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Virginia State Bar Council to Review

Unauthorized Practice of Law
Opinion 217
Pursuant to Part Six: Section lV, Paragraph 10 of the Rules of
the Supreme Court of Virginia, the Virginia State Bar Council, at
its meeting on October 4,2013, at 9:00 a.m. at the Marriott
Waterside Hotel in Norfolk, Virginia, is expected to consider for
approval, disapproval, or modification, a proposed
Unauthorized Practice of Law Opinion 217, Non-Lawyer Acting

ADDITIONAL INFO
view draft of UPL 217 (PDF file
posted 08/09/13)

as Prosecutor in a Criminal Contempt Proceeding'

UPL Opinion 217
UPL Opinion 217 was issued by the Standing Committee on the Unauthorized
Practice of Law on August 6, 2013. This opinion addresses whether it is the
unauthorized practice of law for a non-lawyer party in a civil domestic relations
matter to act as prosecutor for criminal contempt proceedings arising from the

domestic relatlons matter.

ln this proposed opinion, the father, a non-lawyer party to the civil visitation case
and the moving party/complaining witness on the show cause/criminal contempt
charges, is allowed to stand in as prosecutor for the Commonwealth to
prosecute the alleged offending parent, who is also the adverse party in the civil
matter. The Committee concludes that the father's activity is the unauthorized

practice of law.

lnspection and Comment

The proposed unauthorized practice of law opinion may be inspected at the
office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond,
Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday
through Friday. Copies of the proposed opinion can be obtained from the offices
of the Virginia State Bar by contacting the Office of Ethics Counsel at (80a)
775-0557, or can be found at the Virginia State Bar's website at
http://www.vsb.otg

Not later than September 9,2013, any individual, business, or other entity may
file or submit to Karen A. Gould, the Executive Director of the Virginia State Bar,
a written comment in support of or in opposition to the proposed advisory

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Vilginia State Bar

http ://www.vsb. orglsite/regulation/propose

d-UPLzl'

oprnron.
Updated: Aug 09, 2013

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(Tis is a staff-gereratecl DRAIT opinion and is subject to revision or withdlawal until finalized
by the lJPl, Cormuittee - August 6, 213)
UPL OPINION 2I?

NON-IAWYER AC'TING AS PROSCUTOR

IN CzuMIN,A.L CONTEMPT PROCEEDING
This opirriori aclclessos rvliether it is the uuautltorizerl practico of law for a norr-l*rvycr parly trr a
civil dlnestic relations matter to act as prosecltor fol cr-iurinal conteupt ploceedings arising
f.on the cloflestic relalions mafter. A clispute ar-ises betrvesn prents ovet visitation' Mother
allegeclly tiiled to allovv visitation on a nunbel of occasions ptusnant fo a visitatiou orclet.
Fatlie,r dles a motiop fol show cmrse leading to charges of criminal contempt against the nother"
T[e Conlolwealth Attrney's Otfice c]eclires to pr:osecute; the ofce cloes not get irrvolved in
shor,v case actions irrvolving custocly ancl visitation. Rather than fhe crimitral cotternpt charges
being dr.opped, the Court allrvs flre case to go fbllvard and allows tlre fhrher, a nort-lawyer, and
uot tpt.seoted, urcl the complaining r,r.ihress, to serve as prosecutor. Il tls role, tlte non-larvyer
will b; exarnining \ryihte$sos, rnaking legal argrunouts, prosotltiilg evidouce, ongagiilg irr
4iscovery arrcl have to evaluafe evitleuce with regard to rerrrired clisclostres.
The

Detitiolr of the Practice of Larv ilr the Colnllronwealtit of Virgilia.

cleernecl to be

practicing larv whettevel

states that "one is

'.."

