Authorized Practice Meeting Notes

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AUTHORIZED PRACTICE COMMITTEE
April 23, 2008

The Authorized Practice Committee met on Wednesday, April 23, 2008 at 2:00 p.m. in the Hannover I meeting room of the Sheraton Capital Centre hotel, Raleigh, North Carolina. Members of the Committee attending were Anthony S. di Santi, Chair; Joshua Willey, Jr, Vice-chair; Jr.; David N. Allen; Julius E. Banzet, III; Robert Bernhardt; John A. Bowman; W. Edward Bunch; John H. Byrd; William M. Claytor; Harry B. Crow; William F. Dowdy; R. Lee Farmer; Nancy S. Ferguson; Forrest A. Ferrell; J. Nick Fountain; Sidney J. Hassell, Jr.; F. Fincher Jarrell; David W. Long; Margaret McCreary; Joseph G. Maddrey; Mark W. Merritt; Steven H. Messick; William R. Purcell; Jimmy D. Reeves; Sally H. Scherer; John M. Silverstein; C. Christopher Smith; David W. Sumpter, III; G. Gray Wilson; Cynthia L. Wittmer; Lissa L. Broome; Marisa Campbell; Louise Paglen; Celia Pistolis; N. Lucille Siler; and Harriet F. Worley. Also attending were President Irvin W. “Hank” Hankins, III, President-elect John B. McMillan, Vice-President Barbara B. “Bonnie” Weyher, Past President Steve Michael, and Executive Director L. Thomas Lunsford, II. Staff counsel David Johnson and Fern Gunn Simeon, staff investigator Scott Perry, and staff assistant Lori Reams were present. Guests attending the meeting were Charles Rampenthal, R. Dennis Fairbanks, Neil J. Ruther, Jimmy B. Persels, Don Vaughn, Caroline Moineau, Abdullah Moineau, Don Lampe, and Ben Kuhn.

The Chair called the Committee to order at 2:04 p.m. The Chair informed the Committee members of their duty to avoid conflicts of interest and inquired of the members if anyone knew of any personal conflicts with respect to matters on the agenda in accordance the State Ethics Act. In accordance with the requirements of the act, the following members reported their recusals on these agenda items: Nancy Ferguson recused herself on agenda item 24, ServiceLink. Julius Banzet recused himself on agenda items 20 and 21, Jeh-Rol Associates and Brian Glover dba Tiaga, Inc. Robert Bernhardt recused himself on agenda item 17, Ross Gefland. Lucy Siler recused herself on agenda items 35 and 39, Marsha Cornelius and Vision Title.

While in open session the Committee took action by majority vote of the members present as follows:

A. Letters of Caution Issued:

1. 06AP0043 – Augusto Coccia. An out of state attorney employed by a debt relief business to provide “consulting” on the unauthorized legal services provided by the business to debtors with credit card debt problems.

2. 06AP0061 – Jeffrey McClure: Individual prepared a deed on behalf of a property owner to a "trust" as a means of representing the owner in negotiations to prevent foreclosure on the property.

3. 07AP0037 – National Association of Financial & Estate Planning: Utah business holds itself out as able to prepare legal documents for estate plans and the services of Utah attorneys to review the plans it generates.

4. 07AP0041 – Julie Moore: Self-proclaimed paralegal wrote a demand letter on behalf of a business using stationery that included the logo of an actual law firm even though she was not employed with the firm.

5. 07AP0093 – Ross Gelfand: Georgia attorney who handles debt collection matters advertises on his website that he can provide legal services to collect debts in North Carolina.

6. 06AP0013 – Robert Scott: Notary who called himself a "signing agent" allegedly answered legal questions and explained the documents related to a residential real estate loan closing.

7. 08AP0007 – Mba Mbulu: Son files an answer to a civil complaint against his mother.

8. 07AP0079 – Jeh-Rol Associates: Business prepares a deed between parties in a transaction in which it has no interest.

9. 07AP0078 – Brian Glover dba Taiga, Inc.: Respondent prepares deeds for unrelated parties.

10. 07AP0090 – Vivian Mason Knight: Respondent is alleged to have made a referral to an attorney for a contingency fee and to have prepared a power of attorney for another person.

