I AM NOT A LAWYER, BUT I PLAY ONE ON THE …...land professionals to practice our profession, and is monitoring developments in these states, and more. Through the Regulatory and Legislative

I AM NOT A LAWYER, BUT I PLAY ONE

ON THE TELEPHONE

Presented by Curt Horne, CPL

Copyright 2011-2018 - Curtis D. Horne

DISCLAIMER

This presentation is designed to provide information with the understanding that neither Curt Horne nor NALTA are engaged in rendering legal services. Prior to actual application of any concept or theory contained this presentation, the consultation, counsel and assistance of a competent legal professional should be sought.


I AM NOT A LAWYER, BUT I PLAY ONE ON THE TELEPHONE

The Practice of Law Ethics The NALTA Code of Ethics Dealing with Landowners (Discussion) Questions or Comments


THE PRACTICE OF LAW


THE PRACTICE OF LAW

Most producing states do not have a statutory or regulatory definition of the practice of law, but rely upon case law and court decisions on a case by case basis.

However, the unauthorized practice of law is a crime in most states; in some jurisdictions it can be a felony.


THE PRACTICE OF LAW

When might a land professional be practicing law?

Interpretation of legal documents (deeds, leases, etc.) Determination of nature and quantity of interest in

real property Explanation of lease terms and provisions Offering advice on legal matters Preparation of legal documents


THE PRACTICE OF LAW


Preparing a title runsheet or “abstract” Drafting curative instruments Negotiating a farmin, farmout or JOA Drafting a JOA Providing other land services under contract, where

the land professional is not a party to the transaction


THE UPL ISSUE – WEST VIRGINIA

West Virginia State Bar Committee in Unlawful Practice of Law

Advisory Opinion 2007-01 November 29, 2007



“This opinion addresses the issue of whether any of a “Landman’s” traditional work involves the practice of law.”

“West Virginia does not have a precise and comprehensive definition of the practice of law, and it does not attempt to prescribe limits to the scope of that activity.”



“However, in West Virginia the following activity…is clearly defined as the unauthorized practice of law:

1. To undertake to advise another in any matter involving the application of legal principles to facts, purposes or desires;

2. To undertake to prepare for another legal instruments of any character;

3. To undertake to represent the interest of another before any judicial tribunal…”



“Are Landmen Practicing Law?

Assume that any non-lawyer was: 1. Interpreting documents found in a title search; 2. Locating heirs and having them sign quit claim

deeds and leases; 3. Offering advice to landowners and mineral rights

owners of their legal ownership interest and the meaning of contract language; or

4. Preparing operating agreements and similar contracts to be executed by other parties.”



“Could it be plainer that the Unlawful Practice Committee would not hesitate to find that the non-lawyer was engaged in the unauthorized practice of law?”



CONCLUSION

“…the work of a Landman is neither exempted or excepted from the West Virginia definition of the practice of law. Until the issue is addressed by the West Virginia Legislature, it is the recommendation of the Unlawful Practice Committee that Landmen perform the work, that seems to fit within the prohibition against the unauthorized practice of law, only under the direct supervision and control of an attorney licensed to practice law in West Virginia.”


CURRENT UPL CHALLENGES

Louisiana Wyoming Colorado New York Ohio Pennsylvania


THE UPL ISSUE AND AAPL

The American Association of Professional Landmen is dedicated to protecting the rights of land professionals to practice our profession, and is monitoring developments in these states, and more. Through the Regulatory and Legislative Affairs Committee, AAPL will hire lobbyists, submit comments and amicus briefs, and take whatever other action is deemed necessary in our defense.


ETHICS


THE GOLDEN RULE

All you need to know about ethics you learned in Sunday school:

“Do to others whatever you would have

them do to you.” Matthew 7:12


DEFINITION OF ETHICS

1. a system of moral principles: the ethics of a culture.

2. the rules of conduct recognized in respect to a particular class of human actions or a particular group, culture, etc.: medical ethics; Christian ethics; tribal ethics.

3. moral principles, as of an individual: His ethics forbade betrayal of a confidence.

4. that branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions and to the goodness and badness of the motives and ends of such actions.


RULES OF LIFE

1. God’s Law

2. Morals

3. Man’s Law

4. Ethics

5. Professional Ethics

6. Business Ethics


RULES OF LIFE

Listed in descending order of absoluteness: God’s law does not change, while business ethics

change the most. Listed in increasing order of man’s influence:

man does not influence God’s law, while he influences business ethics the most.


