Officers’ Applications for Investigative Orders and the Unauthorized Practice of Law

May a law enforcement officer submit an application for an investigative order to a judicial official, or does that constitute the unauthorized practice of law? The answer depends on the type of order sought, as a letter of caution issued last week by the State Bar’s Authorized Practice Committee reveals. The legal framework. In general, only members of the State Bar may practice law. G.S. 84-4. Practicing law is defined by statute to include “performing any legal service for any other person, firm or corporation,” and specifically to encompass “the preparation and filing of petitions for use in any court.” G.S. 84-2.1. While those provisions might seem to prohibit officers from seeking investigative orders, there is specific statutory authorization for officers to seek certain types of orders, such as for the installation of pen registers. G.S. 15A-262 (stating that “[a] law enforcement officer may make an application”). Officers may also apply for search warrants, even after charges have been brought, as I noted in this prior blog post. By contrast, it is clear that an officer may not seek a nontestimonial identification order, G.S. 15A-271 (providing that an order may be issued “upon the request of a prosecutor”), or a wiretap order, G.S. 15A-291 (requiring the Attorney General or his or her designee to seek an order). The State Bar’s letter. The letter is here. It is addressed to an officer who prepared and presented to a judge a motion “asking for an order to compel third parties to disclose financial [...]