— N.J.L.J. —

(March , 2013)

Issued by UPLC March 12, 2013

COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW

Appointed by the Supreme Court of New Jersey

OPINION 50

A Non-lawyer Who Holds a Power of Attorney May Not Engage in the Practice of Law

The Committee on the Unauthorized Practice of Law received a complaint alleging that a nonlawyer attempted to represent a grievant in an attorney discipline matter. The nonlawyer argued  that his conduct was permitted because the grievant had executed a power of attorney authorizing him to act as the grievant’s agent. The Committee hereby issues this Opinion to clarify that a nonlawyer holding a power of attorney is not authorized to act as a lawyer licensed in the State of New Jersey. A power of attorney does not permit a nonlawyer to provide legal services or advice, or represent the principal in any judicial or quasi-judicial forum. A nonlawyer who acts in this manner engages in the unauthorized practice of law.

“A power of attorney is a written instrument by which an individual known as the principal authorizes another individual . . . known as the attorney-in-fact to perform specified acts on behalf of the principal as the principal’s agent.” N.J.S.A. 46:2B-8.2a. An “attorney-in-fact” is different from an “attorney-at-law”; an “attorney-in-fact” is not a lawyer but, rather, a person who merely has authorization to perform certain acts on behalf of a principal.

A power of attorney cannot authorize an agent to perform acts that would be considered the practice of law.1 Only the New Jersey Supreme Court has the power to regulate the practice of law and to decide who is authorized to practice law. N.J. Const. (1947) Art. VI, sec. 2, par. 3; In re Opinion No. 26 of the Committee on the Unauthorized Practice of Law, 139 N.J. 323, 326 (1995) (the Court’s “power over the practice of law is complete”).

Admission to practice law in New Jersey is a “privilege burdened with conditions.” In re Application of Matthews, 94 N.J. 59, 75 (1983). Lawyers seeking a license to practice law in New Jersey must have “good moral character, a capacity for fidelity to the interests of clients, and for fairness and candor in dealings with the courts.” In re Pennica, 36 N.J. 401, 434 (1962).

The layman must have confidence that he has employed an attorney who will protect his interests. Further, society must be guaranteed that the applicant will not thwart the administration of justice. These exigencies arise because the technical nature of law provides the unscrupulous attorney with a frequent vehicle to defraud a client. Further, the lawyer can obstruct the judicial process in numerous ways, e.g., by recommending perjury, misrepresenting case holdings, or attempting to bribe judges or jurors.

[Matthews, supra, 94 N.J. at 77 (quoting In re Eimers, 358 So.2d 7, 9 (Fla. 1978)).]

“The protection of the public and the assurance of the proper, orderly, and efficient administration of justice in New Jersey are ensured in our state through the requirement that only attorneys authorized to practice law in New Jersey may engage in legal activities.” In re Jackman, 165 N.J. 580, 585 (2000). See Rule 1:21-1(a) (requirements to practice law in New Jersey). Licensed lawyers must comply with the Rules of Professional Conduct and are subject to discipline for ethical violations. Rule 1:20-1(a). Licensed lawyers must participate in mandatory continuing legal education. Rule 1:42-1.

Providing legal advice and representing parties in court or in quasi-judicial forums such as attorney discipline proceedings or administrative agency hearings is the practice of law. Stack v. P. G. Garage, Inc., 7 N.J. 118, 120-21 (1951); Slimm v. Yates, 236 N.J. Super. 558, 561 (Ch. Div. 1989); Tumulty v. Rosenblum, 134 N.J.L. 514, 517-18 (Sup. Ct. 1946); Committee on the Unauthorized Practice of Law Opinion 21, 100 N.J.L.J. 1118 (1977). “The practice of law in New Jersey is not limited to litigation. . . . One is engaged in the practice of law whenever legal knowledge, training, skill, and ability are required.” In re Jackman, supra, 165 N.J. at 586.

The Committee considered whether it is in the public interest to permit nonlawyers who hold powers of attorney to provide legal services or represent parties in court or a quasi-judicial forum. Permitting nonlawyers who hold a power of attorney to practice law would expose members of the public to persons who are not bound by the Rules of Professional Conduct and who do not have any training in law. It would interfere with the orderly administration of justice and judges’ expectations that representatives appearing in court will act ethically. It would abrogate New Jersey’s  licensing and admission requirements. The Committee finds that it is not in the public interest to permit the practice of law by nonlawyers who have been appointed agent of a principal pursuant to a power of attorney. Such conduct is the unauthorized practice of law.

