Authorized Practice Meeting Notes

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AUTHORIZED PRACTICE COMMITTEE
January 13, 2010

The Authorized Practice Committee met on Wednesday, January 13, 2010 at 2:30 p.m. in the University meeting room of the Marriott Raleigh City Center, Raleigh, North Carolina. Members of the Committee attending were Joshua W. Willey, Jr., Chair; David W. Long, Vice-Chair; Julius E. Banzet, III; Robert J. Bernhardt; John A. Bowman; W. Edward Bunch; Barbara Christy; Harry B. Crow; Nick J. Dombalis, II; Forrest A. Ferrell; Nick Fountain; Howard L. Gum; Sidney J. Hassell, Jr.; F. Fincher Jarrell; Margaret McCreary; Joseph G. Maddrey; Steven H. Messick; Lonnie Player; William R. Purcell; Jimmy D. Reeves; Michael Robinson; Sally H. Scherer; C. Christopher Smith; Marvin Sparrow; David W. Sumpter, III; Cynthia L. Wittmer; Lissa L. Broome; Celia Pistolis, Lucy Siler, Camille Stell, and Harriet Worley. Also attending were staff counsel David Johnson and Fern Gunn Simeon, staff investigator Scott Perry, and staff assistant Lori Reams. Guests attending the meeting were Ben Kuhn, A. P. Carlton, Emily Porter, Steve Monks, Pat Monks, Doug Brocker and Peggy Kane.

The Chair called the Committee to order at 2:38 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:

· Harriet Worely: 09AP0031 – HomeSavers Rescue Group; 09AP0032 – Jared Beschel; 09AP0075 – Solution Processing; 09AP0076 – Craig M. Laverty; 09AP0085 – Neil Singer dba Infinity Funding Group and 09AP0086 – Richard Rubin

· Lucy Siler: 09AP0030 – Keith Speer dba Slate Title Group

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

A. Letters of Caution Issued

1. 09AP0016 – JustAnswer: Website allows customers to ask lawyers legal questions for a fee that is split with the lawyer.

2. 09AP0033 – DirectIncorporation.com: Web based incorporation service offers to prepare and file articles of incorporaton in North Carolina.

3. 09AP0042 – VR Tech Marketing: Respondent offers an online estate planning document preparation service.

4. 08AP0107 – Disability Group, Incorporated: Out of state corporation offers to provide social security representation for North Carolina residents through attorneys employed by the corporation in California.

5. 09AP0031 – HomeSavers Rescue Group: Out of state entity solicits customers for loan modifications by offering the legal services of an out of state lawyer.

6. 09AP0032 – Jared Beschel: Out of state lawyer allows nonlawyer marketing company to solicit for loan modification clients in North Carolina.

7. 09AP0006 – Janine Afamian dba Premier Title & Escrow Co., Inc.: Rhode Island attorney operating a real estate title insurance agency prepares a deed in North Carolina.

8. 09AP0013 – United Defense Group, LLP: California law firm offers to provide criminal defense services nationwide and accepted clients from North Carolina.

9. 09AP0060 – Martin J. Mendoza: California attorney seeks to find North Carolina lawyers willing to prepare pro se court pleadings and legal documents for a California corporation that holds itself out as able to provide services in domestic law matters.

10. 09AP0040 – Closeline: Out of state title insurance agency is conducting real estate closings in North Carolina.

11. 09AP0053 – Title Source: Out of state title company is identified on the HUD-1 as providing the title examination for a North Carolina closing and holds itself out to lenders as able to conduct closings, including the preparation of documents and clearing title.

12. 09AP0045 – Transcontinental Title: Out of state title company offers to provide real estate closing services to lenders in North Carolina.

13. 08AP0102 – Realty Title Settlement Services: Title insurance agency attempts to provide closing services on North Carolina residential real estate transactions.

14. 09AP0086 – Richard Rubin: Out of state attorney is held out by a loan modification marketing company as providing services to potential customers.

15. 09AP0093 – Phillips, Davis & Assoc., Inc.: Out of state company solicits defendants in lawsuits to negotiate settlements.