11. 07AP0115 – Stataria Barr: Freelance paralegal states that she intends to provide services related to negotiations for insurance settlements and medical payments under insurance contracts directly to her clients without any attorney supervision.

12. 05AP0012 – Garner Settlement Company: Settlement company holds itself out on its webpage as able to provide legal services related to real estate closings.

13. 07AP0108 – Orus Barker: Individual with a power of attorney is alleged to be assisting a prisoner with legal pleadings.

14. 07AP0027 – CompleteCase.com: Website offers to prepare uncontested divorce pleadings for customers that are guaranteed to be legal and acceptable in the courts of North Carolina.

15. 06AP0082 – National Corporate Headquarters, Inc.: Nevada company offers to provide incorporation services over the internet.

B. Letters of Caution to Cease and Desist Issued:

16. 07AP0022 – Carolyn Sankar dba The Sankar Group: Individual advertises on craigslist and on a website as able to provide legal document preparation services.

17. 08AP0023 – Donna Bergeron: Inactive South Carolina attorney residing in North Carolina prepares and offeres to prepare estate planning documents for members of her church congregation.

18. 07AP0011 – LegalZoom.com: Respondent files articles of incorporation for others in North Carolina based on documents prepared by respondent after transcribing answers to a questionnaire presented on an internet website and offers other legal documents.

C. Letters of Caution to Cease & Desist with referral to the DA

19. 08AP0017 – Jeffery S. Robson: Law school graduate holds himself out as a licensed attorney and prepares wills and other legal documents for friends and parishoners at his church.

D. Complaints Dismissed:

20. 05AP0066 – Legal Advice Line, Inc.: Interstate law firm based in Maryland provides unbundled and virtual legal services through North Carolina attorneys to North Carolina clients by the internet.

21. 06AP0065 – Caroline Moineau: Respondent prepares and files immigration forms on behalf of others and advertises her services under "immigration attorneys" among other listings.

22. 07AP0102 – Pedro Elguera: Spanish language interpreter allegedly gave advice to three relatives to ask for asylum from the immigration authorities and prepared their applications with false information.

23. 05AP0071 – Michelle Riggs: Paralegal claims to have "won" a workers' compensation claim for a client in a cover letter for a job application.

24. 06AP0075 – Eric August dba America’s Title Agency: Settlement company advertised to employ a title searcher, but there is no evidence that one was employed or that the services were offered to others.

25. 06AP0002 – Marsha Cornelius: Lawyer's assistant is believed to be attempting to finalize estate accountings for the attorney's clients after the attorney died.

26. 07AP0029 – John LiVecchi, Jr.: Respondent is alleged to have held himself out as an attorney and collected a fee for negotiating a settlement of a business debt.

E. Files Closed with No Action:

28. 06AP0039 – Nicolas Garcia: Individual advertised a business to provide legal "help" in local Hispanic newspapers.

29. 06AP0068 – Jack McCole: CPA is alleged to prepare articles of incorporation for others.

30. 05AP0045 – Vision Title: Closed title insurance agency offered to provide title abstracting services and collected attorney's fees at closings.

31. 06AP0059 – John Pirola: Company employee allegedly leads others to believe he is an attorney while negotiating contracts for his employer.

32. 06AP0048 – Coastal Legal Recruiter: Employment recruiter advertises for a paralegal who can work with little or no supervision and in the absence of an attorney to handle real estate transactions.

F. Continued for Further Investigation

33. 06AP0043 – Gerald Collette. A paralegal who operates a business designed to provide debtors with credit card debt relief and offers to provide independent “paralegal” services to others on contract negotiations and federal agency appearances. Counsel was instructed to issue a subpoena compelling production of information about the operations of this business.

34. 06AP0026 & 07AP0047 – David Requa dba Landquest Title Corporation: Business advertises that it can provide real estate closing services, including title examination, the services of an attorney, and document preparation. Counsel was instructed to issue a subpoena compelling production of information about the operations of this business.

35. 06AP0064 – Professional Title & Settlement Services: Title insurance agent holds herself out as able to conduct closings, order a title search for lenders, and arrange for the preparation of legal documents for the parties.

