Bar Rules

RULE 14-9.1PROCEDURES FOR ISSUANCE OF ADVISORY OPINIONS ON THE UNLICENSED PRACTICE OF LAW

State Bar Programs / Part XIV - Rules Governing the Investigation and Prosecution of the Unlicensed Practice of Law / 14-9. ADVISORY OPINIONS / RULE 14-9.1PROCEDURES FOR ISSUANCE OF ADVISORY OPINIONS ON THE UNLICENSED PRACTICE OF LAW

(a) Definitions.

(1) Committee. The Standing Committee as constituted according to the directives contained in these rules.

(2) Petitioner. An individual or organization seeking guidance as to the applicability, in a hypothetical situation, of the state's prohibitions against the unlicensed practice of law.

(3) Public Notice. Publication in a newspaper of general circulation in the county in which the hearing will be held and in the Georgia Bar Journal.

(4) Court. The Supreme Court of Georgia (or such other court in the state of Georgia as the Supreme Court may designate).

(b) Requests for Advisory Opinions. The Committee shall respond to written requests from all persons and entities seeking advisory opinions concerning activities that may constitute the unlicensed practice of law. Such requests shall be in writing and addressed to the State Bar of Georgia. The request for an advisory opinion shall state in detail all operative facts upon which the request for opinion is based and contain the name and address of the petitioner.

(c) Limitations on Opinions. No opinion shall be rendered with respect to any case or controversy pending in any court in this jurisdiction and no informal opinion shall be issued except as provided in rule 14-9.1(g)(1).

(d) Services of Voluntary Counsel. The Committee shall be empowered to request and accept the voluntary services of a person licensed to practice in this state when the Committee deems it advisable to receive written or oral advice regarding the question presented by the petitioner.

(e) Conflict of Interest. Committee members shall not participate in any matter in which they have either a material pecuniary interest that would be affected by a proposed advisory opinion or Committee recommendation or any other conflict of interest that should prevent them from participating. However, no action of the Committee will be invalid where full disclosure has been made and the Committee has not decided that the member's participation was improper.

(f) Notice, Appearance, and Service.

(1) At least 30 days in advance of the Committee meeting at which initial action is to be taken with respect to a potential advisory opinion, the Committee shall give public notice of the date, time, and place of the meeting, state the question presented, and invite written comments on the question. On the announced date the Committee shall hold a public hearing at which any person affected shall be entitled to present oral testimony and be represented by counsel. Oral testimony by other persons may be allowed by the Committee at its discretion. At the time of or prior to the hearing any other person shall be entitled to file written testimony on the issue before the Committee. Additional procedures not inconsistent with this rule may be adopted by the Committee.

(2) The Committee shall issue either a written proposed advisory opinion, or a letter that declines to issue an opinion, or an informal opinion as provided in rule 14-9.1(g)(1). No other form of communication shall be deemed to be an advisory opinion.

(3) A proposed advisory opinion shall be in writing and shall bear a date of issuance. The proposed opinion shall prominently bear a title indicating that it is a proposed advisory opinion and a disclaimer stating that it is only an interpretation of the law and does not constitute final court action. The Committee shall arrange for the publication of notice of filing the proposed advisory opinion and a summary thereof in the Georgia Bar Journal within a reasonable time. Interested parties shall be furnished a copy of the full opinion upon request.

(g) Service and Judicial Review of Proposed Advisory Opinions.

(1) In the case of any proposed advisory opinion in which the Standing Committee concludes that the conduct in question is not the unlicensed practice of law, it shall decide, by a vote of a majority of the Committee members present, either to publish the advisory opinion as provided in rule 14-9.1(f)(3) as an informal advisory opinion, or to file a copy of the opinion with the Court as provided in rule 14-9.1(g)(2).

(2) In the case of any proposed advisory opinion in which the Standing Committee concludes that the conduct in question constitutes or would constitute the unlicensed practice of law, the Committee shall file a copy of the opinion and all materials considered by the Committee in adopting the opinion with the clerk of the Court. The advisory opinion, together with notice of the filing thereof, shall be furnished by certified mail to the petitioner. Unless the Court grants review as provided hereinafter, the opinion shall be binding only on the Committee, the State Bar of Georgia, and the petitioner, and not on the Supreme Court, which shall treat the opinion as persuasive authority only.

(3) Within 20 days of the filing of the Advisory Opinion or the date the publication is mailed to the members of the Bar, whichever is later, the State Bar of Georgia or the petitioner may file a petition for discretionary review thereof with the Court, copies of which shall be served on the Committee. The petition shall designate the Advisory Opinion sought to be reviewed and shall concisely state the manner in which the petitioner is aggrieved. If the Court grants the petition for discretionary review or decides to review the opinion on its own motion, the record shall consist of the comments received by the Committee. The State Bar of Georgia and the petitioner shall follow the briefing schedule set forth in Supreme Court Rule 10, counting from the date of the order granting review. The Committee may file a responsive brief, and any other interested person may seek leave of the Court to file and serve a brief, whether in support of or in opposition to the opinion. Oral argument will be allowed at the Court's discretion. The Rules of the Supreme Court of Georgia shall otherwise govern the methods of filing, service, and argument. The final determination may be either by written opinion or by order of the Supreme Court and shall state whether the Advisory Opinion is approved, modified, or disapproved, or shall provide for such other final disposition as is appropriate.

(4) If the Court declines to review the Advisory Opinion, it shall be binding only on the Committee, the State Bar of Georgia, and the petitioner, and not on the Supreme Court, which shall treat the opinion as persuasive authority only. If the Court grants review and disapproves the opinion, it shall have absolutely no effect and shall not constitute either persuasive or binding authority. If the Court approves or modifies the opinion, it shall constitute binding precedent and shall be published in the official Georgia Court and Bar Rules manual. The Supreme Court shall accord such approved or modified opinion the same precedential authority given to the regularly published judicial opinions of the Court. There shall be no further review of the opinion except as granted by the Supreme Court in its discretion, upon petition to the Supreme Court.



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