By Commissioner Wesley G. Marshall[1]
Virginia Workers’ Compensation Commission

February 2024

 

At a recent meeting of the Dispute Resolution Committee of the International Association of Industrial Boards and Commissions, a judge from one jurisdiction related attempts by non-lawyers vested with a Durable Power of Attorney to act in a representative capacity at evidentiary hearings. Workers’ Compensation proceedings in some jurisdictions are quasi-judicial or administrative, and often less formal than regular courtroom proceedings. Nonetheless, can or should a workers’ compensation court permit appearances in a representational capacity?

A majority of states have adopted the Uniform Power of Attorney Act (UPOAA) from 2008 to 2017.[1] The UPOAA is a model law developed to promote uniformity in power of attorney processes and to eliminate differences between the laws of various states. [2] The UPOAA contains standardized definitions for the rights that can be exercised under a Power of Attorney.[3] The UPOAA provides:

Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to claims and litigation authorizes the agent to:

1. Assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment, or defense, including an action to recover property or other thing of value, recover damages sustained by the principal, eliminate, or modify tax liability, or seek an injunction, specific performance, or other relief;

2. Bring an action to determine adverse claims or intervene or otherwise participate in litigation.

On its plain language, the UPOAA suggests that one holding a Power of Attorney can, “assert and maintain,” a cause or claim before a “court of administrative agency.” Also, one vested with a Power of Attorney can, “intervene or otherwise participate in litigation.”[4]

But, not so fast. Virtually every state has professional rules relating to the Unauthorized Practice of Law.[5]

In Virginia, the legislature granted the Supreme Court of Virginia the authority to, “promulgate rules and regulations defining the practice of law.”[6] The legislature vested the Board of Bar Examiners with authority to, “determine[e] the qualifications of applicants. . .  determine[e] requirements for taking an passing examinations, and [grant] such certificates to the practice of law as may be authorized by the Supreme Court.”[7] The Rules of the Supreme Court directly address the unauthorized practice of law. “No non-lawyer shall engage in the practice of law in the Commonwealth of Virginia or otherwise hold himself or herself as authorized or qualified to practice law in the Commonwealth of Virginia except as may be authorized by rule or statute.”[8]

This somewhat begs the question: what is and is not the practice of law? Virginia’s Rules define it to include, when representing another, by words or conduct, to:

A.  Undertake for compensation, direct or indirect, to give advice or counsel to an entity or person in any matter involving the application of legal principles to facts.
B. Select, draft or complete legal documents or agreements which affect the legal rights of an entity or person.
C. Represent another entity or person before a tribunal.
D. Negotiate the legal rights or responsibilities on behalf of another entity or person.[9]

Separately, another code section creates specific groups of non-lawyers who are permitted to engage in limited actions that are not considered the practice of law.[10] These include limited circumstances, such as pro hac vice admissions for non-jurisdictionally licensed attorneys working with those in this state, military programs for low-income military members and dependents, social services workers, and students authorized under a third-year practice rule. The Supreme Court’s rule has a more expansive list of exclusions:

A.  Providing translation services.
B.  Selling legal forms.
C.  Pro se representation.
D.  Serving as a mediator, arbitrator, conciliator, or facilitator.
E.  Serving as a fiduciary.
F.  Acting as a lobbyist.
G.  Teaching law or providing legal information.
H.  Negotiating settlements and preparing releases in the course of employment as an adjustor or agent for an insurer.
I.  Preparing tax returns to the extend authorized by the Internal Revenue Service or other state law.[11]

The Supreme Court of Virginia addressed this issue in its September 13, 2021 Order, Unauthorized Practice of Law Opinion 218. This opinion affirmed and enhanced upon the earlier Unauthorized Practice of Law Opinion 194, issued May 1, 2000. In UPL Opinion 194, the Supreme Court concluded a power of attorney did not authorize a non-lawyer to prepare, sign, and file a Motion for Judgment in a circuit court, nor could the attorney-in-fact appear in court on the principal’s behalf. The Court wrote, “[a] general power of attorney is not sufficient to confer upon a non-lawyer the legal authority to practice law on the principal’s behalf. The authority to practice law is conferred by the state through the issuance of a license to practice law.”[12]

In UPL Opinion 218, the Court addressed the argument that the UPOAA’s language permitting holders of Powers of Attorney to “bring an action,” translated into a right for a non-lawyer to file pleadings or appear before a court or tribunal, on behalf of a principal, without a lawyer. The Court noted a lack of Virginia authority but did recite federal law.