(3) One rurcleltakes, with ol rvifhoul courpensation. to represeni the ittterest

of another trefore any hibunal-jucticial, adlninisfi:ative, ol' executiveotlierwise than in tire prosentirlion of facts, figut'es, or thctual cotrclusiotts,
as clistiguished t'om legal conchrsious, by an employee legularly anct bona
ficle ernployed on a salary b*sis, or b,u- orte srecially enrployed as a]l expert
in respect to such facts ancl ligrues wheu such representation by sch

or exrerl

cloes
prep:uation of pleaclings,

employee

not involve thc exaurination of

part 6, Si (BX3), Rules of the Supreme

IJuauthorizecl Practice Rule

I-

I 01

Corr1 of

r,vihtesses ot

Vilginia.. This clefurition is reiteratecl in

Replcseittatiolr Bcf'orc Tribuuals-

(A) A uon-ialvycr,

r+,ith or rvithurrt cortrpeusatiou, shall ttot rcprescrtt thc irlteres[

of anotlrer before a tribunal, oilrelwisc thau in the presentation of facts. figtues or

trctual

corrclusiuru. as clistirrgrrisltcd ht-rn legirl cotrchuios, cxc:ePt:

(1) A norr-lawycr turder thc supcrvisiori of a lawycr whr: is a tcgultu ernployee

of a legal aid society apploved by tlie Virginia State Bar in accotdance with
its rules ancl regulatiols aclopted undcr Section 54.1-3916 of tlie Cotie of
Virgiuia ltay rprsclll zru idigcut pirou oT suclt stlciety bcfbc slrch a
tbual lvhen arhorjzsd to do so by the govemitg body of such sociely ald
wlrcu such lcplcscritation is pcuuiltcd by thc rulcs ofpracticc ofsuch tribturrl.
Thu supcrvi;irg atonrcy shall assrule petsonal plofcssir.rrral rcspolsibility tbr
any lvork uclertakett try tlte nonJawyer'

(2) A law sflrdent nay epperir and reptesent others before snch a tribrural in
accurdalrcc lvith tlic tlcl-yeu studutl practicc rulc.

(B) A rron-lawycl rcguLuly crnployccl ol a salaty basis by et corpotatiou appearug

ot :ehalfofliis eurployer before a tribuual shall not eilgage in activities itivolving
tlre exaurinatiou of wiinesses. thc preparatiou anclfiliug of bricf's or ;lcaditrgs ot
t.rc pr..csctrti:rg of lcgal cortclttsiorrs.
(C)

,4.

rrorr-lawyer regulzuly crnployecl by a co4loratiort ur parfitership nray appeal

fle certai pleadiugs on behalf of Is or li.el einployel as authorized by

Virgilia Codc $ 16.1-88.03'
ancl

parl 6, $I. Rnle I, Rules of the Suprere Cotut of Virginia. Unauthorized Practice Consicteration

l-2

arlclresses pt'o sQ repleseniatioti:

m.y repl'osert himself, brtt not the ilrterest of

another, betbr.e nily tlibulal. A non-larvyer legrilarly employed on a salary
basis or one specially retained as an expert (whether as an indepenclcnt
coilractol or al eruployee of alofher) rnay present lcts, figures, or fchta1
ccrnclusiors, a^s distinguished from legal conclusions, whe,n such
presentation does not involve the examinatiorr of witesses or prepalatio[ of

UPC l-2.

A norlarvycr

br'efs or pleailirigs
Id.
the fatlier. a no-lalrlre.r party to the civil visitatior case and the moving
par./complaiing wifutess ou the show cause/ciruinal contempt char^ges, is allowect to slancl
nr pio*..utot t'orhe Comurotwealth io prosecute the alleged offendirig paleut, rvho is also the
aclverse parly i the civil rnatter. The father', who is not licensed or authorized to practice law, is
,.representrgl arrother
eurployed
[the Colrunorrwealtlr] bofbre a tribunal." He is ot "regularly
on salay asis" y / u,itli the C)ommorrwealth Attourey's Ofhce, uor is he retined as fl expert.
In orrle to ca;ry out this criurirral p;osecufion, he wilt lio preserrtirrg legal ar'Srunents/lSal
colclusions, not just "f'acts, fignres or factual conclusions." He rvill also have to exantine
witesses acl propare pleacliugs, as lceded. All of ttris conthtct violates the cleal plohibitions set
out in the lhathrizecl Practice Rules ancl the definiton of the practice of law in Vrginia artcl

I tliis incluuy,

woulcl constitute the urauthorized practice of

lart*'.

h4ost case law addr:essilg the issr.re of the propriety of usiug pdvate prosecutots focuses oir an
ttomoy in private prs.ctice borg appointecl as a prosecutor and the corflicts tltat can result. In
pzuticiar', in cases of prosecntions for crimilal contenrpt, whele tlie private prosecutor is also
coulsl to a pnfly in the relatect cirii nratter, coruls have foturcl tlrere to be a conflict ancl "enol'so
hruclanettal-and pervasive that it reqnires leversal without r-egard to the facts ol cilcumstances
of the particulal case." Young v. {.-,S. ex rel. Vttitton e.t Fils 5.A., 4BL U.S..787, i07 S'Ct' 2124
(19S7). See, olso, polo Fashons v. Stock Btuers Intent., 760F.2c1- 698 (6d'Cir. 1985); Aclkin's v.

