Company's motion to set aside bond forfeiture was UPL.

Byline: David Donovan

A motion to set aside the forfeiture of a bail bond constitutes the practice of law, and so a surety's corporate officer wasn't authorized to sign and file a motion to set aside a forfeiture on the surety's behalf, the North Carolina Court of Appeals has ruled in a case of first impression.

1st Atlantic Surety Company, through its bail agent, posted a bond securing a defendant's release from jail pending disposition of his criminal charges in Granville County Superior Court. The defendant failed to appear in court, and the court issued a bond forfeiture notice. 1st Atlantic moved to set aside the bond forfeiture in a motion signed on its behalf by one of its corporate officers.

The Granville County Board of Education objected to the motion (In North Carolina, funds from bail forfeitures are given to local school districts, making them the parties with the standing to challenge motions to set aside forfeitures), arguing that because the corporate officer was neither a bail agent nor a licensed attorney, he wasn't authorized to sign the motion on 1st Atlantic's behalf. The trial court agreed and denied the motion and sanctioned 1st Atlantic in the amount of $1,000.

1st Atlantic appealed, and in a unanimous March 17 opinion written by Judge Allegra Collins, the Court of Appeals reversed the imposition of the sanction but agreed with the trial court that the company had engaged in the unauthorized practice of law by allowing its corporate officer to sign and file the motion.

Collins noted that state law expressly authorizes a surety to make a motion to set aside a bond forfeiture, but doesn't expressly indicate whether such motion may or must be made by an attorney. The general rule, however, is that a corporation must be represented by a licensed attorney and can't proceed pro se, so the question for the court was whether signing and filing a motion to set aside a bond forfeiture constitutes the practice of lawand the panel concluded that it clearly did.

By law, a motion to set aside a bond forfeiture is "a written motion that a forfeiture be set aside to be filed in the office of the clerk of superior court." As a result, such a motion is a "legal document" and a "petition for use in" court as contemplated by the state law banning the practice of law by corporations, and so the corporate officer wasn't authorized to sign and file the motion on the company's behalf, Collins wrote.

1st Atlantic argued that the case was...