In Manship v. Thomson,[13] the United States District Court for the Western District of Virginia wrote:

… the right to litigate on one’s own behalf does not create a right to litigate on behalf of another person … absent certain narrow exceptions, an individual seeking to litigate someone else’s claims is without standing and cannot bring a lawsuit.

Manship argues that he has standing pursuant to Virginia’s Uniform Power of Attorney Act, Va. Code Ann. § 26-72 (2000) … Manship misinterprets the Virginia statute. A power of attorney does not grant an individual the power to act as an attorney. The practice of law is limited to pro se litigants seeking to vindicate their own rights and licensed attorneys admitted to practice before the court. See Pridgen v. Andersen, 113 F.3d 391, 393 (2d Cir. 1997). Manship is neither.

The Supreme Court of Virginia also cited other federal authority, including this salty sailor’s snippet:

“In sum, litigation is akin to navigating hazardous waters; federal courts are willing to allow individuals to steer their own boats, and perhaps founder or run aground; but federal courts are not willing to permit individuals to risk the safety of others’ boats.”[14]

“The inherent right of a person to appear pro se in legal proceedings cannot be assigned to another by executing the power of attorney. To hold otherwise would invite the unauthorized practice of law.”[15]

From a practical perspective, permitting an individual with a Durable Power of Attorney to appear in a representative capacity, without counsel, is fraught with problems. The person possessing the Power of Attorney is not an attorney.[16] They cannot present direct evidence because usually they were not witness to the facts giving rise to the cause. Any attempt to embrace such a notion would be fraught with endless hearsay problems. “My mother told me to tell you she was working at the factory on June 15 when the machine mis-cycled and cut off four fingers on her right hand.” Judges must protect their records and protect the integrity of their systems, including enforcing appropriate guardrails for the practice of law.

Ultimately, in UPL Opinion 218, the Supreme Court of Virginia noted a constellation of states[17] had concluded, “a power of attorney is not a license to practice law.”[18] So, just because you have a Power of Attorney does not make you one.

