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Part 1 on Virginia’s Unauthorized Practice of Law Rules and HOAs – Where do we find guidance?

Originally posted 2012-12-20 07:31:25. Republished by Blog Post Promoter

Mention the unauthorized practice of law when discussing homeowner and condominium associations and typically the room gets very quiet. Associations, board members and managers strive to keep their budgets low, but compliance with new laws and regulations, keeping up with the collection of assessments, and the upswing in litigation involving homeowner and condominium associations makes it very difficult. When matters become a “legal issue,” board members and managers are best advised to seek legal counsel to ensure that the association is being adequately protected and represented, and that the board members and the managers are not engaging in activities that the Commonwealth might find to be the unauthorized practice of law.

We previously blogged on questions of the unauthorized practice of law when an unlicensed attorney serves on the association’s Board of Directors. In our next two blogs, we will review other issues involving questions of the unauthorized practice of law. In this blog, we discuss where we look for guidance, and in a subsequent blog, we will review Virginia decisions and opinions on the unauthorized practice of law.

When reviewing the actions of a person assisting another, courts review whether one is furnishing “advice or service under circumstances which imply his possession and use of legal knowledge or skill.” There are two main sources for analyzing when activities become the unauthorized practice of law:

  1. The Unauthorized Practice of Law Rules.
  2. The Unauthorized Practice of Law Advisory Opinions.

The Virginia State Bar maintains a page of the rules on its website entitled Unauthorized Practice of Law (“UPL Rules”). In the Introduction to the UPL Rules, the Virginia Supreme Court stated clearly that the UPL Rules protect the public:

The right of individuals to represent themselves is an inalienable right common to all natural persons. But no one has the right to represent another; it is a privilege to be granted and regulated by law for the protection of the public.

The UPL Rules define the “Practice of Law” in part as follows:

Specifically, the relation of attorney and client exists, and one is deemed to be practicing law whenever (1) One undertakes for compensation, direct or indirect, to advise another, not his regular employer in any matter involving the application of legal principles to facts or purposes or desires. (2) One, other than as a regular employee acting for his employer, undertakes, with or without compensation, to prepare for another legal instruments of any character, other than notices or contracts incident to the regular course of conducting a licensed business. *

Therefore, unless there is an exception, if a person does not possess an active Virginia State Bar license, that person cannot provide “legal advice” or “legal services” to another. The obvious follow-up question is “What constitutes ‘legal advice?’” We will address that issue in a subsequent blog post. In the meantime, the best course of action is to provide specific questions to your experienced attorney and let them provide you an opinion. Otherwise, if the services provided are determined to be the unauthorized practice of law, the potential liabilities include (1) possible criminal charges, because the unauthorized practice of law of is a Class 1 misdemeanor, (2) liability to the association, especially if you make a mistake, (3) possibility that a claim made by the association will not be covered by any insurance coverage, and (4) possible action by the Common Interest Community Board under manager regulations.

* Note: The Virginia State Bar has created exceptions for certain transactions.  For example, real estate purchase/sales contracts drafted by real estate agents and brokers are not the unauthorized practice of law.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

 

Susan Tarley

Susan chairs the firm's common interest community (HOAs and Condos) practice area. She was admitted into the College of Community Association Attorneys (“CCAL”). Susan is one of fewer than 150 attorneys nationwide to be admitted to CCAL, for distinguishing herself through contributions to the evolution or practice of community association law.

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Filed under: Business Law, Common Interest Community, HOA, HOA litigation, John Tarley, Susan B. Tarley, Unit Owners Association by Susan Tarley

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