B. Letter of Caution to Cease and Desist

1. 09AP0021 – Jerome S. Lamet: Illinois attorney holds himself out, using a trade name, as able to provide legal services to protect those on Social Security from debt collection claims. The Committee also voted to refer the matter to the Illinois disciplinary authority.

2. 09AP0038 – Lotty Uriarte: Notary public advertises on buisness card as able to handle traffic tickets, immigration services, and services of a lawyer.

3. 09AP0075 – Solution Processing: Out of state firm offers to provide attorney representation for loan modification services.

4. 09AP0076 – Craig M. Laverty: Out of state attorney offers to provide debt adjusting/loan modification services in North Carolina through a third party marketing firm.

5. 09AP0085 – Neil Singer dba Infinity Funding Group: Out of state firm promoting loan modifications markets based on providing a “team of attorneys” to distressed homeowners.

C. Complaints Dismissed

1. 09AP0018 – James R. Montgomery: Out of state attorney prepares and records a single deed for North Carolina property for a client from his state of licensure related to preparation of a trust under the law of his state of licensure.

2. 09AP0096 – Melissa Ford: Out of state attorney prepares and files articles of organization as organizer for a new North Carolina limited liability company on behalf of a client from her home jurisdiction.

3. 09AP0097 – Roderick Morgan: Out of state attorney prepares and files articles of organization as organizer for a new North Carolina limited liability company on behalf of a client from his home jurisdiction.

D. Files Continued

1. 07AP0050 – East Coast Real Estate Services, LLC: Respondent operates a business that provides title searches and abstracts related to residential real estate closings.

E. Prepaid Legal Plans

1. Estate Defender Plan was withdrawn.

2. The Committee accepted the registration of Phoenix Prepaid Legal Plan as a prepaid legal service plan.

3. The Committee accepted the registration of TrafficStop, LLC as a prepaid legal service plan, with the proviso that it not cover pre-existing conditions and that its marketing materials not included misleading claims about the service.

F. Other

1. 09AP0030 – Keith Speer dba Slate Title Group: Title insurance agent allegedly is conducting the title examinations, preparing deeds, and conducting closings for real estate transactions. The Committee went into closed session pursuant to G.S. 143-138.11(3) to consult with counsel about potential litigation at 4:25 p.m. The Committee returned to open session at 4:28 pm. While in open session, the Committee voted to recommend to the Executive Committee that the State Bar seek an injunction against further activity by Speer.

2. 10AP0001 – Inquiry: Inquiry from a member of the legislature about the legislative intent concerning the notice required under the homeowner’s association statutes related to deliquent assessments. The Committee voted to have its counsel provide an informal response to the inquiry rather than an advisory opinion.

There being no further matters before the Committee, the Committee adjourned at 4:55 p.m. on January 13, 2010.

MEETING AGENDA

AUTHORIZED PRACTICE COMMITTEE MEETING
Joshua W. Willey, Jr., Chair
Raleigh Marriott City Center Hotel
April 14, 2010

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. Initial registration of State Employees Association of North Carolina

2. Initial registration of Estate Defender Plan

3. Initial registration of WILLPLAN

B. Investigation Complete – For Decision

4. 10AP0007 – Darius M. Little: Individual holds himself out as working for a lawfirm and takes fees to handle contract negotiations and a medical malpractice claim.

5. 09AP0084 – Douglas Moditz: Nonlawyer “paralegal” service offers to prepare legal documents and provide legal research for the general public.

6. 09AP0095 – Lillian R. Villanova: Disbarred out of state attorney attempts to prosecute a “pro se” complaint on behalf of a business entity that she purchased just before filing suit.

7. 09AP0092 – Steven Glenn Johnson: Individual tries to stop foreclosures for others by transferring the property to a “trust” for which he names himself as trustee.

8. 09AP0089 – Victor W. Luke: Out of state law firm employs a North Carolina attorney who signs a court pleading filed on behalf of a client in the name of the firm.

9. 09AP0071 – Consumer Law Associates: Out of state law firm based in Maryland offers to provide debt adjusting services in North Carolina through North Carolina attorneys.