36. 05AP0072 – ServiceLink: Business entity holds itself out to lenders as able to provide closing services and arranges for attorneys to provide the legal services. Counsel was asked to review concerns with new counsel for respondent.

37. 07AP0110 – American Home Closings: Title insurance agency holds itself out as capable of providing real estate closings and identified itself on HUD-1's as collecting fees for title searches and document preparation.

G. Prepaid Legal Plans

38. Retirement and Estate Planning Services – Committee voted to begin registration revocation procedures for failure to renew registration.

39. Community Estate Services – Committee voted to accept registration of the plan.

40. Ultimate Advisor (aka Express Counselor and LegalRx) – Committee voted to accept registration of the amended plan.

41. AOPA Legal Services Plan – Committee voted to accept registration of the amended plan.

42. Legal Resources Master Plan Contract – Committee voted to accept registration of the amended plan.

H. Other

The Committee went into closed session pursuant to N.C. Gen. Stat. § 143-318.11(a)(3) to receive advice of counsel on the status of issues involving complaints concerning real property settlement companies. The closed session began at 2:26 pm upon motion duly made and seconded and ended at 3:16 upon motion duly made and seconded. No actions were taken by the Committee in closed session.

The Committee voted to recommend to the Executive Committee that the State Bar seek injunctive relief in 08AP0001 – Mid-Atlantic Title. This matter involves a business that offers residential real estate closing services to lenders, including title search services and legal document document preparation services. The respondent had been issued a prior Letter of Caution.

The Committee received a copy of the injunction entered against P. Lee Clay. The Committee was also advised of recent sanctions entered by the Business Court against three California attorneys. The Committee accepted the information presented by counsel and no action was taken by the Committee with respect to these items.

There being no further matters before the Committee, the Committee adjourned at 4:31 p.m. on April 23, 2008.

MEETING AGENDA

AUTHORIZED PRACTICE COMMITTEE MEETING
Anthony S. di Santi., Chair
The Carolina Hotel, Pinehurst, North Carolina
Cardinal Ballroom
July 15, 2008
3:00 pm

Ethics Act Statement

It is your duty to avoid conflicts of interest and appearances of conflicts of interest in performing your duties as a member of the Authorized Practice Committee and North Carolina State Bar. Is any member of the Committee aware of any personal conflicts or appearances thereof with respect to the matters before this Committee today?

I. Full Committee Discussion Agenda

A. Prepaid Legal Plans

1. 08PP01 – Initial Registration of Medical Justice Plan

2. 02PP06 – Amendments to Pre-Paid Legal Services, Inc.

B. Investigation Complete – For Decision

3. Review of Advisory Opinion 2002-1

4. 08AP0013 – Sandy Clark: Non-attorney poses as attorney and uses the premise of selling pre paid legal plans to convince people to pay her substantially more than the premium for the prepaid plan to resolve immediate legal problems.

5. 08AP0037 – Robert Jolly: Individual running a debt elimination scheme is filing federal lawsuits on behalf of himself and the debtor after taking title to the debtor's property.

II. Consent Agenda

A. Letters of Caution

6. 08AP0044 – Form-A-Corp: Business offers to prepare and file articles of incorporation for others over the internet.

7. 07AP0075 – Larry Clark: CPA assisted in the preparation of articles of organization for business client.

8. 08AP0040 – James Davis dba The Review Case Research, LLC: “Paralegal” business in Alabama is soliciting business from North Carolina prisoners to provide “case” research services that are compared to services provided by lawyers.

9. 08AP0034 – Morgan Drexen: California based company is soliciting business in North Carolina for "debt settlement" on behalf of debtors by representing that it will provide the debtor with legal representation by a California law firm.

10. 08AP0035 – Vincent D. Howard: California attorney who permits a business entity that offers "debt relief" services to consumers to hold him out as the attorney for the debtor if they subscribe to the services of the business.

11. 08AP0036 – Damian J. Nassiri: California attorney who permits a business entity that offers "debt relief" services to consumers to hold him out as the attorney for the debtor if they subscribe to the services of the business.

12. 08AP0027 – Sherrie King dba King & Associates: Accountant maintains a website on which she offers to prepare articles of incorporation for non-profit organizations and advice on legal exposure for business owners.

