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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION : 

: No. 93-416 

of : 

: September 17, 1993 

DANIEL E. LUNGREN : 

Attorney General : 

: 

GREGORY L. GONOT : 

Deputy Attorney General : 

: 

THE HONORABLE GARY T. YANCEY, DISTRICT ATTORNEY, COUNTY OF 

CONTRA COSTA, has requested an opinion on the following question: 

Under what circumstances, if any, does a statutory form power of attorney provide

an exception to the prohibition against practicing law without a license? 

CONCLUSION 

A statutory form power of attorney does not provide an exception to the prohibition

against practicing law without a license. 

ANALYSIS 

This inquiry requires an examination of two different statutes: Civil Code section 

2494,1

 which sets forth the powers granted by a statutory form power of attorney,2 and Business and 

Professions Code section 6125, which prohibits the unlicensed practice of law. The question

presented for resolution is whether a non-lawyer, acting on the basis of a power of attorney signed

by his or her client and properly witnessed, may engage in the practice of law on behalf of the client.

We conclude that the powers granted by section 2494 do not authorize the unlicensed practice of

law. 

1

All undesignated section references hereafter are to the Civil Code. 

2

The statutory form power of attorney is a standardized method by which a power of attorney

may be created; it is not the exclusive method. (See § 2481.) 

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Business and Professions Code section 6125 is part of the State Bar Act (Bus. & Prof.

Code, §§ 6000-6228) and states: "No person shall practice law in California unless the person is an 

active member of the State Bar." The unauthorized practice of law is a misdemeanor. (§ 6126.) In 

Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 542, the practice of law was described as follows: 

"`"[A]s the term is generally understood, the practice of law is the doing and

performing services in a court of justice in any manner depending therein throughout

its various stages and in conformity with the adopted rules of procedure. But in a 

larger sense it includes legal advice and counsel and the preparation of legal

instruments and contracts by which legal rights are secured although such matter

may or may not be depending in court."'" 

The Baron definition of the practice of law is in agreement with more recent cases. (See In re Utz 

(1989) 48 Cal.3d 468, 482-483; Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d

724, 730; Bluestein v. State Bar (1974) 13 Cal.3d 162, 173-174; People v. Landlords Professional 

Services (1989) 215 Cal.App.3d 1599, 1604-1608.) 

Section 2494, in contrast, is part of the Uniform Statutory Form Power of Attorney

Act (§§ 2475-2499.5; hereafter "Act"). The Act sets forth precise powers granted for a variety of

specified categories, one of which is for "claims and litigation." The powers pertaining to that

category are contained in section 2494, which states: 

"In a statutory form power of attorney, the language with respect to claims

and litigation empowers the agent to do all of the following: 

"(a) Assert and prosecute before a court or administrative agency a claim,

claim for relief, cause of action, counterclaim, cross-complaint, or offset, and defend

against an individual, a legal entity, or government, including suits to recover

property or other thing of value, to recover damages sustained by the principal, to

eliminate or modify tax liability, or to seek an injunction, specific performance, or

other relief. 

"(b) Bring an action to determine adverse claims, intervene in litigation, and

act as amicus curiae. 

"(c) In connection with litigation: 

"(1) Procure an attachment, garnishment, libel, order of arrest, or other

preliminary, provisional, or intermediate relief and use any available procedure to

effect, enforce, or satisfy a judgment, order, or decree. 

"(2) Perform any lawful act, including acceptance of tender, offer of

judgement, admission of facts, submission of a controversy on an agreed statement

of facts, consent to examination before trial, and binding the principal in litigation. 

"(d) Submit to arbitration, settle, and propose or accept a compromise with

respect to a claim or litigation. 

"(e) Waive the issuance and service of process upon the principal, accept

service of process, appear for the principal, designate persons upon whom process

directed to the principal may be served, execute and file or deliver stipulations on the

principal's behalf, verify pleadings, seek appellate review, procure and give surety 

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and indemnity bonds, contract and pay for the preparation and printing of records

and briefs, receive and execute and file or deliver a consent, waiver, release, 

confession of judgment, satisfaction of judgment, notice, agreement, or other

instrument in connection with the prosecution, settlement, or defense of a claim or

litigation. 

