State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_84 > GS_84-5

§ 84‑5.  Prohibition asto practice of law by corporation.

(a)        It shall beunlawful for any corporation to practice law or appear as an attorney for anyperson in any court in this State, or before any judicial body or the NorthCarolina Industrial Commission, Utilities Commission, or the EmploymentSecurity Commission, or hold itself out to the public or advertise as beingentitled to practice law; and no corporation shall organize corporations, ordraw agreements, or other legal documents, or draw wills, or practice law, orgive legal advice, or hold itself out in any manner as being entitled to do anyof the foregoing acts, by or through any person orally or by advertisement,letter or circular. The provisions of this section shall be in addition to andnot in lieu of any other provisions of Chapter 84. Provided, that nothing inthis section shall be construed to prohibit a banking corporation authorizedand licensed to act in a fiduciary capacity from performing any clerical,accounting, financial or business acts required of it in the performance of itsduties as a fiduciary or from performing ministerial and clerical acts in thepreparation and filing of such tax returns as are so required, or fromdiscussing the business and financial aspects of fiduciary relationships.Provided, however, this section shall not apply to corporations authorized topractice law under the provisions of Chapter 55B of the General Statutes ofNorth Carolina.

To further clarify theforegoing provisions of this section as they apply to corporations which areauthorized and licensed to act in a fiduciary capacity:

(1)        A corporationauthorized and licensed to act in a fiduciary capacity shall not:

a.         Draw wills or trustinstruments; provided that this shall not be construed to prohibit an employeeof such corporation from conferring and cooperating with an attorney who is nota salaried employee of the corporation, at the request of such attorney, inconnection with the attorney's performance of services for a client who desiresto appoint the corporation executor or trustee or otherwise to utilize thefiduciary services of the corporation.

b.         Give legal advice orlegal counsel, orally or written, to any customer or prospective customer or toany person who is considering renunciation of the right to qualify as executoror administrator or who proposes to resign as guardian or trustee, or to anyother person, firm or corporation.

c.         Advertise to performany of the acts prohibited herein; solicit to perform any of the actsprohibited herein; or offer to perform any of the acts prohibited herein.

(2)        Except as providedin subsection (b) of this section, when any of the following acts are to beperformed in connection with the fiduciary activities of such a corporation,said acts shall be performed for the corporation by a duly licensed attorney,not a salaried employee of the corporation, retained to perform legal servicesrequired in connection with the particular estate, trust or other fiduciarymatter:

a.         Offering wills forprobate.

b.         Preparing andpublishing notice of administration to creditors.

c.         Handling formalcourt proceedings.

d.         Drafting legalpapers or giving legal advice to spouses concerning rights to an elective shareunder Article 1A of Chapter 30 of the General Statutes.

e.         Resolving questionsof domicile and residence of a decedent.

f.          Handlingproceedings involving year's allowances of widows and children.

g.         Drafting deeds,notes, deeds of trust, leases, options and other contracts.

h.         Drafting instrumentsreleasing deeds of trust.

i.          Draftingassignments of rent.

j.          Drafting any formallegal document to be used in the discharge of the corporate fiduciary's duty.

k.         In matters involvingestate and inheritance taxes, gift taxes, and federal and State income taxes:

1.         Preparing and filingprotests or claims for refund, except requests for a refund based onmathematical or clerical errors in tax returns filed by it as a fiduciary.

2.         Conferring with taxauthorities regarding protests or claims for refund, except those based onmathematical or clerical errors in tax returns filed by it as a fiduciary.

3.         Handling petitionsto the tax court.

l.          Performing legalservices in insolvency proceedings or before a referee in bankruptcy or incourt.

m.        In connection withthe administration of an estate or trust:

1.         Making applicationfor letters testamentary or letters of administration.

2.         Abstracting orpassing upon title to property.

3.         Handling litigationrelating to claims by or against the estate or trust.

4.         Handling foreclosureproceedings of deeds of trust or other security instruments which are indefault.

(3)        When any of thefollowing acts are to be performed in connection with the fiduciary activitiesof such a corporation, the corporation shall comply with the following:

a.         The initial openingand inventorying of safe deposit boxes in connection with the administration ofan estate for which the corporation is executor or administrator shall behandled by, or with the advice of, an attorney, not a salaried employee of thecorporation, retained by the corporation to perform legal services required inconnection with that particular estate.

b.         The furnishing of abeneficiary with applicable portions of a testator's will relating to suchbeneficiary shall, if accompanied by any legal advice or opinion, be handledby, or with the advice of, an attorney, not a salaried employee of thecorporation, retained by the corporation to perform legal services required inconnection with that particular estate or matter.

c.         In matters involvingestate and inheritance taxes and federal and State income taxes, thecorporation shall not execute waivers of statutes of limitations without theadvice of an attorney, not a salaried employee of the corporation, retained bythe corporation to perform legal services in connection with that particularestate or matter.

d.         An attorney, not asalaried employee of the corporation, retained by the corporation to performlegal services required in connection with an estate or trust shall befurnished copies of inventories and accounts proposed for filing with any courtand proposed federal estate and North Carolina inheritance tax returns and, onrequest, copies of proposed income and intangibles tax returns, and shall beafforded an opportunity to advise and counsel the corporate fiduciaryconcerning them prior to filing.

(b)        Nothing in thissection shall prohibit an attorney retained by a corporation, whether or notthe attorney is also a salaried employee of the corporation, from representingthe corporation or an affiliate, or from representing an officer, director, oremployee of the corporation or an affiliate in any matter arising in connectionwith the course and scope of the employment of the officer, director, oremployee. Notwithstanding the provisions of this subsection, the attorneyproviding such representation shall be governed by and subject to all of theRules of Professional Conduct of the North Carolina State Bar to the sameextent as all other attorneys licensed by this State. (1931, c. 157, s. 2; 1937, c.155, s. 2; 1955, c. 526, s. 2; 1969, c. 718, s. 20; 1971, c. 747; 1997‑203,s. 1; 2000‑178, s. 8.)