Design Professional's Practice Bulletin

Volume 4, Number 2 — October 2000

This Bulletin addresses recent developments affecting Design Professionals as well as business concerns as important as the specific professional and technical issues they face.

Editors: Neil P. Clain and Richard J. Davies

PBA Unauthorized Practice of Law Committee Targets Design Professionals

By C. Grainger Bowman, Esquire

Do design professionals engage in the unauthorized practice of law when they represent landowners before municipal agencies in land use matters? This issue is addressed in a September 1999 formal opinion of the Pennsylvania Bar Association's Unauthorized Practice of Law Committee. The Committee's formal opinion has drawn the attention of professional societies of architects, engineers, and landscape architects because the opinion has criticized the practice of design professionals in representing land owners before municipal agencies.

WHAT IS THE UNAUTHORIZED PRACTICE OF LAW?

If you hold yourself out to the public as being entitled to practice law, without being a licensed attorney, you commit a misdemeanor in this Commonwealth. These offenses are prosecuted by the District Attorney and are punishable by fine and/or imprisonment. A violator is also subject to an injunction (usually brought by a bar association or a district attorney) and subject to a judgment for the recovery of the plaintiff's costs and attorneys' fees in connection with the injunction proceeding. The Supreme Court of Pennsylvania has the ultimate power to determine what is the "unauthorized practice of law," not the Committee. However, the Supreme Court's decisions have not produced a precise definition of unauthorized practice. Instead, the court has relied upon certain guiding principles to determine on a case-by-case basis which areas of professional practice should be reserved for those who are licensed attorneys.

The Committee was established by Pennsylvania lawyers to offer advisory judgments to assist the Supreme Court in making its decisions about whether or not someone has engaged in the unauthorized practice of law. The opinions of the Committee are not binding but they are deemed persuasive by the courts when they are well reasoned and consistent with a fair reading of Pennsylvania law. The Pennsylvania Bar Association has also, from time to time, acted as an aggrieved party (representing the legal community) to prevent persons from practicing law without a license.

THE PRACTICE OF LAND USE PROFESSIONALS

The relevance of this area of law to the practice of design professionals has been raised by complaints to the Committee that non-lawyer land use professionals who have made presentations to municipal bodies, without the assistance of a licensed attorney, in the course of land development projects have engaged in the unauthorized practice of law.

Design professionals whose practice takes them before municipalities on land use matters have been surprised by this criticism of their long recognized practice in consulting on land use matters before such municipal bodies. This is particularly so because the Municipalities Planning Code which governs the manner in which Pennsylvania property owners are permitted to use real estate, implicitly, if not explicitly, acknowledges that its objectives demand the technical competence of design professionals to make the land use management system work. The Code's stated purpose of promoting the general welfare calls for a process of development in which: (1) the governmental processes and functions are improved; (2) the uses of land and structures are examined under practical guidelines; (3) public streets, grounds and facilities are properly typed and located; (4) energy is conserved through proper planning and renewable energy sources are effectively utilized; and (5) municipalities are permitted to minimize foreseeable growth problems. Certainly, design professionals' analytical skills are necessary to determine if a plan is a reasonable use, or a potential abuse of municipal resources.

Indeed, public land use professionals have been on staff of municipalities for years to guard against ill-conceived land development plans proffered by aggressive developers. Private consulting engineers and land use professionals have serviced the private real estate market by preparing and presenting complete land development plans for consideration by municipalities. The technical competence of these professionals has brought about creative solutions to burdensome municipal problems. Their technical competence enables them to guide the developers through the increasingly complex maze of local and statewide rules, regulations and requirements. The presentations of public and private land use professionals in public meetings are essential to good municipal development. However, it is these presentations by design professionals in public hearings that have caught the attention of the Pennsylvania Bar Association and have subjected the design professionals to the charge that they are engaged in the unauthorized practice of law.

THE COMPLAINTS AND THE COMMITTEE'S OPINION

The complaints allege that land use professionals have crossed the line between the proper practice of land use engineering/management and the practice of law. The reasoning behind these complaints is that the representation of property owners before municipal bodies in various proceedings is actually the art of advocating for the protection of a person's property rights before the public agency that has jurisdiction to affect those property rights. These agencies exercise significant power that affects a property owner's tangible interests. Often, the proceedings before these agencies are adversarial, requiring the creation of a record of the issues raised through the submission of evidence and through argument upon the ordinances and statutes implicated by the plan. Apparently, the Committee has been persuaded by this reasoning. The formal opinion expresses the Committee's view that only a party skilled in the handling of confrontational proceedings can adequately protect a property owner's rights, and that a "non-lawyer is not sufficiently trained to evaluate the legal sufficiency of the opposition's arguments." The Committe finds that the representation of owners/applicants requires familiarity with evidentiary burdens, ordinances, statutes (including the Municipalities Planning Code), and appellate court decisions. The Committee's opinion is that only an attorney can properly build a record for municipal and appellate review. "[C]learly, non-attorney representation of applicants before the zoning hearing board or governing body endangers the public." The Committee thus concludes that non- attorneys representing parties at such hearings are engaging in the "unauthorized and unlicensed practice of law." The Committee has expressly identified the following persons as being in possible violation: architects, civil engineers, surveyors, land use and urban planners, real estate sales persons and brokers, real estate appraisers, and contractors.

WHAT ARE THE CONSQUENCES OF THE FORMAL OPINION?

There is no indication from the Committee's opinion that design professionals should be excluded entirely from the professional role they have played in land use practice in the past. Certainly, municipal governing bodies and zoning boards require the opinions and certifications of land use design professionals as they examine applications for approval of subdivision and land development plans, as they examine applications for conditional use permits or special exceptions, as they weigh the impacts of the variance of a zoning ordinance, and as they determine the traffic, noise or other developmental impact on neighboring communities and municipal resources. However, when the process reaches advocacy and legal issues, the role of representation should be turned over to the lawyer. Viewed from this perspective, the formal opinion re-invigorates the role of the attorney in the land use process, a role which had been significantly downplayed before some local agencies. Stated another way, the attorney's role does not supplant the design professional's when the municipal body is properly focused on the land planner's expertise, but the attorney's role must become prominent when an evidentiary record is being made or legal issues are being addressed.

The Committee is being asked by the Pennsylvania Society of Professional Engineers to re-examine its opinion, and similar requests have been made by the Association of Landscape Architects and others. The Committee is being asked to recognize that the formal presentation of valuable technical expertise by a land use professional to a municipal body is, and always has been, an appropriate land use professional's function.

However, in the interim, land use professionals should do things to protect themselves, such as: (1) firmly refuse to express legal opinions or become an advocate in the law before public agencies; and (2) have a letter in their file informing the property owner of his or her need to have legal counsel address "legal" matters.

Should the Committee revise its opinion or address the issue in some other way we shall notify you. The formal opinion (No. 99-101) of the Unauthorized Practice of Law Committee can be found in its full text at http://www.pabar.org/uplm99-101.shtml. Certainly, should you have any questions about this development, or information of your own to add on the issue, please let us know.

© 2000 Powell, Trachtman, Logan, Carrle & Lombardo, P.C.

This bulletin is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine how laws, suggestions and illustrations apply to specific situations.