Can a nonlawyer, such as an architect or land-use planner, represent a party at a quasi-judicial zoning or variance hearing?

Plain-English summary

The Authorized Practice Committee addresses whether a nonlawyer may appear before planning boards, boards of adjustment, or other governmental bodies conducting quasi-judicial hearings in a representative capacity for another party. The opinion supplements an earlier October 2005 advisory opinion after comments from architects, land-use planners, and city and county attorneys.

The committee distinguishes legislative matters from quasi-judicial ones. The adoption of ordinances and amendments to zoning maps (general rezoning) is legislative, and any interested person may appear and speak, even as a representative of a group, without engaging in the unauthorized practice of law, though the general statutory prohibitions still apply (nonlawyers may not hold themselves out as attorneys, give legal advice, or draft legal documents). By contrast, hearings on special-use permits and variances, and appeals from staff-level permit interpretations, are quasi-judicial proceedings under N.C. Gen. Stat. §§ 153A-345 and 160A-381 and 388, where the body sits in a judicial role, witnesses are sworn and cross-examined, a record is preserved, the applicant bears the burden of proof, written findings are required, and the decision is reviewable by the courts solely on the record.

The committee concludes that an appearance on behalf of another person, firm, or corporation at a quasi-judicial proceeding to present evidence through others, cross-examine witnesses, and argue the law is the practice of law under N.C. Gen. Stat. §§ 84-2.1 and 84-4, so it is the unauthorized practice of law for someone other than a licensed attorney to appear in a representative capacity to advocate a party's legal position. The committee emphasizes it has no authority to create exceptions to the statutes and that effective representation increasingly depends on legal advocacy and compiling a supportable record for appeal.

The opinion preserves a role for nonlawyer professionals. Architects, engineers, and land-use planners may appear and testify as to factual matters and qualified expert opinions, and the roles of legal advocate and expert witness should be complementary. They may not examine or cross-examine other witnesses or advocate their clients' legal positions. The opinion does not affect city and county planning staff presenting factual information and qualified opinions, corporate officers or employees testifying on factual matters, or individuals representing themselves.

In practice

Under the statutes as the committee read them at the time of the opinion, the analysis turns on whether the nonlawyer is testifying as a witness or instead advocating a party's legal position. The opinion holds that presenting factual and expert testimony is permitted, while presenting other evidence, examining and cross-examining witnesses, making legal arguments, and advocating results for another are the practice of law reserved to licensed attorneys.

Per the opinion, speaking on legislative matters such as general rezoning is open to any interested person, subject to the general bar on nonlawyers giving legal advice or drafting legal documents.

Common questions

Q: Can an architect or planner represent a client at a variance hearing?

A: Only as a witness. The opinion concludes a land-use professional may testify to factual matters and qualified expert opinions but may not examine or cross-examine witnesses or advocate the client's legal position, which is the practice of law reserved to licensed attorneys.

Q: Is appearing at a quasi-judicial zoning hearing for another party the practice of law?

A: Yes, when it involves advocacy. The opinion concludes that presenting evidence through others, cross-examining witnesses, and arguing the law on behalf of a party at a quasi-judicial proceeding is the practice of law under N.C. Gen. Stat. §§ 84-2.1 and 84-4.

Q: Can a nonlawyer speak at a general rezoning hearing?

A: Yes. The opinion concludes that general rezoning and ordinance amendments are legislative, so any interested person may appear and speak, even as a group's representative, as long as the nonlawyer does not hold out as an attorney, give legal advice, or draft legal documents.

Q: Can planning staff still present information to the board?

A: Yes. The opinion states it does not affect city and county planning staff presenting factual information and qualified opinions, nor corporate employees testifying to facts, nor individuals representing themselves.

Background and rules framework

This is an unauthorized-practice advisory opinion interpreting the North Carolina statutes that define and restrict the practice of law (N.C. Gen. Stat. §§ 84-2.1 and 84-4), applied to quasi-judicial zoning proceedings under N.C. Gen. Stat. §§ 153A-345 and 160A-381 and 388. It does not interpret a Rule of Professional Conduct; the subject of nonlawyer practice corresponds to Model Rule 5.5 (unauthorized practice of law). The committee notes it articulates how it believes a court would resolve the question, and cannot create statutory exceptions.

Citations and references

Statutes:

• N.C. Gen. Stat. §§ 84-2.1, 84-4 (definition of, and limitation on, the practice of law)
• N.C. Gen. Stat. §§ 153A-345, 160A-381, 160A-388 (quasi-judicial zoning and variance proceedings)

Cases:

• Humble Oil & Refining Co. v. Bd. of Aldermen of Chapel Hill, 284 N.C. 458, 202 S.E.2d 129 (N.C. 1974), quasi-judicial nature of variance proceedings
• Woodhouse v. Board of Comm'rs of Nags Head, 299 N.C. 211, 261 S.E.2d 882 (N.C. 1980), quasi-judicial zoning hearings
• Robertson v. Zoning Board of Adjustment, 167 N.C. App. 531, 605 S.E.2d 723 (N.C. Ct. App. 2004), appellate review confined to the variance-hearing record

See also

• NC 2007 FEO 3: Unauthorized Practice at a Quasi-Judicial Hearing
• NC 2007 FEO 12: Outsourcing Legal Support Services

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/authorized-practice-advisory-opinion-2006-1/

Original opinion text

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

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.