"(f) Act for the principal with respect to bankruptcy or insolvency

proceedings, whether voluntary or involuntary, concerning the principal or some

other person, or with respect to a reorganization proceeding, or with respect to an

assignment for the benefit of creditors, receivership, or application for the

appointment of a receiver or trustee which affects an interest of the principal in

property or other thing of value. 

"(g) Pay a judgment against the principal or a settlement made in connection

with litigation and receive and conserve money or other thing of value paid in

settlement of or as proceeds of a claim or litigation." 

In determining whether the provisions of section 2494 constitute an exception to the

prohibition against the unauthorized practice of law, we first consider the distinction between acting

as an "attorney in fact" and acting as an "attorney at law." This distinction was explained in People

ex rel. Dept. of Public Works v. Malone (1965) 232 Cal.App.2d 531, where the court addressed the

issue of whether an agent, by virtue of a special power of attorney, may participate in litigation and

stipulate to a judgment on behalf of his principal. The court distinguished the two situations as 

follows: 

". . . `As a general rule, a person may properly appoint an agent to do the

same acts and to achieve the same legal consequences by the performance of an act

as if he had acted personally, unless public policy or the agreement with the principal

requires personal performance; unless the agreement to do an act, or the doing of the

act itself, is criminal, tortious, or otherwise opposed to public policy, in which case

the appointment is illegal; . . . ' 

"In 3 American Jurisprudence Second, Agency, section 23, page 433, the

basic conceptions of attorney at law and attorney in fact are thus contrasted: `. . . the 

person holding a power of attorney is known and designated as an "attorney in fact,"

thus distinguishing such person from an attorney at law.' 

"A power of attorney does not permit an agent to act as an attorney at law.

If the rule were otherwise, the State Bar Act could be relegated to contempt by any

layman who secured from his principal an ordinary power of attorney, for the

purpose of representing him in pending litigation. 

"An attorney at law is different from an attorney in fact by definition and by

general customary treatment. . . . " (Id., at pp. 536-537.) 

Thus, at the time of the enactment of section 2494 in 1990 (Stats. 1990, ch. 986, § 3) and its

predecessor, former section 2468, in 1984 (Stats. 1984, ch. 602, § 1), the rule was that a power of

attorney could not be used as a device to allow an unlicensed agent to engage in the practice of law. 

Whether the rule set forth in Malone was abrogated or altered by the addition of

section 2494 is a matter of statutory construction. As stated in Dyna-Med, Inc. v. Fair Employment

& Housing Com. (1987) 43 Cal.3d 1379, 1386-1387: 

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"[O]ur first task in construing a statute is to ascertain the intent of the

Legislature so as to effectuate the purpose of the law. In determining such intent, a

court must look first to the words of the statute themselves, giving to the language

its usual, ordinary import . . . . The words of the statute must be construed in 

context, keeping in mind the statutory purpose, and statutes or statutory sections

relating to the same subject must be harmonized, both internally and with each other,

to the extent possible. [Citations.] Where uncertainty exists consideration should

be given to the consequences that will flow from a particular interpretation.

[Citation.] Both the legislative history of the statute and the wider historical

circumstances of its enactment may be considered in ascertaining the legislative

intent. [Citation.] A statute should be construed whenever possible so as to preserve

its constitutionality. [Citations.]"3 

Looking at the plain language of section 2494, we observe that the powers specified

therein allow the agent to bind the principal in legal matters pertaining to claims and litigation;

whatever legal posture could be assumed by the principal, the agent may also assume on his or her

behalf. However, none of the enumerated powers necessarily entails the practice of law as that term

has been defined by the courts (see People v. Landlords Professional Services, supra, 215 

Cal.App.3d at pp. 1604-1608), and nothing in the language of the statute allows the agent to

undertake such functions as preparing legal pleadings and arguing matters before a judge or jury.

We note in this regard that section 2494 authorizes the agent to "verify pleadings" and to "contract

and pay for the preparation . . . of . . . briefs. . . . " If the agent's powers with regard to the

preparation of legal pleadings and briefs were plenary, the Legislature presumably would not have

specified the more limited acts of verifying pleadings and paying for briefs. Furthermore, in 

connection with litigation, section 2494 empowers the agent to "[p]erform any lawful act." Under 

Business and Professions Code section 6125, it is not lawful for an unlicensed person to engage in

the practice of law. 

