VIRGINIA UPL OPINION 62
Activities of Non-Lawyers in Serving as Guardian Ad Litem Of Infant in Custody Proceedings in Juvenile and Domestic Relations Court.
Subject: Activities of non-lawyer in serving as guardian ad litem of infant in custody proceedings in juvenile and domestic relations court.
Inquiry: May a non-lawyer who is an expert on child custody and child welfare serve as a guardian ad litem for the child in custody proceedings in a juvenile and domestic relations court in Virginia, and file motions, prepare orders and file briefs on behalf of the child?
Opinion: Unauthorized Practice Rule 1-101 provides in relevant part that “a non-lawyer, with or without compensation , shall not represent the interest of another before a tribunal, other than in the presentation of facts, figures or factual conclusions as distinguished from legal conclusions . . .??? UPC 1-2 further provides that “a non-lawyer may represent himself, but not the interest of another, before any tribunal. A non-lawyer regularly employed on a salary basis or one specially retained as an expert (whether as an independent contractor or an employee of another) may present facts, figures, or factual conclusions, as distinguished from legal conclusions, when such presentation does not involve the examination of witnesses or preparation of briefs or pleadings.??? The definition of the term “tribunal??? in UPC 1-1 includes a juvenile and domestic relations court in Virginia in a proceeding to determine custody of a child. The preparing and filing of briefs and pleadings, and the presentation of legal conclusions to the court by a non-lawyer, including a non-lawyer with special expertise in the subject matter of the controversy, are expressly prohibited by UPR 1-101 unless such activity is one which “is authorized by statute.???
Section 8.01-9 of the Code of Virginia provides for the appointment of “some discreet and competent attorney at law as guardian ad litem??? for a defendant under a disability, and further provides that “if no such attorney be found willing to act, the Court shall appoint some other discreet and proper person as guardian ad litem.??? While this statute authorizes the appointment on a non-attorney as guardian ad litem in some situations, it does not permit the appointment of a non-attorney as a guardian ad litem for an infant until some seasonable effort has been made to find an attorney who is willing to act. More importantly, Section 8.01-9 is inapplicable to a custody proceeding in a juvenile and domestic relations court in Virginia.
Juvenile and domestic relations courts are created, their jurisdictions are established, and the procedures they must follow are prescribed by Title 16.1 of the Code of Virginia. The procedure for appointing guardian ad litems in juvenile and domestic relations courts of Virginia is prescribed by Section 16.1-266 of the Code of Virginia. Under fundamental rules of statutory construction, the specific provisions of Section 16.1-266 for the appointment of guardians ad litem take precedence of the more general provisions of Section 8.01-9 of the Code. This rule of construction was codified by Section 16.1-69.1 of the Code, which repeals any other statutes inconsistent with the provisions of Title 16.1, to the extent of such inconsistency.
Section 16.1-266 of the Code provides for the appointment of guardians ad litem under various circumstances. Irrespective of the circumstance, in each instance the statute requires that the guardian ad litem be “a discreet and competent attorney at law.??? The exception contained in UPC 1-1, which permits the representation of another by a non-lawyer “when authorized by statute??? is therefore inapplicable to this case.
Since the preparing and filing of motions, and presenting legal conclusions to a tribunal by a non-lawyer expert constitutes the unauthorized practice of law unless specifically authorized by statute, and no statute authorizes such activity by a non-lawyer expert in a proceeding to determine child custody in a juvenile and domestic relations court in Virginia, such activity would constitute the unauthorized practice of law.
Approved by the Supreme Court
Of Virginia, January 18, 1985
Effective April 1, 1985
Updated: Aug 28, 2006