13. 07AP0109 – Steve Dietz dba Church By-Laws: Minister offers to prepare articles of incorporation, applications for 501(c)(3) status, and bylaws that are based on biblical concepts for use by churches.

14. 08AP0032 – Ryan Graf: Individual advertises on Craigslist that he is able to prepare divorce "papers" for others for a fee.

15. 08AP0019 – Carolyn Cooke: California attorney residing in North Carolina attempts to provide legal services to a corporation as an independent contractor.

16. 07AP0103 – Chadra Law dba Law’s Speciality Group: Florida business prepares deeds for use in closing residential real estate transactions in North Carolina and shows a North Carolina attorney as the deed preparer without permission.

17. 07AP0122 – Robert Clarkson: Disbarred South Carolina attorney attempts to "intervene" pro se in his wife's domestic case with her former husband to represent the interests of his wife.

18. 08AP0010 – Robert Burris: Respondent sends a letter from his "law office" to the Virginia Attorney General on behalf of a prisoner who he calls his "client" threatening to take legal action on behalf of the prisoner.

19. 08AP0015 – S.D. "Scot" Scruta dba "Tyler & Scruta": Individual residing in Texas who is neither an attorney nor a collection agent sends a "pre-lien notice" to a couple in Charlotte in an effort to collect a purported debt of an equipment provider from a contractor engaged by the couple.

20. 08AP0033 – Rva Pendleton dba Carolina Judgment Recovery Services: Nonlawyer offers to collect judgments for judgment creditors for a contingency fee under a purported assignment of the judgment.

21. 08AP0003 – Jeffrey Segal dba Medical Justice Corp.: Company offers to provide doctors with a system to prevent frivilous malpractice claims and assist them with retaliatory lawsuits against patients and others who make such claims.

22. 08AP0002 – David McAndrews: New York attorney is attempting to collect North Carolina statutory penalties from alleged shoplifters in North Carolina for a North Carolina store.

B. Dismissal

23. 08AP0024 – Gerald Silver: California lawyer appears to have ghost-written pleadings for a California pro se defendant in a North Carolina business court proceeding.

24. 07AP0086 – William Ruickholdt: Respondent is alleged to have posed as an attorney and offered to file a small claims action on behalf of a member of the public.

25. 06AP0041 – Kahn & Associates: Out of state professional limited liability company that employs a North Carolina attorney fails to comply with the requirements for an interstate law firm.

26. 08AP0049 – Regina Bartholomew: In-house general counsel for a school system is not licensed in North Carolina, but is licensed in another state.

27. 07AP0114 – John Kledis: CPA is alleged to have offered to form a corporation for another.

C. No Action

28. 08AP0022 – Kenneth Martin: Respondent purports to have a power of attorney for another and tenders a note payable in 50 years to the county tax collector on behalf of the taxpayer along with a packet of documents purporting to challenge the legality of the debt for taxes.

29. 08AP0045 – Eric Lynch: Colorado resident files three frivilous complaints on behalf of a purported North Carolina resident who cannot be located.

D. Litigation Updates

30. American Family Prepaid Legal Services

31. Mid-Atlantic

Authorized Practice Advisory Opinion 2002-1

January 24, 2003

On the Role of Laypersons in the Consummation of Residential Real Estate Transactions

The North Carolina State Bar has been requested to interpret the North Carolina unauthorized practice of law statutes (N.C. Gen. Stat. §§84-2.1 to 84-5) as they apply to residential real estate transactions. The State Bar issues the following authorized practice of law advisory opinion pursuant to N.C. Gen. Stat. §84-37(f) after careful consideration and investigation. This opinion supersedes any prior opinions and decisions of any standing committee of the State Bar interpreting the unauthorized practice of law statutes to the extent those opinions and decisions are inconsistent with the conclusions expressed herein.

Issue 1:

May a nonlawyer handle a residential real estate closing for one or more of the parties to the transaction?

