Can legal aid workers enter a migrant labor camp on the employer's property to talk to farmworkers about their legal rights?

Plain-English summary

Sheriff David Doughty of Northampton County asked then-Attorney General Mark Herring whether legal aid staff who walk onto a private migrant labor camp, without being formally retained as counsel by any individual worker, can be charged with criminal trespass under Va. Code § 18.2-119. The AG concluded that they cannot.

The opinion built on a 1979 Virginia AG opinion which had already concluded that "legal representatives" of migrant workers do not trespass merely by entering a labor camp to perform their work, relying on the New Jersey Supreme Court's well-known decision in State v. Shack (1971). The 2019 opinion read the term "legal representative" broadly to cover not just lawyers formally engaged for a specific case, but also legal aid staff who come to distribute information about legal rights and available services. Because those workers enter under a "bona fide claim of right," their entry was outside the reach of Virginia's willful-trespass statute.

The AG also noted that employers and camp operators could ask visitors to identify themselves and state their purpose, but could not impose advance-notice or other "overly burdensome" requirements designed to keep legal aid out.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia's criminal trespass statute, § 18.2-119, punishes anyone who goes onto land "after having been forbidden to do so" or remains after being told to leave. Virginia courts have read the statute to require a willful trespass; a person who enters under a sincere belief that they have a legal right to be there has a "bona fide claim of right" defense, as the Court of Appeals explained in Reed v. Commonwealth (1988).

The 1979 AG opinion that the 2019 opinion updates leaned heavily on State v. Shack, a 1971 New Jersey Supreme Court decision (note the New Jersey citation: 58 N.J. 297; A.2d denotes the Atlantic Reporter, not the U.S. Supreme Court). In Shack, a staff lawyer with a nonprofit legal aid program and a medical worker drove onto a farmer's property to assist migrant farmworkers. The New Jersey court held the lawyer's conduct was beyond the reach of New Jersey's trespass law and that the employer's real-property interest could not be used to bar workers from receiving aid available from government and charitable sources.

The federal Legal Services Corporation Act, 42 U.S.C. § 2996 and § 2996b, declares that there is a national need to provide "high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel," including representation and community education. The 2019 opinion read "legal representative" in the 1979 opinion to include legal aid staff carrying out either function, not just attorneys appointed for a specific client.

A separate federal statute, the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1821(c), requires farm labor contractors who provide migrant housing to give workers a written statement of the terms and conditions, if any, of occupancy.

Common questions

Q: Can a Virginia farm owner refuse to let any outsider enter a migrant labor camp on the property?
A: Under this opinion, no, not as a blanket rule. The owner could ask visitors to identify themselves and state their general purpose, but could not bar entry by legal aid representatives who were on the property in good faith to talk with workers about their rights.

Q: What if the legal aid visitor turned out to be wrong about whether the camp was even a migrant labor camp?
A: The opinion specifically addressed that scenario. A sincere, good-faith but mistaken belief that the property qualified as a migrant labor camp open to access still amounted to a bona fide claim of right, defeating the willful element of § 18.2-119.

Q: Did the visitor have to already represent the worker as a lawyer?
A: No, that was the point of the 2019 update. The AG said the visitor did not have to be formally appointed or retained as counsel for any specific worker or group. Outreach by a legal aid program, including handing out information about available services, was within scope.

Q: Could the employer require the legal aid visitor to give advance notice before showing up?
A: The 2019 opinion took the position that employers and camp operators could not place "overly burdensome" conditions on the visits, expressly citing advance notice as an example of what would be off-limits.

Q: What about workers being on the clock?
A: The opinion contemplated that legal aid representatives could speak with workers "during hours when the migrant workers are at their living quarters in the migrant labor camp and not working." It did not authorize visits that would interrupt work itself.

Q: Does any of this give the worker a private cause of action against the employer?
A: No, the opinion only addressed criminal trespass liability for the visitor. Civil claims for interference with worker access would have to be analyzed separately under federal labor law or state law.

Citations

The opinion relied on the 1979-1980 Virginia AG opinion at 391, State v. Shack, the Legal Services Corporation Act, the Migrant and Seasonal Agricultural Worker Protection Act, and a line of Virginia trespass cases recognizing the bona fide claim of right defense (Wise, O'Banion, Reed).