An examination of the possible consequences in allowing the use of a statutory form

power of attorney as a basis for engaging in the practice of law supports the conclusion that section

2494 should not be interpreted as constituting an exception to Business and Professions Code section

6125. In Merco Constr. Engineers, Inc. v. Municipal Court, supra, 21 Cal.3d 724, the court stated: 

". . . formal rules of procedure and evidence are to be observed by representatives of the parties, and

the court is entitled to expect to be aided in resolution of the issues by presentation of the cause

through qualified professionals rather than a lay person." (Id., at p. 732.) If a power of attorney

could authorize the practice of law by an unlicensed person, disbarred attorneys and others who have

failed to pass the bar examination could, as found in Merco: 

". . . hire themselves out on a part-time basis to a number of [clients], creating

a cadre of unprofessional practitioners. Unlike members of the State Bar, they would

not be subject to professional rules of conduct nor be required to adhere to ethical

standards established by any governmental or professional agency." (Ibid.) 

Such consequences in permitting the statutory form of power of attorney to be used as a means of

practicing law militate strongly against an expansive interpretation of section 2494. 

3

Also applicable here is "the settled rule that `legislative enactments should not be construed to

overthrow long-standing principles of law unless such an intention is clearly shown by express

declaration or necessary implication.'" (People v. Pitts (1990) 223 Cal.App.3d 606, 870.) 

4. 93-416
 
 

 

Indeed, interpreting section 2494 so as to allow the unlicensed practice of law could

call into serious question the statute's constitutionality. In Merco Constr. Engineers, Inc. v. 

Municipal Court, supra, 21 Cal.3d 724, a corporation sought to appear in a civil action through a

corporate officer who was not an attorney. The corporation relied on a statutory provision allowing

corporations to appear in municipal court through a non-attorney director, officer, or employee. The 

statute was found by the Supreme Court to be in conflict with "the inherent power of this court to

admit attorneys to the practice of law" (id., at p. 728), because "when the matter at issue involves

minimum standards for engaging in the practice of law, it is this court and not the Legislature which

is final policy maker" (id., at p. 731).4 The court ruled that "the Legislature cannot constitutionally

vest in a person not licensed to practice law the right to appear in a court of record in behalf of

another person, including a corporate entity." (Id., at p. 727.) In accordance with established 

principles of statutory construction, section 2494 may not be interpreted in a fashion that would

render it unconstitutional. 

Although the preparation of legal pleadings and briefs may be undertaken by a person

acting in propria persona, such activity cannot properly be considered the practice of law since there

is no relationship with a client and no rendering of legal advice. If a person is not practicing law

when representing himself or herself, the power to practice law cannot be transferred by executing

a power of attorney. 

Finally, we note the comments of the California Law Revision Commission5

 relative 

to the general effect of the statutory scheme which contains section 2494: 

"A general effect of this article is that the agent (attorney in fact) can exercise

authority subject to the same conditions and limitations as the principal. . . . But all 

authority is subject to conditions of fact and law that exist outside the chapter. For 

example, a collection agency could not escape regulation by acting under this power

of attorney." (Recommendation Relating to Uniform Statutory Form Power of

Attorney Act (Dec. 1989) 20 Cal. Law Revision Com. Rep. (1990) p. 401.) 

Similarly, the prohibition of Business and Professions Code section 6125 would be an "outside"

condition of law that may not be circumvented by use of the statutory form power of attorney. 

We conclude that the statutory form power of attorney does not provide an exception

to the prohibition against practicing law without a license. 

4

As noted by the Supreme Court in Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329,

338-339: 

"Under the State Bar Act (Bus. & Prof. Code, § 6000 et seq.), the State Bar

has no power to admit individuals to the practice of law nor to suspend or disbar

them. The act empowers the bar to certify a candidate for admission, or to

recommend suspension or disbarment for misconduct but `[f]inal action can only be 

taken by this court.'" 

5

The California Law Revision Commission recommended the enactment of sections 2475-2499.5, 

and section 2494 was adopted as proposed by the commission. The commission's interpretive

comments thus carry considerable weight as an indicator of legislative intent. (See Brian W. v. 

Superior Court (1978) 20 Cal.3d 618, 623 ["Explanatory comments by a law revision commission

are persuasive evidence of the intent of the Legislature in subsequently enacting its

recommendations into law."].) 

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