Responding to Unauthorized Practice at Quasi-Judicial Hearing Before Government Body
Adopted: April 20, 2007
Opinion explains the duties of a lawyer who represents a local government and of a lawyer who is elected to the governing body of the local government relative to a nonlawyer appearing in a representative capacity for a party at a zoning variance and other quasi-judicial hearings before the government body.
Inquiry #1:
In Authorized Practice Advisory Opinion 2006-1, Appearances at Quasi-Judicial Hearings on Zoning and Land Use (October 20, 2006), the Authorized Practice Committee of the North Carolina State Bar was asked whether it is the unauthorized practice of law for an individual who is not an active member of the State Bar to appear in a representative capacity for a party in a quasi-judicial hearing before a planning board, board of adjustment, or other body of local government. In the opinion, the Authorized Practice Committee observed that a hearing on an application for a special use permit or for a variance under zoning ordinances is quasi-judicial in nature, noting, among other things, that evidence is formally presented; witnesses are sworn, testify, and cross-examined; the body has the authority to issue subpoenas; a record is created and preserved; the decision must be based upon the evidence presented and include findings of fact; and the decision is reviewable by an appellate court based solely upon the record of the proceeding. The committee also observed that "the law is…clear that an appearance on behalf of another person, firm, or corporation in a representative capacity for the presentation of evidence through others, cross-examination of witnesses, and argument on the law … is the practice of law." The opinion concludes, therefore, that appearance in a representative capacity at such quasi-judicial proceedings is limited to active members of the State Bar. See N.C. Gen. Stat. §§84-2.1 and 84-4.
It is a regular practice, particularly in small communities, for a petitioner at a hearing on a variance to be represented by a nonlawyer such as an architect, landscape architect, engineer, or surveyor. The planning department of the local government is typically made a party to the proceeding and, because of limited resources, appears at the hearing through a nonlawyer employee. The staff usually presents a factual narrative of the zoning history of the property, the nature and effect of the variance requested, and the position of the planning department on the validity of the proposed variance and its consequences for the community. Typically, the staff does not advocate a particular outcome.
Lawyer A regularly represents City. In this capacity, he provides legal advice to the city council and to the administration of City. During a hearing on a petition for a variance, Lawyer A advises the council; he does not advise or represent the planning department or city administration.
Rule 5.5(d) of the Rules of Professional Conduct prohibits a lawyer from assisting another person in the unauthorized practice of law. At a hearing on a petition for a variance or other similar quasi-judicial proceeding, what is Lawyer A's duty pursuant to Rule 5.5(d)?
Opinion #1:
As soon as Lawyer A determines that a nonlawyer is appearing in a representative capacity for a petitioner, Lawyer A must inform the city council of the holding in Authorized Practice Advisory Opinion 2006-1 and advise the council on the legal implications of the opinion. If the council decides to proceed with the hearing despite the advice of Lawyer A, Lawyer A may continue to provide advice to the members of the council on any matter that arises during the remainder of the hearing.
Inquiry #2:
Is Rule 5.5(d) applicable to the conduct of a lawyer who is serving as an elected member of the governing body of a local government?
Opinion #2:
Many of the Rules of Professional Conduct are applicable to a lawyer's conduct without regard to whether the conduct occurs while the lawyer is acting in her capacity as a lawyer or in some other capacity. Rule 5.5(d), however, usually applies to conduct by a lawyer who is acting in her capacity as a lawyer. See, e.g., Rule 5.5, cmt. [8]-[9]. The rule prohibits "assisting" a nonlawyer in the unauthorized practice of law. A lawyer who is an elected member of a governing body does not "assist" a nonlawyer in the unauthorized practice of law if she determines that it is her duty as an elected official to participate as a member of a hearing panel for the governing body although the petitioner is represented by a nonlawyer.
Inquiry #3:
Lawyer M is an elected member of City Council. She is appointed to chair a hearing on a petition for a variance. Is Lawyer M required to prohibit nonlawyers from appearing on behalf of the parties at the hearing?
Opinion #3:
No. See opinion #2.
Inquiry #4:
When a question is raised about the appearance of the nonlawyer in representative capacity for the petitioner, a member of the city council makes a motion to permit the nonlawyer to appear for the petitioner. Is Lawyer M required by Rule 5.5(d) to vote against the motion?
Opinion #4:
No. See opinion #2. However, if Lawyer M concludes that the activity is illegal, Lawyer M may have a fiduciary duty, as an elected official, to vote against the motion.
Inquiry #5:
The city council votes in favor of permitting the nonlawyer to appear in a representative capacity for the petitioner. Is Lawyer M required to object or to recuse herself from participating in the hearing?
Opinion #5:
No. See Opinion #2.
Inquiry #6:
Lawyer X is an employee of City and provides legal advice and representation to the city council and to the administration of the city. The administration informs Lawyer X that a nonlawyer employee of the planning department will appear on behalf of the planning department at every hearing on a petition for a variance. What is Lawyer X's duty pursuant to Rule 5.5(d)?
Opinion #6
No opinion is expressed on whether it is the unauthorized practice of law for a nonlawyer employee of the planning department to appear on behalf of the department at a hearing on a variance petition. On this issue, Authorized Practice Advisory Opinion 2006-1 provides as follows:
[This] opinion is … not intended to affect the ability of city and county planning staff to present factual information to the hearing board, including a recitation of the procedural posture of the application, and to offer such opinions as they may be qualified to make without an attorney for the government present, as the [Authorized Practice Committee] understands is the proper, current practice and role of the planning staff.
If the employee of the planning department is appearing in a representative capacity and not merely to present factual information or an opinion, and such conduct is the unauthorized practice of law, Lawyer X may not assist the employee to appear on behalf of the planning department at these hearings. Improper assistance would include preparing or assisting with the preparation of the nonlawyer's presentation or with any evidence the nonlawyer intends to present at a hearing. In addition, Lawyer X should advise the city administration of the ruling in Authorized Practice Advisory Opinion 2006-1, explain its legal implications, and give appropriate legal advice and guidance.
Inquiry #7:
Lawyer Y is in private practice but he is under contract to provide legal representation to City. Are Lawyer Y's responsibilities relative to Rule 5.5(d) the same as the duties of Lawyer X?
Opinion #7:
Yes.
Inquiry #8:
Lawyer Q is a member of the Board of Directors of ABC Corporation. ABC Corporation plans to have an architect represent the corporation at a hearing on a petition for a variance that was filed by ABC.
Is Rule 5.5(d) applicable to the conduct of Lawyer Q as a board member?
Opinion #8:
As a member of the board, Lawyer Q may have a fiduciary duty to inform the board that a nonlawyer appearing in a representative capacity for a party may constitute illegal activity, including the unauthorized practice of law, and to vote against the corporation's participation in illegal activities. Lawyer Q does not, however, violate Rule 5.5(d) if he does not take any other action to prevent the corporation's practice of sending a nonlawyer to represent the corporation at the hearing on the variance petition. See, e.g., Opinion #2.