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2019/18-044-Doughty-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

Cynthia E. Hudson
Chief Deputy Attorney General

February 22, 2019

The Honorable David L. Doughty Jr.
Northampton County Sheriff
5211 The Hornes
Post Office Box 68
Eastville, Virginia 23347-0068

Dear Sheriff Doughty:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You ask whether representatives of a legal aid organization not appointed or retained as counsel to any individual or group may provide information about legal resources and services to migrant workers living in a migrant labor camp owned or controlled by the workers' employer. You also inquire whether any such individual would be subject to prosecution for criminal trespass.

Applicable Law and Discussion
A previous official advisory opinion of the Attorney General of Virginia ("1979 Opinion") concluded that legal representatives of migrant workers are not trespassing in violation of § 18.2-119 merely by entering a migrant labor camp in the performance of their duties.[1] The opinion uses the term "legal representatives" with reference to the Legal Services Corporation established under the federal Legal Services Corporation Act (LSCA). The opinion states, in part, that "[t]he declared purposes of Congress for the establishment of the Legal Services Corporation would be frustrated by denying access of legal representatives to migrant workers ...."[2] Among the declared purposes of the Legal Services Corporation as described in the LSCA is "to provide high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel."[3] The LSCA does not define the term "legal representative."

The 1979 Opinion also relies upon a 1971 New Jersey Supreme Court case, State v. Shack,[4] in which a staff attorney employed by a non-profit legal aid organization entered private property to communicate with migrant farmworkers who were employed and housed by a farmer.[5] The court held that the staff attorney's conduct was beyond the reach of the state's trespass statute.[6] In so ruling, the court made the following conclusions:

[W]e see no legitimate need for a right in the farmer to deny the worker the opportunity for aid available from federal, State, or local services, or from recognized charitable groups seeking to assist him. Hence representatives of these agencies and organizations may enter upon the premises to seek out the worker at his living quarters. So, too, the migrant worker must be allowed to receive visitors there of his own choice, so long as there is no behavior hurtful to others [....]

[W]e are mindful of the employer's interest in his own and in his employees' security. Hence he may reasonably require a visitor to identify himself, and also to state his general purpose if the migrant worker has not already informed him that the visitor is expected. But the employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens. These rights are too fundamental to be denied on the basis of an interest in real property and too fragile to be left to the unequal bargaining strength of the parties[....]

It follows that defendants here invaded no possessory right of the farmer-employer. Their conduct was therefore beyond the reach of the trespass statute.[7]

Both the conclusion and reasoning underpinning the 1979 Opinion were sound then and remain sound today. Since the issuance of the 1979 Opinion, the legislature has not enacted any relevant laws or amended any applicable statutes that would alter the conclusion reached therein. The legislature is presumed to have had knowledge of the Attorney General's opinions and interpretation of statutes, and the fact that it does not thereafter enact any laws altering such conclusions evinces legislative acquiescence in the Attorney General's view.[8] Additionally, no Virginia courts have issued contrary decisions.

Also, there is no implication in the 1979 Opinion or in the authorities cited therein that the term "legal representative" of migrant workers is limited to only those individuals formally appointed or retained as legal counsel by an individual or group. In fact, the references to the LSCA and Shack suggest that the terminology "legal representative" as used in the 1979 Opinion is more expansive and also encompasses representatives of legal aid organizations seeking to access and assist low income individuals and groups, including migrant workers living in a migrant labor camp. The opinion highlights the public policy need for migrant workers to have equal access to high quality legal assistance. Similarly, Shack highlights the public policy need to afford migrant workers an opportunity to access legal aid organizations seeking to provide legal assistance to a vulnerable population.

Legal assistance provided by civil legal aid programs includes not only legal representation by retained or appointed counsel but also free or low-cost access to legal information and advocacy for low-income individuals, including migrant workers.[9] Your request references a civil legal aid program that serves the same purpose as LSCA by providing free legal assistance to low-income populations in Virginia, including representation of individuals in legal proceedings and the provision of legal resources and counseling to migrant workers residing in migrant labor camps concerning their legal rights.