RULES OF LIFE

We do not decide what is right and wrong in the big sense. In areas where arbitrary rules are needed, we

determine the rules of the game. In most cases, we are safe in relying on the top of

the list.


RULES OF LIFE

The penalty for breaking the rules, absent forgiveness, is exclusion from the group:

Exclusion from the Kingdom Exclusion from society (incarceration)

Exclusion from a profession (loss of license)


PROFESSIONAL ETHICS

Some professional groups, such as doctors, lawyers and real estate agents, can prohibit the professional from practicing. These professions require a license to practice, which can be revoked or suspended for legal or ethical violations.


PROFESSIONAL ETHICS

Land professionals currently are not required to be licensed in any state, therefore, the worst punishment NALTA, NADOA, AAPL or local land associations can impose on a landman is expulsion from membership in the association. This does not prevent the guilty from practicing our profession.


PROFESSIONAL ETHICS

We as an association, and we as individuals, strive to enforce our rules of ethics on our peers in order to protect ourselves individually, in order to protect ourselves as a group of professionals, and in order to protect the public from unethical practices.


NALTA CODE OF ETHICS



NATIONAL ASSOCIATION OF LEASE AND TITLE ANALYSTS, INC.

BY-LAWS

AMENDED FEBRUARY 8, 2014

ARTICLE V - CODE OF ETHICS



The Code of Ethics shall be the basis of conduct, business principles and ideals of the members of “NALTA” and it shall be understood that the conduct of any member of “NALTA” inconsistent with the provisions set forth in this Article shall be considered unethical and said individual’s membership status shall be subject to review for possible disciplinary action as prescribed in Article VI of these By-laws.



It is the goal of “NALTA” to promote, maintain and enforce high standards of professional conduct and fair and honest dealings on the part of each “NALTA” member within the industry. It is the desire of “NALTA” to continually improve and educate its members so that they maintain such high standards and principles, as set out herein below.



1. Members shall adhere to any and all provisions of the By-laws, Code of Ethics and any rule, regulation, or order subsequently adopted by “NALTA”.

2. Members shall avoid engaging in any act or conduct which causes disrespect for or a lack of confidence in “NALTA” or its members.



3. It shall be the duty of Members at all times to promote and in a fair and honest manner, represent the industry to the public at large with the view of establishing and maintaining good will between the industry and the public.

4. In their professional dealings, Members shall conduct themselves in a manner consistent with fairness and honesty, to maintain the respect of the public.



5. Competition among those engaged in the energy industry shall be kept at a high level with careful adherence to established rules of honesty, fairness and courtesy. Members shall not betray their employer’s or client’s trust by directly turning confidential information into personal gain.

6. Members shall exercise the utmost good faith and loyalty to their employer or client and shall not act adversely or engage in any enterprise in conflict with the interest of his employer or client.



7. Members shall represent to others their area of expertise and shall not represent themselves to be skilled in professsional areas in which they are not qualified.

8. Any Member is charged with unethical conduct or asked to present evidence in any disciplinary proceeding or investigation, he shall place all pertinent facts before the “NALTA” Ethics Committee Chairman.



Members shall not participate in conduct which might cause them to be convicted, adjudged or otherwise recorded as guilty by any court of competent jurisdiction of any felony, any offense involving fraud as an essential element, or any other serious crime.



Elements of fraud: Material representation Known to be false Intended to deceive Relied upon by the other party Induced action Caused damage to the other party


DEALING WITH LANDOWNERS


HOW TO ANSWER A QUESTION

A direct question can be answered in one of

three ways: Tell the truth Say “I don’t know” (but only if you don’t know) Say “I am sorry, but that is confidential” (but only

if it is truly confidential)



First and foremost, follow company policy.

In answering a question, stick to the

pertinent facts:

Tell the truth (confidential?) Do not offer advice Do not speculate Don’t be afraid to say “I don’t know”


SITUATIONS FOR DISCUSSION

Handling lessors who call for mineral ownership information (TO, MOR, LPR) Dealing with royalty/mineral buyers Verifying caller identity (policy?) Answering questions regarding drilling plans,

potential production, decline rates, etc. (refer to landman?) Lease has an option to extend Other situations?


