Attorney General’s Office Closes Investigation Into The Unauthorized Practice Of Law Without Further Action
The Vermont Attorney General’s Office has closed its investigation into a complaint about Annette Smith’s actions in various proceedings before the Public Service Board (PSB). The Office has closed the investigation without further action.
In December 2015 the Office received a complaint regarding Ms. Smith alleging that her conduct in various matters before the PSB constituted the unauthorized practice of law. Specifically, Ms. Smith was accused of regularly “providing legal advice to parties in proceedings before the Public Service Board, as well as helping to draft pleadings for those parties.” The complaint also represented that the minutes of an October 26, 2015, Town of Morgan Selectboard meeting characterized a proposed payment to Annette Smith as “attorney compensation.”
Pursuant to the rules of the Vermont Supreme Court, the unauthorized practice of law is punishable as criminal contempt of court. The prohibition of the unauthorized practice is intended to protect the public and society, not lawyers. The most recent definition articulated by the Vermont Supreme Court defines the practice of law as the furnishing “to another advice or service under circumstances which imply the possession and use of legal knowledge and skill.” In re Welch, 123 Vt. 180, 182 (1962).
By statute, the PSB is defined as a court of record and has all the powers of a trial court in determining matters within its jurisdiction, including the conduct of parties and interested persons that appear before it. Neither the PSB nor the Vermont Supreme Court have complained to this Office regarding Ms. Smith’s conduct. The complainant has not alleged that any of Ms. Smith’s conduct has harmed any individual.
The allegations regarding Ms. Smith fell in three broad categories – (1) she sought to represent individuals in proceedings before the PSB, (2) she sought or obtained “attorney compensation” from the Town of Morgan, and (3) she consulted with and prepared and filed pleadings for persons in PSB proceedings.
Regarding the first allegation, the record reveals that Ms. Smith sought to intervene in a matter pending at the PSB on behalf of her organization – Vermonters for a Clean Environment. The Vermont Supreme Court has recognized that in certain circumstances non-attorneys may represent organizations in judicial proceedings. Vermont Agency of Natural Resources v. Upper Valley Regional Landfill, 159 Vt. 454, 458 (1992). The record reveals that the PSB offered Ms. Smith and her organization the opportunity to file a friend of the court pleading in the matter. Thus, the PSB clearly did not oppose Ms. Smith’s participation as a non-party.
The complainant also alleges that Ms. Smith had sought or obtained “attorney compensation” from the Town of Morgan. Information obtained from the Town as part of this investigation establishes that at no time did Ms. Smith represent herself to be an attorney or seek compensation of any kind from the Town as an attorney or otherwise. Additionally, it does not appear that the Town has, in fact, paid her for services rendered to the Town. This Office concludes that there is no merit to this allegation.
Finally, with respect to the third category of allegations, the Vermont Supreme Court’s definition of the practice of law is not limited to actual appearances before judicial or quasi-judicial tribunals, but has been interpreted to extend to outside activities. This 54-year old definition does not, however, reflect the modern reality of advocacy before the growing number of judicial and quasi-judicial boards and commissions that have been created since its adoption. By way of example, a rule of the Natural Resources Board Act allows a person to be represented by a non-attorney while the PSB allows an organization, but not an individual, to be so represented. Clarification of the scope of the practice of law is needed. Any definition of the practice of law must recognize the diversity of advocacy before different forums at the state and local levels, should not abridge First Amendment rights, and should insure that Vermonters have access to justice.
This Office considers the matter closed.
Published: Feb 8, 2016
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