What must a city attorney or a lawyer serving as an elected official do when a nonlawyer appears in a representative capacity at a zoning variance hearing?

Plain-English summary

The opinion builds on Authorized Practice Advisory Opinion 2006-1, which held that appearing in a representative capacity for a party at a quasi-judicial zoning or land-use hearing (presenting evidence through others, cross-examining witnesses, and arguing the law) is the practice of law and is limited to active members of the State Bar. The question is what duty Rule 5.5(d), which prohibits a lawyer from assisting another person in the unauthorized practice of law, imposes on the various lawyers involved when a nonlawyer such as an architect or engineer appears for a petitioner.

For a lawyer who advises the city council, the opinion concludes that as soon as the lawyer determines a nonlawyer is appearing in a representative capacity, the lawyer must inform the council of the holding in Advisory Opinion 2006-1 and advise on its legal implications; if the council decides to proceed anyway, the lawyer may continue to advise the members on any matter that arises during the rest of the hearing.

For a lawyer serving as an elected member of the governing body, the opinion concludes Rule 5.5(d) usually applies to a lawyer acting in her capacity as a lawyer, not to conduct as an elected official. A lawyer-councilmember does not "assist" unauthorized practice if she decides it is her duty as an elected official to sit on the hearing panel even though a nonlawyer represents the petitioner. She is therefore not required to bar nonlawyers from appearing, not required to vote against a motion permitting the nonlawyer, and not required to object or recuse. The opinion adds that if she concludes the activity is illegal, she may have a fiduciary duty as an elected official to vote against the motion.

For a lawyer who represents the city as an employee or under contract, the committee expresses no opinion on whether a planning-department nonlawyer's appearance is itself unauthorized practice, because Advisory Opinion 2006-1 does not affect planning staff presenting factual information and qualified opinions. But if the nonlawyer appears in a representative capacity rather than merely presenting facts, and that is unauthorized practice, the lawyer may not assist (for example by preparing the nonlawyer's presentation or evidence) and should advise the city administration of the ruling. The same duties apply to a lawyer who is a corporate board member whose company plans to send a nonlawyer to a variance hearing: a fiduciary duty to inform the board and vote against illegal activity, but no Rule 5.5(d) violation for taking no further action.

In practice

Under the North Carolina rule as it stood at the time of the opinion, the analysis turns on the lawyer's capacity. The opinion holds that a lawyer acting as counsel to a government body or corporation triggers the Rule 5.5(d) duty not to assist unauthorized practice and must flag Advisory Opinion 2006-1 to the client, while a lawyer acting as an elected official or board member is governed by fiduciary duties rather than Rule 5.5(d) when participating in the body's decision.

Per the opinion, a lawyer who is counsel to the city may continue to advise the council after raising the issue, and a lawyer who represents the city may not prepare or assist with a nonlawyer's representative presentation if that presentation is unauthorized practice. The committee declined to decide whether a planning-staff nonlawyer's appearance is itself unauthorized practice.

Common questions

Q: A nonlawyer is representing a party at a zoning variance hearing. What must the city attorney do?

A: As soon as the city attorney (counsel to the council) realizes a nonlawyer is appearing in a representative capacity, the opinion concludes the attorney must inform the council of the holding in Authorized Practice Advisory Opinion 2006-1 and advise on its legal implications. If the council proceeds anyway, the attorney may keep advising it.

Q: Does a lawyer who serves as an elected councilmember violate Rule 5.5(d) by sitting on a hearing where a nonlawyer represents a party?

A: No. The opinion concludes Rule 5.5(d) applies to a lawyer acting as a lawyer, and a lawyer-councilmember who decides it is her official duty to serve on the panel does not "assist" unauthorized practice.

Q: Must the lawyer-councilmember vote against letting the nonlawyer appear, or recuse herself?

A: No on both. The opinion concludes she is not required to vote against the motion or to recuse, though if she concludes the conduct is illegal she may have a fiduciary duty as an elected official to vote against it.

Q: Can a lawyer who represents the city help the planning department's nonlawyer employee prepare for the hearing?

A: Only if that appearance is not unauthorized practice. The opinion declines to decide whether the planning staff's appearance is unauthorized practice, but holds that if it is a representative appearance amounting to unauthorized practice, the lawyer may not assist, including by preparing the nonlawyer's presentation or evidence, and should advise the city administration of the ruling.

Background and rules framework

The opinion applies North Carolina Rule 5.5(d) (a lawyer shall not assist another person in the unauthorized practice of law), which tracks Model Rule 5.5, against the backdrop of Authorized Practice Advisory Opinion 2006-1 and N.C. Gen. Stat. §§ 84-2.1 and 84-4 (defining the practice of law and restricting it to licensed lawyers). The opinion distinguishes between a lawyer acting in a professional capacity, to whom Rule 5.5(d) applies, and a lawyer acting as an elected official or board member, whose participation is governed by fiduciary duty.

Citations and references

Rules of Professional Conduct:

• MR 5.5 / NC Rule 5.5(d) (assisting the unauthorized practice of law)

Statutes:

• N.C. Gen. Stat. § 84-2.1 (definition of the practice of law)
• N.C. Gen. Stat. § 84-4 (limiting the practice of law to active members of the State Bar)

Other opinions cited:

• NC Authorized Practice Advisory Opinion 2006-1: appearing in a representative capacity at a quasi-judicial zoning or land-use hearing is the practice of law, limited to active State Bar members.

See also

• NC Authorized Practice Advisory Opinion 2006-1: Quasi-Judicial Zoning Hearings
• NC 2007 FEO 12: Outsourcing Legal Support Services
• ABA Formal Op. 506: Responsibilities Regarding Nonlawyer Assistants

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2007-formal-ethics-opinion-3/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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.