Can a non-lawyer who is the sole owner of an LLC represent that LLC in West Virginia circuit court collections cases?

Official title

Opinion of the Attorney General's Office Regarding the Authority of Unlicensed Individuals to Practice Law in West Virginia Circuit Courts on Behalf of Limited Liability Companies

Plain-English summary

A non-lawyer wrote to the West Virginia State Bar's Unauthorized Practice of Law Committee with an open question. He wanted to buy an LLC, become its sole member, and routinely represent the LLC in West Virginia circuit court collections suits, where the dollar amounts exceeded magistrate court's monetary jurisdictional ceiling. He pointed to W. Va. Code § 50-4-4a, which allows a "party" to be represented by an "agent" in magistrate court, and asked whether the same logic would let him appear in circuit court for the LLC. The State Bar passed the question to the AG.

The answer was no. West Virginia, like most states, treats representation in courts of record as the practice of law. W. Va. Trial Ct. R. 4.03 requires every party to be represented by a licensed attorney unless appearing pro se. W. Va. Code § 30-2-4 makes it unlawful for any natural person to "practice or appear as an attorney-at-law for another in a court of record" without a West Virginia license. The "for another" language matters. A non-lawyer can appear pro se to defend his own personal interest, but he cannot appear for someone else.

A corporation has long been treated as "someone else" for these purposes. West Virginia State Bar v. Earley (1959) held that a non-lawyer cannot appear for a corporation in a court of record. The reason: a corporation is "an artificial entity created by law" that can act only through agents, and a non-lawyer agent's lack of legal expertise threatens "the continuity, clarity and adversity which the judicial process demands" (Shenandoah Sales).

The AG saw no reason an LLC would be treated differently. § 31B-2-201 says an LLC is "a legal entity distinct from its members." Federal and state courts across the country have applied the same rule (Lattanzio v. COMTA in the Second Circuit; Hagerman in the Seventh Circuit; Collier v. Cobalt in the Eastern District of Louisiana). A non-lawyer trying to represent an LLC is not appearing pro se; the LLC is a separate legal person, and the non-lawyer is acting as its agent.

§ 50-4-4a is a narrow magistrate-court-only exception. The Supreme Court of Appeals in State ex rel. Frieson v. Isner read it to cover "isolated or casual appearance[s] by a non-lawyer friend or relative" assisting a self-representing party. Shenandoah Sales held that the section "authorizes a party to appear by a lay agent in magistrate court, not a court of record." The Court's view in Shenandoah was even more emphatic: any statute purporting to let a corporate non-lawyer act as agent in circuit court would violate the Court's "inherent and constitutional authority to define, regulate and control the practice of law."

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why does West Virginia restrict who can appear in court?

A: The reason West Virginia State Bar v. Earley gave is to ensure that representation meets a minimum standard so a party's rights are not "jeopardized or sacrificed by counsel and advice of unlicensed and incompetent persons." The licensing requirement is a consumer-protection rule for the legal services market, not a guild restriction.

Q: Can the sole member of a single-member LLC at least appear in magistrate court?

A: § 50-4-4a allows lay agents in magistrate court for both natural and artificial parties, but the Supreme Court of Appeals has read the lay-agent exception narrowly even there. Frieson v. Isner described "isolated or casual appearance[s] by a non-lawyer friend or relative." The opinion does not address whether the sole member of an LLC can routinely appear in magistrate court using the lay-agent exception, but the Frieson framing suggests routine representation is not what the legislature contemplated.

Q: What is the difference between magistrate court and circuit court for these purposes?

A: Magistrate court is West Virginia's court of limited jurisdiction (small claims, lower-dollar civil matters, misdemeanors). Circuit court is the trial court of general jurisdiction (large civil cases, felonies, family court, appeals from magistrate). § 50-4-4a applies only to magistrate court. Once a case is in circuit court, only a licensed attorney or a self-representing natural party can appear.

Q: Does an LLC have any way to handle small collections matters cost-effectively?

A: It can use magistrate court for cases below the monetary ceiling and rely on the lay-agent provision (subject to the narrow Frieson reading). For cases above that ceiling, the LLC must hire a lawyer. Collections-focused law firms exist precisely because of this structural feature.

Q: Is this rule unique to West Virginia?

A: No. The AG cited federal cases applying the same rule under federal procedure (Lattanzio in the Second Circuit, Hagerman in the Seventh Circuit) and a Louisiana federal case (Collier v. Cobalt). A West Virginia practice treatise (J. William Callison & Maureen A. Sullivan, Ltd. Liability Co.) collected national authority. The "overwhelming majority" rule is that a non-attorney cannot appear in court for an LLC.

Q: Could the legislature change this by statute?

A: Not without running into separation-of-powers limits. The Supreme Court of Appeals' Shenandoah Sales decision said that a statute purporting to allow non-lawyer corporate agents to engage in the practice of law in circuit court would violate the Court's "inherent and constitutional authority to define, regulate and control the practice of law." So a statute cannot displace the Court's role in setting the bar's licensure rules.

Q: What about appearance by a corporate officer who happens to be a lawyer in another state?