Opinion 1:

No. Residential real estate transactions typically involve several phases, including the following: abstraction of titles; application for title insurance policies, including title insurance policies that may incorporate tailored coverage; preparation of legal documents, such as deeds (in the case of a purchase transaction) and deeds of trust; explanation of documents implicating parties' legal rights, obligations, and options; resolution of possible clouds on title and issues concerning the legal rights of parties to the transaction; execution and acknowledgement of documents in compliance with legal mandates; recordation and cancellation of documents in accordance with North Carolina law; and disbursement of proceeds after legally-recognized funds are available. These and other functions are sometimes called, collectively, the "closing" of the residential real estate transaction. As detailed below, the North Carolina General Assembly has determined specifically that only persons who are licensed to practice law in the state may handle many of these functions.1

A person who is not licensed to practice law in North Carolina and is not working under the direct supervision of an active member of the State Bar may not perform functions or services that constitute the practice of law.2 For example, under the express language of N.C. Gen. Stat. §§ 84-2.1 and 84-4, a non-lawyer who is not working under the direct supervision of an active member of the State Bar would be engaged in the unauthorized practice of law if he or she performs any of the following functions for one or more of the parties to a residential real estate transaction: preparation or aiding in preparation of deeds, deeds of trust, or other legal documents; abstracting or passing upon titles; advising or giving an opinion upon the legal rights or obligations of any person, firm, or corporation; or holding himself or herself out as competent or qualified to give legal advice or counsel or as furnishing any services that constitute the practice of law.

Accordingly, a non-lawyer is engaged in the unauthorized practice of law if he or she performs any of the following functions in connection with a residential real estate closing (identified only as examples):

1. Abstracts or provides an opinion on title to real property;

2. Explains the legal status of title to real estate, the legal effect of anything found in the chain of title, or the legal effect of an item reported as an exception in a title insurance commitment except as necessary to underwrite a policy of insurance and except that a licensed title insurer, agency, or agent may explain an underwriting decision to an insured or prospective insured, including providing the reason for such decision;

3. Explains or gives advice about the rights or responsibilities of parties concerning matters disclosed by a land survey under circumstances that require the exercise of legal judgment or that have implications with respect to a party's legal rights or obligations;

4. Provides a legal opinion or advice in response to inquiries by any of the parties regarding legal rights or obligations of any person, firm, or corporation, including but not limited to the rights and obligations created by a promissory note, the effect of a pre-payment penalty, the rights of parties under a right of rescission, and the rights of a lender under a deed of trust;

5. Advises or instructs a party to the transaction with respect to alternative ways for taking title to the property or the legal consequences of taking title in a particular manner;

6. Drafts a legal document for a party to the transaction or assists a party in the completion of a legal document, or selects or assists a party in selecting a form legal document among several forms having different legal implications;

7. Explains or recommends a course of action to a party to the transaction under circumstances that require the exercise of legal judgment or that have implications with respect to the party's legal rights or obligations;

8. Attempts to settle or resolve a dispute between the parties to the transaction that will have implications with respect to their respective legal rights or obligations.

The foregoing list of examples of functions that constitute the practice of law is not exclusive, but reflects a range of responsibilities and duties that involve the following: the exercise of legal judgment; the preparation of legal documents such as deeds, deeds of trust, and title opinions; the explanation or interpretation of legal documents in circumstances that require the exercise of legal judgment; the provision of legal advice or opinions; and the performance of other services that constitute the practice of law.

Issue 2:

May a nonlawyer who is not acting under the supervision of a lawyer licensed in North Carolina (1) present and identify the documents necessary to complete a North Carolina residential real estate closing, direct the parties where to sign the documents, and ensure that the parties have properly executed the documents; and (2) receive and disburse the closing funds?

Opinion 2:

Yes. So long as a nonlawyer does not engage in any of the activities referenced in Opinion 1, or in other activities that likewise constitute the practice of law, a nonlawyer may: (1) present and identify the documents necessary to complete a North Carolina residential real estate closing, direct the parties where to sign the documents, and ensure that the parties have properly executed the documents; or (2) receive and disburse the closing funds.

