A power of attorney does not give the holder the right to represent a grievant in a lawyer disciplinary proceeding.
That is the import of an opinion released by the Committee on the Unauthorized Practice of Law on March 12.
The committee said that while the designation may empower an agent to pursue claims, and make decisions such as whether to settle, it does not authorize him to act as a lawyer.
The nonlawyer in the case that prompted the inquiry argued that the grievant allowed him to act as agent through the written instrument.
The committee, in Opinion 50, said the status "attorney-in-fact" in the power of attorney statute, N.J.S.A. 46:2B-8.2a, merely allows one "to perform certain acts on behalf of a principal."
The committee said its decision was consistent with those in New Jersey and other jurisdictions.
In Kasharian v. Wilentz, 93 N.J. Super. 479 (1967), for example, the Appellate Division rejected an attempt by an administrator ad prosequendum to file a wrongful-death suit, saying "nominal representatives or even active fiduciaries of the persons in beneficial interest, not themselves lawyers, should not be permitted to conduct legal proceedings in court involving the rights or liabilities of such persons without representation by attorneys duly qualified to practice law."
The committee also cited rulings from state courts in Ohio, New York, Maryland, Minnesota, Arizona, Missouri and Alaska that similarly limit the authority of people with powers of attorney.
To hold otherwise would expose the public to people lacking in legal training and not bound by the Rules of Professional Conduct, the panel said.
It also would "interfere with the orderly administration of justice and judges’ expectations that representatives appearing in court will act ethically."
In addition, it would "abrogate New Jersey’s licensing and admission requirements."
UPL Committee Chairman Charles Lizza says his panel has heard from several people who think the designation allows them to represent the principal in judicial forums.
"It was a recurring issue that the committee thought should be addressed and clarified so that the public is aware what the limitations are," says Lizza, of Saul Ewing in Newark.
"Given that it’s called power of attorney, people in the public may misinterpret that term," he adds.
Michael Ambrosio, who teaches legal ethics at Seton Hall University School of Law, agrees with the committee.
"It simply clarifies that merely because the word attorney is used with regard to the power of attorney" does not mean the holder "can engage in acts that constitute the practice of law," Ambrosio says.
Under a January 2012 amendment to N.J.S.A. 2C:21-22, the unauthorized practice of law went from a disorderly persons offense to a fourth-degree crime, carrying a potential penalty of up to 18 months in jail.
But if the person also derives a benefit, causes injury or creates a false impression of licensure, it becomes a third-degree offense punishable by three to five years in prison.