Can a Virginia lawyer train social workers to help pro se litigants fill out small-claims forms without assisting the unauthorized practice of law?

Plain-English summary

A lawyer proposed to train social workers to help members of the public fill out small-claims-court forms, such as a Warrant in Debt, often to recover back wages. The committee was asked whether the social workers' assistance is the unauthorized practice of law, and whether training them would be assisting that unauthorized practice.

The committee notes that defining the practice of law belongs to the Standing Committee on the Unauthorized Practice of Law, so it referred the first question there. UPL Op. 207, since adopted by the Virginia Supreme Court, concludes that a non-lawyer social worker preparing such forms engages in the unauthorized practice of law if the social worker selects the forms, advises which forms are appropriate to the litigant's case, or gives any legal advice. What a non-lawyer may do is limited to direct transcription (and, where needed, translation) of information dictated by the litigant, and general administrative instructions about how, where, and when to file.

With the first question resolved, the committee answers the second from Rule 5.5(a)(1), which bars a lawyer from assisting a non-lawyer in the performance of activity that constitutes the practice of law. The lawyer may not train the social workers to perform any work that is the unauthorized practice of law as outlined in UPL Op. 207. The committee clarifies that Comment 1 to Rule 5.5, which lets lawyers give professional advice and instruction to non-lawyers (such as social workers) whose employment requires knowledge of the law, draws a line between employment that requires knowledge of the law and employment that actually is the practice of law; the comment permits training on the law a job needs, but gives no exception to the Unauthorized Practice Rules.

In practice

The opinion holds that, under the Virginia rules, a lawyer may train non-lawyers on the law their jobs require but may not, under Rule 5.5(a)(1), train them to perform work that is the unauthorized practice of law. Per the opinion (and UPL Op. 207), a non-lawyer helping a pro se litigant with forms is limited to transcription, translation, and administrative filing instructions; selecting forms or giving legal advice is unauthorized practice, and a lawyer cannot teach a non-lawyer to do it.

Common questions

Q: Can a lawyer train social workers to help people fill out small-claims forms?

A: The opinion says only within limits. A lawyer may not train them to do anything that is the practice of law; under Rule 5.5(a)(1), assisting unauthorized practice is prohibited.

Q: What can a non-lawyer do to help a pro se litigant with forms?

A: Per UPL Op. 207 as cited, a non-lawyer may transcribe (and translate) information the litigant dictates and give general administrative instructions on how, where, and when to file, but may not select forms or give legal advice.

Q: Doesn't Rule 5.5's comment let lawyers teach social workers about the law?

A: The opinion says Comment 1 permits training non-lawyers on the law their jobs require, but it distinguishes employment that requires knowledge of the law from employment that is the practice of law, and gives no exception to the Unauthorized Practice Rules.

Background and rules framework

The opinion interprets Rule 5.5(a)(1) (Model Rule 5.5, unauthorized practice; assisting a non-lawyer in the practice of law) and its Comment 1 (advice and instruction to non-lawyers whose work requires legal knowledge). It defers to the Standing Committee on the Unauthorized Practice of Law and applies UPL Op. 207, adopted by the Virginia Supreme Court.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 / Virginia Rule 5.5(a)(1) (assisting a non-lawyer in the unauthorized practice of law; Comment 1)

Other opinions cited:

• Virginia UPL Op. 207 (non-lawyer assistance to pro se litigants with court forms)

See also

• VA LEO 1803: Prison Lawyer as Scrivener for Inmates
• ABA Formal Op. 08-451: Outsourcing Legal Services
• ABA Formal Op. 95-393: Client Files to Nonlawyer Bosses

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1792.pdf

Original opinion text

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

Supreme Court Approved
November 2, 2016
Committee Opinion
January 10, 2006
LEGAL ETHICS OPINION 1792

IS IT CONSIDERED ASSISTING IN THE
UNAUTHORIZED PRACTICE OF LAW FOR AN
ATTORNEY TO INSTRUCT A SOCIAL
WORKER TO ASSIST PRO-SE LITIGANTS TO
FILL-OUT SMALL CLAIMS FORMS?

Your request presents a hypothetical involving an attorney providing training to nonlawyers. Specifically, this attorney would be training social workers to assist members
of the public in filling out forms for use in small claims court, usually to obtain payment
of back wages from employers. The questions raised regarding that hypothetical
situation are as follows:
1. Is it the unauthorized practice of law for a social worker to assist a pro se
litigant in completing forms, such as the Warrant in Debt, for small claims
court?
2. Would it be aiding in the unauthorized practice of law for an attorney to
teach the social workers how to provide this assistance?
The purview of this committee is to interpret exclusively the Rules of Professional
Conduct. In contrast, it is the purview of the Standing Committee on the Unauthorized
Practice of Law to interpret the Unauthorized Practice Rules to determine the
parameters of the practice of law. This Committee referred your first question to the
Standing Committee on the Unauthorized Practice of Law, as within the purview of that
Committee. The Virginia Supreme Court recently adopted UPL Op. 207, which the
Unauthorized Practice of Law Committee had issued in response to your request. That
opinion concludes as follows:
The preparation of warrants in debt and other forms necessary for pro se
representation (“legal instruments of any character”) in Small Claims Court by
a non-attorney social worker would be the unauthorized practice of law if the
non-attorney social worker selects the forms for the litigant or advises the
litigant as to which forms are appropriate based on the litigant’s particular
case; or provide any legal advice to the litigant. The social worker may assist
the litigant with completion of the form document using language specifically
dictated by the litigant.
The only assistance that a social worker, or any non-lawyer, may provide to a
pro se litigant to complete form legal documents is direct translation of the
document (if the litigant does not speak or read English) to the litigant’s native
language, direct transcription, or direct transcription and translation to English,
of information necessary to complete forms as dictated by the litigant. The
social worker may also provide general administrative instructions such as to
how and where and when to file the forms with the appropriate court/tribunal.
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Supreme Court Approved
November 2, 2016
Committee Opinion
January 10, 2006
With that resolution of your first question, this Committee can now address your second
question. The second question of your hypothetical is whether an attorney may train those social
workers to provide the assistance outlined above. Rule 5.5(a)(1) prohibits an attorney from
assisting a nonlawyer in “the performance of activity that constitutes the practice of law.” Thus,
the answer to this second question flows directly from that of the first. The attorney may not
train the social workers to perform any work constituting the unauthorized practice of law, as
outlined in this context by UPL Op. 207.
The committee wishes to clarify a point included in your request materials. Comment One to
Rule 5.5 states that the rule is not intended to prohibit lawyers “from providing professional
advice and instruction to nonlawyers whose employment requires knowledge of the law.”
Examples cited in that comment are claims adjusters, employees of financial or commercial
institutions, and social workers. The critical distinction here is between employment that
“requires knowledge of the law” and employment that actually is the practice of law. A
nonlawyer’s employment may well entail a necessary understanding of pertinent law; that
knowledge, however, does not provide authority to provide legal services based on that
understanding. Comment One is intended to allow lawyers to provide training on the law needed
for performance of a job; it does not provide the receivers of that training an exception to the
Unauthorized Practice Rules. To reiterate, this attorney cannot instruct these social workers in
the unauthorized practice of law.
Supreme Court Approved
November 2, 2016
Committee Opinion
January 10, 2006

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