This decision of the Committee is consistent with the findings of courts in New Jersey and other jurisdictions. In Kasharian v. Wilentz, 93 N.J. Super. 479 (App. Div. 1967), the court rejected an attempt by an administrator ad prosequendum who sought to institute a wrongful death action. “[N]ominal representatives or even active fiduciaries of the persons in beneficial interest, not themselves lawyers, should not be permitted to conduct legal proceedings in court involving the rights or liabilities of such persons without representation by attorneys duly qualified to practice law.” Id. at 482.

The Ohio Supreme Court recently found that a person holding a power of attorney is not authorized to file papers in court on behalf of the principal. The Ohio Court quoted the findings of its Board on Unauthorized Practice of Law:

A durable power of attorney, naming a non-attorney as one’s agent and attorney-in-fact, does not permit that person to prepare and pursue legal filings and proceedings as an attorney-at-law. Since 1402, the law has recognized the distinction between an attorney-in-fact and an attorney-at law, and only attorneys-at-law have been permitted to practice in the courts.

[Ohio State Bar Ass ’n v. Jackim, 901 N.E.2d 792, 794 (Ohio 2009).]

See also In re Estate of Friedman, 482 N. Y.S.2d 686, 687 (Surr. Ct. NY 1984) (principal “cannot use a power of attorney as a device to license a layman to act as her attorney in a court of record. To sanction this course would effectively circumvent the stringent licensing requirements of attorneys by conferring upon lay persons the same right to  represent others by the use of powers of attorney”); Ross v. Chakrabarti, 5 A.3d 135, 141 (Ct. Special App. Maryland 2010) (power of attorney did not give agent right to provide legal advice or appear in court on behalf of principal; to confer such power would be to give a nonlawyer “the right to practice law in this State without meeting the educational, examination, and ethical standards established by the General Assembly and the Court of Appeals”); In re Conservatorship of Riebel, 625 N. W.2d 480, 482 (Minn. 2001) (a power of attorney does not authorize a nonlawyer to sign pleadings and appear for principal in court proceedings; “the attorney-in-fact may make decisions concerning litigation for the principal, but a nonlawyer attorney-in-fact is not authorized to act as an attorney to implement those decisions”); Mosher v. Hiner, 154 P.2d 372, 374 (Ariz. 1944) (prohibiting attorney-in-fact from filing case in court on behalf of principal; “if an attorney-in-fact could appear in cases in our courts there would be no need for a College of Law at our University”); Risbeck v. Bon, 885 S. W.2d 749, 750 (Ct. App. Missouri 1994) (while parties may represent themselves in court, an agent or attorney-in-fact who is not a licensed attorney may not represent another person in court); State v. Milliman, 802 N. W.2d 776, 780 (Ct. Appeals Minn. 2011) (“a principal of an agent cannot, by executing a power of attorney, authorize the agent to practice law if the agent is not an attorney-at-law”); Christiansen v. Melinda, 857 P.2d 345 (Alaska 1993) (nonlawyer holding a power of attorney cannot bring suit on behalf of another person).

In sum, a nonlawyer holding a power of attorney is not authorized to act as a lawyer licensed in the State of New Jersey, cannot provide legal services or advice, and cannot represent the principal in any judicial or quasi-judicial forum. A nonlawyer who acts in this manner engages in the unauthorized practice of law.

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Note- 1 – Powers of attorney often include provisions empowering the agent to “pursue claims and litigation.” This provision permits the agent to act on behalf of the principal as the client in a lawsuit. An attorney-in-fact (the holder of a power of attorney) may make decisions concerning litigation for the principal, such as deciding to settle a case, but a nonlawyer attorney-in-fact may not act as lawyer to implement those decisions. See 3 C.J.S. Agency, Paragraph 217, page 499 (2008). Nor may an agent appear on behalf of a principal in court as a pro se party; only the real party in interest – the principal, not a nonlawyer agent — is permitted to appear in court pro se. R. 1:21-1(a).

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0 responses to “A Non-lawyer Who Holds a Power of Attorney May Not Engage in Practice of Law”

  1. B.S.K.RAO says:

    Indian legislature provided special class of persons called Advocates in Advocates Act, 1961 to practice all Indian laws. Therefore, appearance clause not yet all required in any Indian statute. Bar Council of India Vs A.K.Balaji [SLP (Civil) No(s) 17150-17154/2012] Dt.04.07.2012 (SC) and A.K.Balaji Vs Govt. of India (2012) 35 KLR 290 21.02.2012 (Madras HC) it was clearly held by Hon’ble Supreme Court & Madras High Court that Advocates alone are entitled to practice the Profession of Law both in litigious & non-litigious matters, nullifying the effect of Section 33 of Advocates Act. This also confirms to Section 29 of Advocates Act. The verdict of Supreme Court is the declared law of land, binding on all throughout the territory of India under Article 141 of Indian Constitution & contravention liable for action under Article 129 read with Article 142(2) of Indian Constitution. Income-Tax Act being “LAW” Advocates alone are entitled to Practice, Plead & Act before the assessing officers of Income-Tax Deptt. On date, appearance clause Section 288(2) of Income-Tax Act has been subjected to review of Apex Court.