Notwithstanding this opinion, evidence considered by the State Bar with respect to this advisory opinion indicates that, at the time documents are presented to the parties for execution, a lawyer who is present may identify or be asked about important issues affecting the legal rights or obligations of the parties. A lawyer may provide important legal guidance about such issues, but a nonlawyer is not permitted to do so. Moreover, a consumer's retention of a licensed North Carolina lawyer provides financial protection to the consumer. The North Carolina Rules of Professional Conduct require a lawyer to properly handle all fiduciary funds, including residential real estate closing proceeds. In the event a lawyer mishandles the closing proceeds, the lawyer is subject to professional discipline, and the State Bar Client Security Fund may provide financial assistance for a person injured by the lawyer's improper application of funds. On the whole, the evidence considered by the State Bar indicates that it is in the best interest of a consumer to be represented by a lawyer with respect to all aspects of a residential real estate transaction.

The evidence the State Bar has considered suggests, however, that performing administrative or ministerial activities in connection with the execution of residential real estate closing documents and the receipt and disbursement of the closing proceeds does not necessarily require the exercise of legal judgment or the giving of legal advice or opinions. Indeed, the execution of closing documents and the disbursement of closing proceeds may be accomplished-and often have been accomplished-by mail, by e-mail, or by other electronic means, or by some other procedure that would not involve the lawyer and the parties being physically present at one place and time. The State Bar therefore concludes that it should not be presumed that performing the task of overseeing the execution of residential real estate closing documents and receiving and disbursing closing proceeds necessarily involves giving legal advice or opinions or otherwise engaging in activities that constitute the practice of law.

Nonlawyers who undertake such responsibilities, and those who retain their services, should also be aware that (1) the North Carolina State Bar retains oversight authority concerning complaints about activities that constitute the unauthorized practice of law; and (2) the North Carolina criminal justice system may prosecute instances of the unauthorized practice of law. In addition, non-lawyers and consumers should bear in mind that other governmental authorities such as the Federal Trade Commission, the North Carolina Attorney General, district attorneys, and the banking commissioner, have jurisdiction over unfair trade practices and violations of requirements regarding lending practices.

Endnotes

1. Except as permitted under State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962), which allows a party having a "primary interest" in a transaction to prepare deeds of trust and other documents to effectuate the transaction.

2. The State Bar notes that the North Carolina General Assembly and Supreme Court are the entities that have the power to make the ultimate determination whether an activity constitutes the practice of law.

Authorized Practice Advisory Opinion 2006-1

October 20, 2006

Quasi-Judicial Hearings on Zoning and Land Use

Inquiry:

May a person who is not a lawyer appear before planning boards, boards of adjustment, or other governmental bodies conducting quasi-judicial hearings in a representative capacity for another party?

Opinion:

At its October 2005 meeting, the Authorized Practice Committee responded to an inquiry concerning the propriety of a person who is not a lawyer appearing before planning boards, boards of adjustment, and city and county government in a representative capacity. The committee's advisory opinion distinguished appearances on legislative concerns, such as general rezoning cases and ordinance amendments, from appearances on behalf of petitioners for special use permits and variances, which are quasi-judicial matters. The committee has received comments from a number of interested parties, including architects, land use planners, and city and county attorneys as a result of that opinion. The committee is issuing this advisory opinion to supplement the prior opinion.

First, the committee reiterates that the adoption of ordinances and amendments to official zoning maps (i.e. general rezoning cases) by the elected officials in city and county governments are legislative in nature and that any interested person may appear and speak on such matters before governmental bodies, even as representatives of groups or interested parties, without engaging in the unauthorized practice of law. Nonetheless, the general statutory prohibitions on unauthorized practice of law still apply even to persons who appear before governmental bodies on legislative matters. Non-lawyers may not hold themselves out as attorneys, provide legal services or advice, or draft any legal documents with regard to such matters. See N.C. Gen. Stat. §§ 84 2.1 and 4.

The law is clear that hearings on applications for special use permits and variances under zoning ordinances, as well as appeals from staff level interpretations related to permits, are quasi-judicial proceedings. N.C. Gen. Stat. §§ 153A-345 and 160A-381 and 388. See, Humble Oil & Refining Co. v. Bd. of Aldermen of Chapel Hill , 284 N.C. 458, 202 S.E.2d 129 (1974) and Woodhouse v. Board of Comm'rs of Nags Head , 299 N.C. 211, 261 S.E.2d 882 (1980). (For simplicity, the quasi-judicial hearings before these bodies are hereafter referenced to as a “variance hearing” unless the context indicates otherwise.) The governmental body before which the variance hearing is conducted sits in a judicial role of applying the standards of an ordinance to the particular circumstances of a particular party. Accordingly, the role of the governmental body is to receive evidence and make decisions based upon the evidence presented.