QUESTIONS?

[email protected] (713) 225-6700


1

I AM NOT A LAWYER,BUT I PLAY ONE

ON THE TELEPHONE

Presented byCurt Horne, CPL


DISCLAIMER

This presentation is designed to provide information with the understanding that neither Curt Horne nor NALTA are engaged in rendering legal services. Prior to actual application of any concept or theory contained this presentation, the consultation, counsel and assistance of a competent legal professional should be sought.


I AM NOT A LAWYER,BUT I PLAY ONE ON THE TELEPHONE

The Practice of LawEthicsThe NALTA Code of EthicsDealing with Landowners (Discussion)Questions or Comments


2

THE PRACTICE OF LAW


THE PRACTICE OF LAW

Most producing states do not have a statutory or regulatory definition of the practice of law, but rely upon case law and court decisions on a case by case basis.

However, the unauthorized practice of law is a crime in most states; in some jurisdictions it can be a felony.


THE PRACTICE OF LAW


Interpretation of legal documents (deeds, leases, etc.)

Determination of nature and quantity of interest in real property

Explanation of lease terms and provisions Offering advice on legal matters Preparation of legal documents


3

THE PRACTICE OF LAW


Preparing a title runsheet or “abstract” Drafting curative instruments Negotiating a farmin, farmout or JOA Drafting a JOA Providing other land services under contract, where

the land professional is not a party to the transaction



West Virginia State BarCommittee in Unlawful Practice of Law

Advisory Opinion 2007-01November 29, 2007



“This opinion addresses the issue of whether any of a “Landman’s” traditional work involves the practice of law.”

“West Virginia does not have a precise and comprehensive definition of the practice of law, and it does not attempt to prescribe limits to the scope of that activity.”


4


“However, in West Virginia the following activity…is clearly defined as the unauthorized practice of law:

1. To undertake to advise another in any matter involving the application of legal principles to facts, purposes or desires;

2. To undertake to prepare for another legal instruments of any character;

3. To undertake to represent the interest of another before any judicial tribunal…”



“Are Landmen Practicing Law?

Assume that any non-lawyer was:1. Interpreting documents found in a title search;2. Locating heirs and having them sign quit claim deeds and leases;3. Offering advice to landowners and mineral rights owners of their legal ownership interest and the meaning of contract language; or4. Preparing operating agreements and similar contracts to be executed by other parties.”



“Could it be plainer that the Unlawful Practice Committee would not hesitate to find that the non-lawyer was engaged in the unauthorized practice of law?”


5


CONCLUSION

“…the work of a Landman is neither exempted or excepted from the West Virginia definition of the practice of law. Until the issue is addressed by the West Virginia Legislature, it is the recommendation of the Unlawful Practice Committee that Landmen perform the work, that seems to fit within the prohibition against the unauthorized practice of law, only under the direct supervision and control of an attorney licensed to practice law in West Virginia.”


CURRENT UPL CHALLENGES

Louisiana Wyoming Colorado New York Ohio Pennsylvania


THE UPL ISSUE AND AAPL

The American Association of Professional Landmen is dedicated to protecting the rights of land professionals to practice our profession, and is monitoring developments in these states, and more. Through the Regulatory and Legislative Affairs Committee, AAPL will hire lobbyists, submit comments and amicus briefs, and take whatever other action is deemed necessary in our defense.


6

ETHICS


THE GOLDEN RULE

All you need to know about ethics you learned in Sunday school:

“Do to others whatever you would have them do to you.”

Matthew 7:12


DEFINITION OF ETHICS

1. a system of moral principles: the ethics of a culture.

2. the rules of conduct recognized in respect to a particular class of human actions or a particular group, culture, etc.: medical ethics; Christian ethics; tribal ethics.

3. moral principles, as of an individual: His ethics forbade betrayal of a confidence.

4. that branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions and to the goodness and badness of the motives and ends of such actions.


7

RULES OF LIFE

1. God’s Law

2. Morals

3. Man’s Law

4. Ethics

5. Professional Ethics

6. Business Ethics


RULES OF LIFE

Listed in descending order of absoluteness: God’s law does not change, while business ethics change the most.

Listed in increasing order of man’s influence: man does not influence God’s law, while he influences business ethics the most.


RULES OF LIFE

We do not decide what is right and wrong in the big sense.

