VSB opinion: Non-lawyer can’t go into court on POA

VIRGINIA BEACH – A proposed Unauthorized Practice of Law opinion concluding that a non-lawyer cannot file pleadings and appear in court pursuant to a power of attorney without running afoul of the Uniform Power of Attorney Act was unanimously approved at the Virginia State Bar Annual Meeting on June 18.

The opinion, proposed UPL opinion 218, addresses whether the Uniform Power of Attorney Act (UPOAA) “permits a non-lawyer agent/attorney-in-fact to prepare, sign and file pleadings with a court on behalf of the principal and then appear and represent the interests of the principal before the court.”

In reviewing this issue, the Virginia State Bar Standing Committee on Legal Ethics concluded that the UPOAA has no carve out that allows a nonlawyer holding a power of attorney to proceed in this fashion.

“The Committee’s research reveals no authority that Virginia’s adoption of the UPOAA expanded the powers of a nonlawyer holding a power of attorney to represent the principal in court or prepare and sign pleadings on the principals’ behalf. Such activity is not a pro se representation but an attempt by the non-lawyer/attorney-in-fact to represent the legal interests of another and therefore the Unauthorized Practice of Law,” the opinion states.

The decision reaffirms a previous opinion from 1999, Virginia UPL opinion 194. In that opinion, the committee decided that a power of attorney did not allow a nonlawyer to file a motion of judgment in circuit court on behalf of a principal nor allow an attorney-in-fact to appear on the principal’s behalf.

“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,” UPL opinion 194 states. That opinion was approved by the Supreme Court of Virginia in May 2000.

UPL opinion 218 is the first look at the power of attorney issue since the Virginia General Assembly adopted the UPOAA in 2010. The portion at issue, Virginia Code § 64.2-1633, authorizes the holder of a power of attorney to “assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment, or defense…, or seek an injunction, specific performance, or other relief.” Additionally, the code states that a person granted a power of attorney can “bring an action to determine adverse claims or intervene or otherwise participate in litigation.”

The opinion states that an argument has been made that “assert and maintain” and “bring to action” in the UPOAA translates into a nonlawyer being able to appear before a court on behalf of the principal without lawyer representation. The committee refuted that claim by citing a decision in Manship v. Thomson from the U.S. District Court for the Western District of Virginia, which stated that “absent certain narrow exceptions, an individual seeking to litigate someone else’s claims is without standing and cannot bring a lawsuit.”

The committee also stated that in reviewing this opinion, they found that courts “have consistently held, without exception” that nonlawyers holding a power of attorney cannot prepare, sign and file pleadings with a court on behalf of a principal.

The committee received eight public comments during the review stages, which VSB Standing Committee on Legal Ethics chair Dennis J. Quinn said were mostly positive about the committee’s opinion.

UPL opinion 218 passed unanimously during a meeting of the Virginia State Bar Executive Committee on June 17. The opinion was presented by Quinn during the VSB Council Meeting on June 18.

“In the ethics committee’s opinion, the language about bringing and maintaining an action in court means that someone with a power of attorney can hire a lawyer on behalf of the principal. That’s part of their activities, not actually standing in court and arguing,” Quinn said during the June 18 meeting.

After briefly opening the floor for questions, the council motioned to adopt UPL opinion 218 and present it to the Supreme Court of Virginia. The motion passed unanimously via voice vote. The review of UPL opinion 218 took approximately eight minutes.

“The adoption of the Uniform Power of Attorney Act didn’t really change anything,” Quinn said in an email after the VSB Annual Meeting. “The Ethics Committee concluded that where the statute says a power of attorney authorizes the agent to bring and maintain an action in court, it does not mean the agent can sign pleadings and appear in court, it means the agent can hire an attorney at law to do so on behalf of the principal.”

The VSB Annual Meeting marked a return to normal of sorts for the Virginia State Bar. After not holding a meeting in 2020 due to the COVID-19 pandemic, the bar returned to Virginia Beach for a modified, more limited annual meeting in 2021. Against the backdrop of a near-perfect June day, the atmosphere around the meeting was jovial as many attending lawyers saw each other in person for the first time since before the pandemic.

“Isn’t it flat out wonderful to be together?” VSB President Brian L. Buniva said at the beginning of the council meeting. “We haven’t had this opportunity in over a year and man, I love you all.”

In addition to UPL opinion 218, the council meeting unanimously approved all of the nominating committee’s recommendations for several open or soon-to- be vacated positions. Additionally, the VSB honored Buniva, whose term as VSB president was set to expire, with a resolution honoring his career and service to the bar. Jay B. Myerson was sworn in at the end of the meeting as the new VSB president.