[1] The UPOAA has been adopted in: Alabama, Arkansas, Colorado, Connecticut, Georgia, Hawaii, Idaho, Iowa, Kentucky, Maine, Maryland, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, Wyoming and the District of Columbia. Non-adopting states have their own Power of Attorney laws.
[2] In 1979, a Uniform Durable Power of Attorney Act was approved. Unif. Durable of Attorney Act (1979) (Unif. Law Comm’n, amended 1987). In 2006, the UPOAA was adopted. Unif. Power of Attorney Act (2006) (Unif. Law Comm’n, amended 2016).
[3] “While the legal doctrine of agency is ancient, the durable agent is not. Until about sixty years ago, an agent’s authority automatically terminated upon the incapacity of the agent’s principal, making agency arrangements ineffective . . . . Virginia led the way by enacting in 1954 the prototypical statute for durable powers of attorney[,]” Act of Apr. 5, 1954, ch. 486, 1954 Va. Acts 581-82. Manns, F. Philip, Jr., Powers of Attorney under the Uniform Power of Attorney Act Including Reference to Virginia Law, 43 ACTEC L.J. 151, 153-154, 154 n. 1. (2018).
[4] Unif. Power of Attorney Act §212(1) and (2).
[5] See, e.g., Model Rules of Prof’l Conduct r. 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law (Am. Bar Ass’n 1983).
[6] Va. Code §54.1-3909.
[7] Va. Code §54.1-3922.
[8] Rules of the Supreme Court of Virginia, Part 6 § I (1). The Rule references Virginia Code §54.1-3904, which makes anyone engaging in the unauthorized practice of law guilty of a class 1 misdemeanor, punishable by imprisonment up to 12 months and/or a $2,500 fine.
[9] Rules of the Supreme Court of Virginia, Part 6 § I (2).
[10] Va. Code §54.1-3900.
[11] Rules of the Supreme Court of Virginia, Part 6 §1 (3). Other exceptions apply. For instance, Virginia Code §16.1-88.03 and 16.1-81.1 permit nonlawyers to prepare, sign, and file pleadings on behalf of specified business entities and allow them to be represented by non-lawyer officers before general district courts. The Virginia District Court Judges’ Benchbook contains 8 pages of exceptions where non-lawyers may engage in various transactions and actions. Id. at 215-222 (2023); see also Grigg, Virginia, The Practice of Law or Not the Practice of Law, That is the Question, Wealth Strategies Journal (September 9, 2019), https://wealthstrategiesjournal.com/2019/09/09/the-practice-of-law-or-not-the-practice-of-law-that-is-the-question/ (providing another list of exceptions).
[12] Supreme Court of Virginia, UPL Op. 194 (May 1, 2000).
[13] Case No. 5:11CV00030 (W.D. Va. Apr. 19, 2011).
[14] Supreme Court of Virginia, UPL Op. 218 at 6 (Sept. 13, 2021) (quoting Brown v. Ortho Diagnostic Sys., 868 F. Supp. 168 (E.D. Va. 1994)).
[15] Gilman POA Manheim v. Kipp, 136 Misc. 2d 860, 519 N.Y.S. 314, 315 (Syracuse City Ct. 1987).
[16] The Nevada Court of Appeals noted that permitting one with a Power of Attorney to appear in a representative capacity would endorse the “absurd result” of “sanctioning criminal conduct by permitting nonlawyers to engage in the unauthorized practice of law.” Eby v. Johnston Law Office, P.C., 518 P.3d 517, 524 (Ct. App. Nev. Sept. 8, 2022) (quoting Drake v. Superior Court, 26 Cal. Rptr. 2d 829 (Cal. Ct. App. 1994)).
[17] UPL Op. 218 at 6 (citing Baldwin v. Mollette, 527 S.W.3d 830 (Ky. Ct. App. 2017); Fallarino v. Fallarino, 56 N.Y.S.3d 414, 2017 N.Y. Slip Op. 27186 (2d Dept., Appellate Term, 2017); KeyBank Nat’l Ass. v. Sarameh, 2013 Ohio 2576 (Ohio App. 2013); In Re: Conservatorship of Riebel, 625 N.W.2d 480 (Minn. 2001); Haynes v. Jackson, 2000 ME 11, 744 A.2d 1050 (Me. 2000); Disciplinary Counsel v. Coleman, 88 Ohio St.3d 155, 158, 724 N.E.2d 402 (2000)); See also Supreme Court of Virginia, UPL Op. 194 (May 1, 2000).
[18] Id. See also Powerserve Int’l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001) (“an ‘attorney’in-fact may not litigate a pro se action on behalf of another”); Johns v. Cty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1978); Banks v. Gates Hudson & Assoc., Civil Action No. 1:19-cv-1259 (E. D. Va. June 23, 2020) (“The right to litigate for oneself … does not create a coordinate right to litigate for others.”) (quoting Myers v. Loudoun Cty. Pub. Schs., 418 F.3d 395, 400 (4th Cir. 2005)); Christiansen v. Melinda, 857 P.2d 345, 346-39 (Alaska 1993); Drake v. Superior Court, 26 Cal. Rptr. 2d 829 (Cal. Ct. App. 1994). Jones v. Brooks, 97 A.3d 97, 97 (D.C. 2014); Eby v. Johnston Law Office, P.C., 518 P.3d 517, 524 (Ct. App. Nev. Sept. 8, 2022); Kohlman v. W. Pa. Hospital, 652 A.2d 849, 850-52 (Pa. Super. Ct. 1994).