    Furnishing of Certificate & Reports in Income-Tax Act require both interpretation of facts & law. Interpretation of facts is not a tough job, but interpretation of law is a tough job. Practice of law is the Prerogative Power of Advocates in India. Whereas practice of Cost Accounts, Management Accounts & Financial Accounts are not the prerogative powers of respective professional body. Because, penalty has been prescribed U/s 45 of Advocates Act, 1961 for persons illegally practicing the Profession of Law. Under Indian Constitution CAG are the Auditors with wide powers, carrying out meaningful job. Due to T.D.Venkat Rao (SC) case only Chartered Accountant issue Tax Audit Certificate in Income-Tax Act. In view latest verdict in the case of Bar Council of India Vs A.K.Balaji (SC) Section 288(2) of Income-Tax Act require deletion from the the statute. In the result only CAs will conduct Tax Audit & only Advocate will plead & act before the Income-Tax Authorities. Can any one imagine the ill effect of this situation to Govt. revenue & troubling assessees to approach more than one Tax Professional to give compliance in Income-Tax Act.

  2. Bellary TAX BAR says:

    latest verdict in the case of A.K.Balaji Vs Govt. of India Dt.21.02.2012 Madras (HC) & Bar Council of India Vs A.K.Balaji Dt.04.07.2012 (SC), it is very much clear that “to practice the profession of law” the person should be well covered U/s 29 of Advocates Act, 1961. An application under Article 141 of Indian Constitution has been made by Tax Bar Association, Uttarakhand to Commissioner of Commercial Taxes, Dehradun, Uttarakhand, not to allow other than Advocate to practice commercial tax law in the State of Uttarakhand & if allowed it amounts to contravention of Advocates Act read with Supreme Court verdict, liable for action under Article 142(2) of Indian Constitution for contempt of court.

    To avoid possible future complications NEED OF INTRODUCING A TAX PRACTITIONERS BILL for those who are engaged in tax practice formed by legislature governing respective tax professionals to put demarcation for their area of operation

  3. MANDEEP SINGH says:

    It is right if power of attorney holder permitted to plead & argue before any authority or tribunals ( which are also courts). Than there is no need of law colleges in india and other world.
    Every profession is developed for specific work, if such work will be done by power of attorney holder than there is no need of any profession.

    POWER OF ATTORNEY IN FACT-CAN EXECUTE IN FAVOR OF ANY PERSON TO DO SPECIFIC ACT.
    ATTORNEY IN LAW— ONLY IN FAVOR OF ADVOCATE.
    In india who is authorized representative are also doing practice as like Advocates. There is no fear in their minds judgement of Hon’ble Supreme court.

  4. R Balasubramanian says:

    Hope such issues do not come up for litigation in India.

    R Balasubramanian, Chennai-59.

  5. Taxxguru says:

    In India also this should be strictly followed by all other professionals (Non-Lawyers) who are engaged “Illegally” in Profession of Law/Practice of Law.

    Section 29 of Advocates Act 1961 state that :- “Advocates to be the only recognized class of persons entitled to Practice Law in India.”

    However many other professionals (Non-Lawyers) who are taking degrees in Accountancy & other fields are practicing Law, which is illegal in nature as per Section 29 of Advocates Act 1961.

    Bar Council of India as well as State Bar Councils must take stringent steps towered this illegal practice of law by Non-Lawyers/Advocates. They must represent before various forum in Central/State Governments & make them to prohibit this type of Illegal Practice of Law by the Non-Lawyers in every field of Law (it may be Taxation Law, Civil Law, Criminal Law, Corporate Law. Advocacy, representation Whether before Courts or Judicial Authority or Quasi-judicial authorities, it must be prohibited to Non-lawyers).

    Otherwise Lawyers must be empowered with right to practice as Accountants or other related profession.

  6. TAXWELL says:

    GOOD STEP,BUT IN NON LITIGIUOS MATTERS LIKE NORAML ATTESTAION BELOW AUDIT LIMIT SOME POWERS MUST BE ENJOYED BY ADVOCATES.TO SAFGUARD THEIR BASIC RIGHT TO PRACTICE IN NON LITIGEOUS MATTERS INDEPENDENTLY.

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