Non-Lawyer Expert Witness Testimony to Judge in Formal Judicial Proceeding.

I am writing in response to your letter of July 8, 1993 requesting an Unauthorized Practice of Law advisory opinion dealing with a non-lawyer expert witness' testimony to a judge in a formal judicial proceeding.

The Committee considered your inquiry at its September 9, 1993 meeting and has directed me to transmit its conclusions to you.

You have indicated that an attorney, representing a plaintiff in an action seeking both a declaratory judgment concerning ownership of real property and damages for removal of coal from the property, has engaged as an expert a non-lawyer who operates a title insurance business with many years of experience searching and reporting on titles, including titles to property in the county involved. The expert has been asked to provide an abstract of title both to the surface and to the minerals.

In addition to testimony regarding the title, the attorney intends to offer expert testimony from the same witness as to the status of legal title as disclosed by his investigation. You indicate that such testimony will require the interpretation of the meaning of documents comprising and affecting the chain of title, and the concepts attendant thereto, along with a knowledge of statutes, general law in the field, and judicial decisions not generally possessed by non-lawyers.

You have asked the Standing Committee on Unauthorized Practice of Law [“Committee???] to opine as to whether testimony to a judge in a formal judicial proceeding constitutes the unauthorized practice of law by the non-lawyer expert witness, either as to testimony concerning his abstract of title or as to his expert opinions and legal conclusions concerning ownership.

The appropriate and controlling Virginia Unauthorized Practice Rule is UPR 1-101(A) which, in pertinent part, precludes a non-lawyer from representing the interest of another before a tribunal. Part Six: Section I: Rules of Supreme Court of Virginia [emphasis added].

The Committee is of the opinion that the circumstances you present, i.e., a non-lawyer expert witness giving testimony in a formal judicial proceeding does not fall under the basic definition of the practice of law since that anticipates that one individual is representing another before a tribunal. Thus, the Committee opines that such expert testimony of a non-lawyer, which is not being offered to the general public, does not constitute the unauthorized practice of law.

Committee Opinion
September 23, 1993


Updated: Aug 28, 2006