A: That is the unauthorized-practice-of-law question generally, governed by W. Va. Code § 30-2-4 and the Bar's pro hac vice procedures. A non-West-Virginia-licensed lawyer must seek pro hac vice admission or local counsel. The opinion did not address that scenario specifically because the question concerned a pure non-lawyer, but the framework applies: a corporate officer's profession in another jurisdiction does not by itself authorize practice in West Virginia.

Background and statutory framework

The licensing rule. W. Va. Code § 30-2-4: "[i]t shall be unlawful for any natural person to practice or appear as an attorney-at-law for another in a court of record in this state . . . without first having been duly and regularly licensed and admitted to practice law in a court of record of this state." W. Va. Trial Ct. R. 4.03 mirrors the requirement at the rule level. The exception is for a party appearing on his own behalf (pro se).

The corporate exception. West Virginia State Bar v. Earley, 144 W. Va. 504 (1959), held that the rule applies to corporations: a corporation can act only through agents, and the agent must be a licensed attorney to appear in a court of record. Shenandoah Sales & Service, Inc. v. Assessor of Jefferson County, 228 W. Va. 762 (2012), reiterated that "it is a well-settled legal principle that a corporation must be represented by a lawyer in a court of record."

The LLC question. The Supreme Court of Appeals had not directly decided whether the rule applies to LLCs at the time of the opinion. The AG inferred that it would. § 31B-2-201 defines an LLC as "a legal entity distinct from its members," which puts it in the same artificial-entity category as a corporation. Federal courts have applied the rule to LLCs in Lattanzio v. COMTA (2d Cir.), United States v. Hagerman (7th Cir.), and Collier v. Cobalt (E.D. La.).

The magistrate-court exception. § 50-4-4a: "Any party to a civil action in a magistrate court may appear and conduct such action in person, by agent or by attorney. Appearance by an agent or attorney shall have the same effect as appearance by the party represented, and the appearance by an agent shall not constitute the unlawful practice of law." Frieson v. Isner read it narrowly: "isolated or casual appearance by a non-lawyer friend or relative of a party . . . for the purpose of assisting such party in representing himself."

The separation-of-powers limit. Shenandoah Sales noted that any statute purporting to authorize non-lawyer corporate agents to appear in circuit court would conflict with the Supreme Court of Appeals' "inherent and constitutional authority to define, regulate and control the practice of law." So the magistrate-court provision is a narrow legislative carve-out the Court has tolerated, but it cannot extend to courts of record.

Application. A non-lawyer LLC member cannot represent the LLC in circuit court. § 50-4-4a does not extend to circuit court. The LLC must retain counsel or be represented by a licensed attorney member.

Citations

• W. Va. Code § 5-3-1 (AG written opinions)
• W. Va. Code § 30-2-4 (unauthorized practice)
• W. Va. Code § 50-4-4a (magistrate court lay agents)
• W. Va. Code § 31B-2-201 (LLC entity status)
• W. Va. Trial Ct. R. 4.03
• West Virginia State Bar v. Earley, 144 W. Va. 504, 109 S.E.2d 420 (1959)
• Shenandoah Sales & Service, Inc. v. Assessor of Jefferson County, 228 W. Va. 762, 724 S.E.2d 733 (2012)
• State ex rel. Frieson v. Isner, 168 W. Va. 758, 285 S.E.2d 641 (1981)
• Lattanzio v. COMTA, 481 F.3d 137 (2d Cir. 2007)
• United States v. Hagerman, 545 F.3d 579 (7th Cir. 2008)
• Collier v. Cobalt, LLC, 2002 WL 726640 (E.D. La. 2002)
• State ex rel. Western Parks, Inc. v. Bartholomew County Court, 383 N.E.2d 290 (Ind. 1978)
• J. William Callison & Maureen A. Sullivan, Ltd. Liability Co. § 1:1 n. 6 (2013)

Source

• Landing page: https://ago.wv.gov/media/18016/download?inline
• Original PDF: https://ago.wv.gov/media/18016/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General
(304) 558-2021
Fax (304) 558-0410

May 6, 2014

Ms. Anita R. Casey
Executive Director
The West Virginia State Bar
2000 Deitrick Boulevard
Charleston, WV 25311

Dear Ms. Casey,

You have asked for an Opinion of the Attorney General pertaining to the authority of unlicensed individuals to practice law in West Virginia Circuit Courts on behalf of limited liability companies ("LLCs"). This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advice upon questions of law . . . whenever required to do so, in writing, by . . . [a] state officer, board or commission." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your letter to the Attorney General's Office.

You explain that your Unlawful Practice of Law Committee has received an inquiry from an unlicensed attorney who wishes to purchase an LLC, serve as its sole member, and routinely represent that LLC in suits to collect on accounts of the LLC in matters in West Virginia Circuit Courts, when the matters at issue exceed the monetary jurisdictional ceiling for magistrate courts.

Your letter raises the following legal question:

Does the exemption of West Virginia Code § 50-4-4a, which permits a party to be represented by an "agent" in magistrate court proceedings, permit a non-lawyer to represent an LLC in Circuit Court?

