UPL Advisory Opinion No. 2005-1
State Bar Programs / Part XIV - Rules Governing the Investigation and Prosecution of the Unlicensed Practice of Law / Unlicensed Practice of Law Advisory Opinions / UPL Advisory Opinion No. 2005-1
Issued by the Standing Committee on the Unlicensed Practice of Law on June 10, 2005. Note: This opinion is only an interpretation of the law, and does not constitute final action by the Supreme Court of Georgia. Unless the Court grants review under Bar Rule 14-9.1(g), this opinion shall be binding only on the Standing Committee on the Unlicensed Practice of Law, the State Bar of Georgia, and the petitioner, and not on the Supreme Court of Georgia, which shall treat the opinion as persuasive authority only.
Does a nonlawyer engage in the unlicensed practice of law when he prepares, for another and for remuneration, articles of incorporation, bylaws or other documents relating to the establishment of a corporation?
Yes. The existence of a corporation depends entirely upon the law, and the documents that bring it into being secure legal rights. Consequently, the preparation of those documents involves the practice of law. A nonlawyer who prepares such documents for another in exchange for a fee engages in the unlicensed practice of law.
A corporation is a legal person, having "the same powers as an individual to do all things necessary or convenient to carry out its business and affairs...." O.C.G.A. §14-2-302. When properly formed and maintained, its existence is legally independent from those who created and own it. This independent status relative to the law is the raison d'être of the corporation, as the entity can insulate its shareholders, directors and officers from certain forms of liability. See, e.g., O.C.G.A. §§14-2-622(b), 14-2-830(d), and 14-2-842(d). The corporation owes its existence entirely to the operation of the law, as "[a] corporation, considered in itself... is, in fact, a myth, a fiction, and has no existence but in the imagination of the law." Loudon v. Coleman, 59 Ga. 653, 655 (1877). Since a corporation's existence is utterly tied to and dependent upon the law, the documents that bring it into being and define its parameters are documents that serve to secure legal rights.
The practice of law in Georgia is defined, in part, as "[t]he preparation of legal instruments of all kinds whereby a legal right is secured" and "[a]ny action taken for others in any matter connected with the law." O.C.G.A. §§15-19-50(3) and 15-19-50(6). See also Huber v. State, 234 Ga. 357, 358 (1975). The documents referenced in the question above are designed to bring a corporation into existence. Once they are filed with the Georgia Secretary of State, they confer rights and impose obligations under applicable state and federal law. In view of the foregoing, the preparation of the documents involves the practice of law. The Committee notes that its determination in this regard is consistent with the superior court orders entered into the record of the hearing conducted in this matter.
The preceding analysis does not exhaust the issue. Individuals have the general right to pro se representation. Ga. Const. (1983), Art. 1, Sec. 1, Para. 12. This right to handle one's personal legal affairs extends beyond the narrow confines of court proceedings. See, e.g., In re UPL Advisory Opinion 2003-2, 277 Ga. 472, 473 n.2 (2003). Under Georgia law, those who act on their own behalf are free to prepare those documents they deem necessary to effectuate a pro se incorporation.
O.C.G.A. §15-19-52 states, in part, that no person shall "be prohibited from drawing any legal instrument for another person, firm, or corporation, provided it is done without fee and solely at the solicitation and the request and under the direction of the person, firm, or corporation desiring to execute the instrument." Accordingly, a nonlawyer who assists another within the scope of O.C.G.A. §15-19-52 does not engage in the unlicensed practice of law. Moreover, an employee of an attorney acting within the ambit of O.C.G.A. §15-19-54 does not engage in the unlicensed practice of law.
During the hearing, the Committee heard testimony indicating that there are nonlawyers who, for third parties and in exchange for a fee, prepare documents relating to the establishment of Georgia corporations. The Committee finds that this activity does constitute the unlicensed practice of law. As noted above, O.C.G.A. §15-19-52 allows a nonlawyer to assist another with regard to the drawing of legal instruments. The permissible degree of assistance, however, is not unlimited, and is partially predicated upon the assistance being rendered on a noncommercial basis. The proponents of such activity have failed to direct the Committee to any provision of Georgia law authorizing nonlawyers to deliver commercial legal services to Georgia residents. They have also failed to explain why such activity is not prohibited by O.C.G.A. §§15-19-51(a)(3), 15-19-51(a)(4) or 15-19-51(a)(8). In contradistinction to this fact, the Supreme Court of Georgia has, when discussing the delivery of legal services in another context, explicitly distinguished between delivering those services as part of "a professional service," as opposed to their delivery though "a purely commercial enterprise." In re UPL Advisory Opinion 2003-2, 277 Ga. at 473-474 (2003). The Court has indicated that legal services are to be provided by duly licensed and regulated Georgia attorneys.
"The Secretary of State has the power reasonably necessary to perform the duties required of him" regarding the administration of the laws relating to corporations. O.C.G.A. §14-2-130. This opinion does not, of course, in any way impinge upon the Secretary of State's prerogative to disseminate information under O.C.G.A. §14-2-121, or otherwise act in a way consistent with his legal duties as set out by statute, rule or applicable law.
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