CottlitotnueaLth,26 Va. App. 14,492 S-E. 2c1833 (1997); Cantrellv. Comnon*'eultt,229\ia.

38*t.329 S..zd 22 (t985).

A non-larvyel is not slrject to a.ttomeys' Rules of Professional Concluct regarding conflicts, uot'
aly otirer ethical duties. Allowirig ar interested uon-lawyer pzuty frorn a civil rnattet to
prosecute a clilninal contempt charge against his/her opposing party ar-isirrg out of the civil
natter, therefore, r'aises just as serious a question as to whether that non-lawyer party can
conduct the prosecution in a fair alrd irnpartial rnurle in a crse rvhiclr could result in the

(This is a staff-geueratecl DRAFT opinion

by the UPl, Cornnrittee * Art6lrst 6, 20I3)

zurd

is subject to revision

or-

withdt'arval rmtil linalized

iurplisounent of the clel'enclart. Corment l1] to Rule 3.8 of thsRres of Profbssional Condlct
sttes:

a uirrister of justice antl lot simply

that of an aclvocate. This responsibilify carries with it specific obligatiom to
see tftat the deferclmt is accordecl procedutal justice and that guilt is
deciclecl upott the basis of sufficient eviclence-

A prosecutor has the lesponsibility of

A nou-lawyel seekiug to vin<licate his/het'own interest in a criruinal prosecution does not ltave
this szune dtty/responsibility.

Inhtre llichlarrcl

Cnry, MctgistTue's Court,389 S,C.408,699 S.,.zd 161 (S.C.2010), the

Supreme Coult of South Car olina t'orurcl it was the rtmrthol'ized practice of law for " ltotllar.vyer to lepresett a busress as prosecutor of a crirninal rrtisdemeanol charge, other than a
h-rrl'lic olI'ense, in magistrate's coult." \{rile relyirrg orr SoutJr Carolitra law to find this to be
ruraufhorized plactice, the court also acceptecl an irnpoant public pollcy argfunent:

If

a private party is peruritted to prosecute a criminal action, tve cn lto

longer be assurecl tliat the powers of the State are employed or for the
interest of the cornmunity at large. It fact, we can be absolutely certain that
the irterests of the rrivatc piuty will influcnce the prosecuton, whotltor the
self-irterest lies in encouaging payment of a corporation's debt. iutluencing
settlenrent in a civil srrit, ol rnerely seekiug vegealce. - ' - -

We find that allowing prosecution clecisiols to be rnade by, or eve

influenced by, plivato ilterests 'i'i,ould do irreparable harm to our criminal
justice systeut, At the very least, 0rere is "too nruch opportunity f'or abuse
little motivation for cletaclunent." See State v. Marineau, 148 N.H.
259, 808 ,.2d 51, 55 (2002), Nacleau, J., concurting- ' ' 'The convelieue
auci tscal econoTlry of privato plosccutiou ay bq thcially nppealing, but we
rnust not embrace them rt the expense of fturdamental fairness and justice.
ancl too

For non-lawyer to proceecl to prosecute a cs s clescribecl in the scenal:io presentecl in this

opinion world be the rurauthorized practico of law. Fruther, to allo'rv tls would permit a lloniawyer to do what courts hwe strictly proliibitec{ IauS'ers liorn doirrg urde'r sir:rilal
circurnstauces.

This opiuion is based only on the facts presented and is subject to revier'r, by Bar Council at its
next regularly schecrled meoting, af(er the reqrrisite pcriod for public cornrne, in accol'rlance
with Part 6, $ IV Tl0-2 (E) aud tf 10-3 of the Rules of the Supreure Corul of Virginia. Should
Courcil applve the Opiniorr, it wil,l then be loviei,ved by tho Supreu:e Cout ptustturt to Part 6,
IV 110-4 of the Rules of the Suplerne Court of Virginia.