West Virginia has adopted the well-accepted rule that only an attorney licensed to practice law can practice law in a court of record, except in cases where a person is appearing on his own behalf (pro se). See W. Va. Trial Ct. R. 4.03 ("Every party to proceedings before any court, except parties appearing pro se, shall be represented by a person admitted to practice before the Supreme Court of Appeals of West Virginia and in good standing as a member of its bar."); accord W. Va. Code § 30-2-4 ("[i]t shall be unlawful for any natural person to practice or appear as an attorney-at-law for another in a court of record in this state . . . without first having been duly and regularly licensed and admitted to practice law in a court of record of this state"). As our Supreme Court of Appeals has explained, "[t]he reason for the requirement that the practice of law be engaged in only by duly licensed practitioners of the law is to establish and maintain a legal standard by which the rights of persons may not be jeopardized or sacrificed by counsel and advice of unlicensed and incompetent persons." West Virginia State Bar v. Earley, 144 W. Va. 504, 528, 109 S.E.2d 420, 435 (1959).

Consistent with this principle, the Supreme Court of Appeals has long held that a non-licensed person may not appear in a court of record on behalf of a corporation. See West Virginia State Bar v. Earley, 144 W. Va. 504, 526-527, 109 S.E.2d 420, 435 (1959). The harms that such a person might cause are no different than when a corporation is not involved. Like any other non-lawyer, a "non-lawyer corporate agent's lack of legal expertise could 'frustrate the continuity, clarity and adversity which the judicial process demands.'" Shenandoah Sales & Service, Inc. v. Assessor of Jefferson County, 228 W. Va. 762, 766, 724 S.E.2d 733, 737 (2012) (quoting State ex rel. Western Parks, Inc. v. Bartholomew County Court, 383 N.E.2d 290, 293 (Ind. 1978)). Nor is there any argument that such a person falls within the exception for unlicensed pro se representation. The person is appearing not on his own behalf, but rather as an agent of the corporation, which is "an artificial entity created by law" that can only act "through an agent or representative." Id. at 767, 724 S.E.2d at 738; see also id. at 766, 724 S.E.2d at 737 ("it is a well-settled legal principle that a corporation must be represented by a lawyer in a court of record").

While the Supreme Court of Appeals has not had occasion to consider whether a non-attorney may appear in a court of record on behalf of an LLC, we have no reason to doubt that the Court would find such an appearance impermissible. The risks presented by a non-lawyer representative of an LLC are similar, if not the same as, those presented by a non-lawyer corporate agent. Moreover, there is likewise no argument that such a person is engaged in pro se representation. An LLC, no less than a corporation, is an artificial legal entity. See W. Va. Code § 31B-2-201 (defining an LLC as a "legal entity distinct from its members"). Thus, a person seeking to represent the LLC in court would not be acting on his own behalf, but rather as an agent of the LLC. Notably, the overwhelming majority of cases outside of West Virginia hold that a non-attorney may not appear in court on behalf of an LLC. See Lattanzio v. COMTA, 481 F.3d 137 (2d Cir. 2007) (per curiam); United States v. Hagerman, 545 F.3d 579 (7th Cir. 2008); Collier v. Cobalt, LLC, No. Civ. A. 01-2007, 2002 WL 726640, at *1 (E.D. La. 2002) ("Whether the LLC is characterized as a corporation, a partnership, or a hybrid, it may only appear in court through counsel."); J. William Callison & Maureen A. Sullivan, Ltd. Liability Co. § 1:1, n. 6 (2013) (collecting cases).

You ask whether West Virginia Code § 50-4-4a creates an exception to this rule for a non-lawyer to represent an LLC in a West Virginia Circuit Court. That law provides: "Any party to a civil action in a magistrate court may appear and conduct such action in person, by agent or by attorney. Appearance by an agent or attorney shall have the same effect as appearance by the party represented, and the appearance by an agent shall not constitute the unlawful practice of law." Id. (emphasis added). The Supreme Court of Appeals has construed this provision narrowly to permit an "isolated or casual appearance by a non-lawyer friend or relative of a party to proceedings in magistrate courts for the purpose of assisting such party in representing himself in the litigation." State ex rel. Frieson v. Isner, 168 W. Va. 758, 778, 285 S.E.2d 641, 654 (1981).

We agree with the Unlawful Practice Committee that Section 50-4-4a has no application to the facts as presented. By its plain terms, this provision "authorizes a party to appear by a lay agent in magistrate court, not a court of record," such as a Circuit Court. Shenandoah Sales, 228 W. Va. at 770, 724 S.E.2d at 741. This distinction is significant. Where a statute has sought to permit a non-natural person such as a corporation "to retain a non-lawyer representative to act as an agent on their behalf and engage in activities which constitute the practice of law in a circuit court," the Supreme Court of Appeals has found the law to be a violation of the Court's "inherent and constitutional authority to define, regulate and control the practice of law." Id. Accordingly, we conclude that Section 50-4-4a does not permit an LLC member not licensed to practice law in West Virginia to appear in a West Virginia Circuit Court on the LLC's behalf.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Misha Tseytlin
Deputy Attorney General