of attorney is an instrument creating an agency relationship. By that instrument, the principal confers upon the agent the authority to perform certain acts on his or her behalf. Cardinal Concrete Co. v. White, 19 Cir. L119851 (Fairfax Co. 1993) citing Stainback v. Read & Co., 52 Va. (11 Gratt.) 281, 286 (1854); Insurance Co. v. Barley, 57 Va. (16 Gratt.) 363, 373 (1863). An attorney-in-fact is defined as:
a private attorney (an agent to act in the place or stead of another) authorized by another for some particular purpose, as to do a particular act, or for the transaction of business in general, not of a legal character. The authority is conferred by an instrument in writing, called a “letter of attorney,??? or more commonly a “power of attorney.???Black's Law Dictionary at 118 (5th ed. 1979) (emphasis added)
Attorneys at law are defined as:
Persons admitted to practice law in [their] respective state[s] and authorized to perform both civil and criminal legal functions for clients; including the drafting of legal documents, giving of legal advice, and representing such before courts, administrative agencies, boards, etc. Id.
The general power of attorney in one sense authorizes the son to act on the mother's behalf, and confers the right to file suit or make claims on her behalf. But the right to practice law as an attorney is derived from a license issued by the state. 2A Mich. Jur. Attorney and Client §4 (1993). The power of attorney certainly gives one the authority to act on behalf another, and a power of attorney fulfills an important function, particularly if the principal is under a disability. Thus, for example, an attorney-in-fact may have the authority to execute contracts or deeds on behalf of the principal.
The language in the power of attorney authorizing the attorney-in-fact to sue, permits the son to engage the services of an attorney-at-law and to direct or instruct the attorney-at-law regarding the mother's objectives, approve a settlement, or to authorize a licensed attorney to file suit on the mother's behalf. It does not, however, confer the privilege to practice law.
If a general power of attorney authorizes unlicensed citizens to file suit or otherwise engage in the practice of law, such persons would be beyond the regulation of the bar, for they would hold no license against which discipline could be imposed. None of the rules of professional conduct could be enforced against such persons and therefore they could engage in misconduct with impunity.
The unauthorized practice of law is crime in Virginia, a class one misdemeanor. Va. Code §54.1-3904 (Repl. Vol. 1998). It is the committee's opinion that a private legal instrument or agreement, including a power of attorney, cannot authorize the performance of an activity which is illegal. Such legal instruments are unenforceable. As a general proposition, the courts in Virginia will not assist a person who participates in an activity that is immoral or illegal. See, e.g., Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721 (1990) (unsuccessful suit for damages arising out of sexually transmitted disease by plaintiff guilty of fornication) citing Miller v. Bennett, 190 Va. 162, 56 S.E.2d 217 (1949) (no wrongful death claim against abortionist); Levy v. Davis, 115 Va. 814, 80 S.E. 791 (1914) (cannot enforce repossession of furniture sold to house of prostitution); Roller v. Murray, 112 Va. 780, 72 S.E. 665 (1911) (action on illegal champertous contract). This principle is further demonstrated in the rule that fees charged by a person engaged in the unauthorized law are not collectible in court. Va. S. Ct. R., Pt. 6, §I. Therefore, a non-lawyer may not rely upon the provisions in a written power of attorney to engage in prohibited activity and the courts and third parties are not bound by the power of attorney in that respect. Permission given by a private party to another to engage in activities which only a licensed professional may perform is simply not binding on others.
In Harrison & Bates, Inc. v. LSR Corporation, 238 Va. 741, 385 S.E.2d 624 (1989) the Court held that a written commission-sharing agreement between an out-of-state broker and a Virginia-licensed real estate broker was unenforceable because the out-of-state broker was not licensed in Virginia and therefore not authorized to engage in brokerage activity and be compensated for such unlawful activity. The contract made between the two firms was in violation of Virginia's real estate licensing statutes and was therefore an illegal contract.
Though the foregoing analysis satisfies the committee's conclusion that a non-lawyer, acting as an agent under a written power of attorney cannot perform any activity constituting the practice of law, the committee's research has uncovered no judicial decision in Virginia that has squarely decided this issue. However, decisions in other states have reached the same conclusion as the committee. A California decision, In re Marriage of Cabellero, 27 Cal. App.4th 1139, 33 Cal. Rptr.2d 46 (1994), held that an "attorney-in-fact" may not act as an attorney on behalf of the principal, even though the principal was entitled to appear pro se. In the case of Gilman for Manheim v. Kipp, 136 Misc.2d 860, 519 N.Y.S.2d 314 (N.Y. City Ct. 1997) the court ruled that it was the unauthorized practice of law for an attorney-in-fact under a durable power of attorney to appear on behalf of the plaintiffs, out-of-state rental property owners. The court stated that the property owners could not, using a power of attorney, assign to a non-lawyer their right to appear in court pro se. See also Risbeck v. Bond, 885 S.W.2d 749 (Mo. App. 1994) (unauthorized practice of law for attorney-in-fact to file petition to quiet title on behalf of plaintiff, where attorney-in-fact not licensed to practice law in the state); Johns v. County of San Diego, 114 F.3d 974 (9th Cir. 1997) (attorney-in-fact did not have right to assert vehicle owner's due process claim in federal civil rights action arising out of incident in which vehicle was stopped, towed and stored; constitutional rights claim was personal and could not be asserted vicariously and attorney-in-fact, a non-lawyer, could not appear on behalf of others); Kohlman v. Western Pennsylvania Hospital, 438 Super. 352, 652 A.2d 849 (1994) (plaintiff's attorney-in-fact under power of attorney engaged in unauthorized practice of law by commencing malpractice action).
Thus, the committee is of the opinion that a power of attorney does not authorize a non-lawyer to prepare, sign, and file a Motion for Judgment in circuit court on behalf of a principal, who is a victim of alleged medical malpractice, nor may the attorney-in-fact appear in court on the principal's behalf. Such activity is the unauthorized practice of law. A general power of attorney is not sufficient to confer upon a non-lawyer the legal authority to practice law on the principal's behalf. The authority to practice law is conferred by the state through the issuance of a license to practice law.
June 15, 1999
Approved by VSB Council
October 29, 1999
Approved by Supreme Court of Virginia
May 1, 2000
Updated: Aug 29, 2006