II Consent Agenda

A. Letters of Caution

10. 09AP0073 – Lee Sutphin: South Carolina accountant prepares and files articles of incorporation for 2 North Carolina corporations for North Carolina residents.

11. 10AP0014 – Gary Gleason: Disgruntled client forms a corporation that offers to support and provide legal services allowing others to sue a law firm.

12. 09AP0081 – James Farley dba Bay View Law Group: Out of state law firm holds itself out as able to provide debt “relief” services in North Carolina through respondent as its lead attorney.

13. 09AP0100 – Thomas Hutchison dba About the Children: Nonlawyer running an out of state business that holds itself out as able to advise litigants in child support and custody matters as well as prepare legal pleadings for pro se representation.

14. 10AP0002 – William H. Brown: Out of state attorney sends a demand letter on behalf of a North Carolina resident to her former North Carolina employer concerning the final paycheck under threat of pursuing legal action in North Carolina.

15. 10AP0003 – Justin Weatherly: Out of state attorney sends a demand letter on behalf of a North Carolina company with business locations only in North Carolina on a North Carolina landlord/tenant dispute.

16. 10AP0036 – Victoria Godwin: Sales person for a car dealership has the title “Open Chapter 7 Specialist” and promotes to bankruptcy debtors a car financing plan as better than reaffirmation of debt in bankruptcy.

17. 07AP0050 – East Coast Real Estate Services, LLC: Respondent operates a business that states that it provides title searches and abstracts related to residential real estate closings.

18. 10AP0010 – Steele T. Williams: Out of state attorney appears to have prepared court pleadings for filing by his clients pro se in a North Carolina lawsuit.

19. 10AP0006 – Donnie T. Simmons: Individual with a law degree, but not licensed, attempts to represent a family member on a personal injury claim with the corporate claims department for a fast food restaurant.

20. 09AP0072 – Melody Brown: Daughter poses as an attorney in an effort to help her father with a dispute with a lender over repossession of the father’s car.

21. 10AP0011 – Kevin G. Mickle: Accountant sends a collection of account letter on behalf of another party using a fictitious firm name.

22. 10AP0004 – Jeff Halpern: Out of state party attempts to intervene and negotiate a mortgage modification after foreclosure has been filed.

23. 10AP0005 – Andrew J. Burke: Out of state attorney living in North Carolina calls opposing counsel in a child custody dispute on behalf of the party.

24. 10AP0026 – J. Michael Gassaway: Disbarred Oklahoma attorney informs opposing party in a collection matter that he is with the “Gassaway Law Firm.”

25. 10AP0039 – George A. Watson, III: Displaced Louisiana attorney living in North Carolina attempts to represent a North Carolina friend in the defense of a red light camera violation.

26. 10AP0027 – TZI LLC: Two notaries public advertise to the public that they can provide “closing” services to borrowers, including the provision of attorneys for such closings.

27. 08AP0112 – Lender Processing Services: Respondent holds itself out to mortgage lenders as able to conduct residential real estate closings and arranges for legal services related to closings in North Carolina.

28. 08AP0029 – Accurate Group: Respondent advertises that it can provide services in connection with real estate closings that constitute legal services.

29. 09AP0078 – Secured Lending Services: Out of state company offers to provide title and settlement services.

B. Dismissal

30. 10AP0013 – Joe Monfort: Paralegal is accused of acting independently without supervision by the opposing party based on requests for property or documents during telephone conversations.

31. 09AP0090 – Mary Ann Ritchie dba Family Estate Services: Proprietor of a prepaid business plan did not clearly state on marketing materials that she was operating a prepaid plan and not personally providing the legal services.

C. No Action

32. 09AP0058 – K. Anderson Nelms: Our of state attorney operating a consumer debt adjusting business that was enjoined from further activity in attorney’s home state and attorney was suspended from the practice.

33. 09AP0054 – Bradlie Carldwell: Individual, who can no longer be found, held himself out as an attorney and collected a fee to represent another on a traffic court matter.

D. Litigation Updates

34. Mid-Atlantic

35. Dianne Carter

36. Eric Darden

37. Slate Title

E. Information Items

38. LegalZoom

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.