Variance hearings require the governmental body hearing the matter to observe certain formalities. Evidence, including witness evidence, is presented to the hearing body, although the Rules of Evidence need not be strictly observed. All witnesses before the body must be sworn and their testimony is subject to cross-examination. The hearing body has the power and authority to issue subpoenas to compel witness testimony. A record of the proceedings must be preserved. The decision is to be based upon the evidence presented at an open hearing, and not on extraneous matters or personal knowledge of the members of the board. The applicant has the burden of proof. The board must make written findings of fact to support its decision. And, the decision of the board is reviewable by the courts on appeal based solely upon the record of the proceedings.

The committee believes that the law is also 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 at a quasi-judicial proceeding is the practice of law. N.C. Gen. Stat. §§ 84 2.1 and 4. Consequently, because the variance hearings are by definition quasi-judicial proceedings, the committee concludes that it is the unauthorized practice of law for someone other than a licensed attorney to appear in a representative capacity to advocate the legal position of another person, firm, or corporation that is a party to the proceeding.

The committee has been urged to recognize that architects, landscape architects, land use planners, and engineers play a vital role at these quasi-judicial proceedings by presenting necessary facts and information on behalf of their clients at variance hearings. The committee agrees that the information these professionals can present is critical to the decision before the hearing body. These professionals are subject matter experts whose expert opinions, as witnesses, must be presented to the hearing body. They are witnesses who are in the best position to explain to the hearing body the facts of the proposed design and its anticipated effects on a variety of factors, including traffic, environment, and aesthetics, within the framework of matters properly under consideration at the variance hearing. The committee does not believe that the role of legal advocate by attorneys in quasi-judicial proceedings should interfere with or inhibit the role of non-lawyer professionals who speak as witnesses and present information at these quasi-judicial proceedings. In fact, their roles should be complementary.

It is axiomatic that the committee has no authority to amend or formulate exceptions to the statutes. In issuing an advisory opinion, it simply articulates how it believes a court would ultimately resolve the question for the guidance of the public. The committee cannot recognize or create exceptions to the law as expressed by the legislature and the courts. Further, we believe, as a practical matter, that effective representation of parties in variance hearings is becoming increasingly dependent upon legal advocacy of the rights of the parties with an eye toward compiling a supportable record in the event of an appeal. These are the skills an attorney provides. While it is true that many of these hearings involve routine and non-controversial matters, even questions about matters such as the height of residential fences may become the subject matter of an appeal where the appellate courts may only consider the record produced at the variance hearing. See Robertson v. Zoning Board of Adjustment for the City of Charlotte , 167 N.C. App. 531, 605 S.E.2d 723 (2004). It is difficult to predict in advance when a matter may require a comprehensive record for appellate purposes. Therefore, with this further elaboration, the committee re-affirms its initial opinion expressed by letter dated October 31, 2005, that the representation of another person at a quasi-judicial hearing is the practice of law.

That said, this opinion should not be interpreted to diminish the role and expertise of land use professionals as witnesses at variance hearings. These professionals may still present their evidence in support of the position of their clients. However, they may not examine or cross-examine other witnesses or advocate the legal position of their clients.

The committee's opinion is also 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 committee understands is the proper, current practice and role of the planning staff. Further, nothing in this opinion should be interpreted as limiting the ability of a corporate officer or employee from testifying on factual matters on behalf of a corporate party during a hearing or suggesting that individual parties may not represent themselves before these boards.

In sum, the committee is of the opinion that land use professionals, including architects, engineers, and land use planners, may appear and testify as to factual matters and any expert opinions that they are qualified to present at quasi-judicial proceedings, but the presentation of other evidence, including the examination and cross-examination of witnesses, making legal arguments, and the advocacy for results on behalf of others before quasi-judicial zoning and land use hearings, is the practice of law that may be performed only by licensed attorneys at law.