In areas where arbitrary rules are needed, we determine the rules of the game.

In most cases, we are safe in relying on the top of the list.


8

RULES OF LIFE

The penalty for breaking the rules, absent forgiveness, is exclusion from the group:

Exclusion from the Kingdom

Exclusion from society (incarceration)

Exclusion from a profession (loss of license)


PROFESSIONAL ETHICS

Some professional groups, such as doctors, lawyers and real estate agents, can prohibit the professional from practicing. These professions require a license to practice, which can be revoked or suspended for legal or ethical violations.


PROFESSIONAL ETHICS

Land professionals currently are not required to be licensed in any state, therefore, the worst punishment NALTA, NADOA, AAPL or local land associations can impose on a landman is expulsion from membership in the association. This does not prevent the guilty from practicing our profession.


9

PROFESSIONAL ETHICS

We as an association, and we as individuals, strive to enforce our rules of ethics on our peers in order to protect ourselves individually, in order to protect ourselves as a group of professionals, and in order to protect the public from unethical practices.





NATIONAL ASSOCIATION OF LEASE AND TITLE ANALYSTS, INC.

BY-LAWS

AMENDED FEBRUARY 8, 2014

ARTICLE V - CODE OF ETHICS


10


The Code of Ethics shall be the basis of conduct, business principles and ideals of the members of “NALTA” and it shall be understood that the conduct of any member of “NALTA” inconsistent with the provisions set forth in this Article shall be considered unethical and said individual’s membership status shall be subject to review for possible disciplinary action as prescribed in Article VI of these By-laws.



It is the goal of “NALTA” to promote, maintain and enforce high standards of professional conduct and fair and honest dealings on the part of each “NALTA” member within the industry. It is the desire of “NALTA” to continually improve and educate its members so that they maintain such high standards and principles, as set out herein below.



1. Members shall adhere to any and all provisions of the By-laws, Code of Ethics and any rule, regulation, or order subsequently adopted by “NALTA”.

2. Members shall avoid engaging in any act or conduct which causes disrespect for or a lack of confidence in “NALTA” or its members.


11


3. It shall be the duty of Members at all times to promote and in a fair and honest manner, represent the industry to the public at large with the view of establishing and maintaining good will between the industry and the public.

4. In their professional dealings, Members shall conduct themselves in a manner consistent with fairness and honesty, to maintain the respect of the public.



5. Competition among those engaged in the energy industry shall be kept at a high level with careful adherence to established rules of honesty, fairness and courtesy. Members shall not betray their employer’s or client’s trust by directly turning confidential information into personal gain.

6. Members shall exercise the utmost good faith and loyalty to their employer or client and shall not act adversely or engage in any enterprise in conflict with the interest of his employer or client.



7. Members shall represent to others their area of expertise and shall not represent themselves to be skilled in professional areas in which they are not qualified.

8. Any Member is charged with unethical conduct or asked to present evidence in any disciplinary proceeding or investigation, he shall place all pertinent facts before the “NALTA” Ethics Committee Chairman.


12


Members shall not participate in conduct which might cause them to be convicted, adjudged or otherwise recorded as guilty by any court of competent jurisdiction of any felony, any offense involving fraud as an essential element, or any other serious crime.



Elements of fraud: Material representation Known to be false Intended to deceive Relied upon by the other party Induced action Caused damage to the other party


DEALING WITH LANDOWNERS


13


A direct question can be answered in one ofthree ways:

Tell the truth Say “I don’t know” (but only if you don’t know) Say “I am sorry, but that is confidential” (but only

if it is truly confidential)



First and foremost, follow company policy.In answering a question, stick to thepertinent facts:

Tell the truth (confidential?) Do not offer advice Do not speculate Don’t be afraid to say “I don’t know”


SITUATIONS FOR DISCUSSION

Handling lessors who call for mineral ownership information (TO, MOR, LPR)

Dealing with royalty/mineral buyers Verifying caller identity (policy?) Answering questions regarding drilling plans,

potential production, decline rates, etc. (refer to landman?)

Lease has an option to extend Other situations?


14

QUESTIONS?

[email protected](713) 225-6700


I AM NOT A LAWYER, BUT I PLAY ONE ON THE …...land professionals to practice our profession, and is monitoring developments in these states, and more. Through the Regulatory and Legislative

Documents