For these reasons, it is my opinion that the legal assistance provided by such a representative in the situation you describe falls within the intended scope of the term "legal representative" as used in the 1979 Opinion, in this situation a representative of a legal aid organization seeking to access migrant workers living in a migrant labor camp, for purposes of distributing information regarding legal resources and services. Therefore, legal aid representatives who enter migrant labor camp property for the purposes described in your inquiry do so under a bona fide claim of right, and it is well established that one who enters another's property under a bona fide claim of right has not committed a willful trespass under § 18.2-119.[10] That includes such representatives attempting to visit workers in locations they in good faith and sincerely, but mistakenly, believe are migrant labor camps open to access under law.[11]

Moreover, in accordance with the 1979 Opinion and authorities cited therein, such representatives may communicate freely with migrant workers during hours when the migrant workers are at their living quarters in the migrant labor camp and not working, and the owner, employer or other persons in control of the migrant labor camp may not interfere with or place unreasonable restrictions, such as advance notice or similar overly burdensome requirements, on those communications.[12]

Conclusion
Accordingly it is my opinion that representatives of a legal aid organization may access and provide information about legal resources and services to migrant workers living in a migrant labor camp owned or controlled by the workers' employer, whether or not formally appointed or retained as counsel to any particular individual or group.

It is further my opinion that legal aid representatives who enter migrant labor camp property for the purposes described in your inquiry do so under a bona fide claim of right, and one who enters another's property under a bona fide claim of right has not committed a willful trespass under § 18.2-119.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. 1979-1980 Op. Va. Att'y Gen. 391, 392.

2. Id. at 391.

3. 42 U.S.C. § 2996 (Congressional Findings and Declaration of Purpose in establishing the Legal Services Corporation):

(1) there is a need to provide equal access to the system of justice in our Nation for individuals who seek redress of grievances; (2) there is a need to provide high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel and to continue the present vital legal services program; (3) providing legal assistance to those who face an economic barrier to adequate legal counsel will serve best the ends of justice and assist in improving opportunities for low-income persons consistent with the purposes of this chapter; (4) for many of our citizens, the availability of legal services has reaffirmed faith in our government of laws; (5) to preserve its strength, the legal services program must be kept free from the influence of or use by it of political pressures; and (6) attorneys providing legal assistance must have full freedom to protect the best interests of their clients in keeping with the Code of Professional Responsibility, the Canons of Ethics, and the high standards of the legal profession.

See also 42 U.S.C. § 2996b (providing that the Legal Services Corporation is established "for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance").

4. 58 N.J. 297, 277 A.2d 369 (1971).

5. Id. at 300, 277 A.2d at 370. The court stated that staff attorney accompanied a medical worker to the property to do the following: (1) provide legal assistance to an injured migrant worker the medical worker was assisting, (2) talk to another migrant worker about a legal problem, and (3) distribute literature to inform migrant workers of assistance available to them under federal statutes. There is no indication that the staff attorney had been formally retained as legal counsel.

6. Id. at 307-08, 277 A.2d at 374-75.

7. Id. at 307-08, 277 A.2d at 374-75.

8. See Beck v. Shelton, 267 Va. 482, 492, 593 S.E.2d 195, 200 (2004).

9. U.S. DEP'T OF JUSTICE, Civil Legal Aid 101, https://www.justice.gov/atj/civil-legal-aid-101 (last visited Feb. 22, 2019) (The Department of Justice has provided guidance and examples of the types and forms of legal assistance available through civil legal aid programs. Types of legal assistance provided by such legal aid programs include assisting individuals' in securing access to basic necessities (e.g., government benefits, health care, or housing), personal safety and stability, and economic security. Forms of legal assistance include providing direct services in the form of legal advice or representation, as well as community education efforts to help individuals understand their rights and responsibilities and where they may seek legal assistance.)

10. See Wise v. Commonwealth, 98 Va. 837, 837, 36 S.E. 479, 479 (1900); O'Banion v. Commonwealth, 33 Va. App. 47, 55-56, 531 S.E.2d 599, 603 (2000); Reed v. Commonwealth, 6 Va. App. 65, 71, 366 S.E.2d 274, 278 (1988).

11. See Reed, 6 Va. App. at 71, 366 S.E.2d at 278 ("[T]he Virginia criminal trespass statute has been uniformly construed to require a willful trespass .... [O]ne cannot be convicted of trespass when one enters or stays upon the land under a bona fide claim of right. A good faith belief that one has a right to be on the premises negates criminal intent .... [A] bona fide claim of right is a sincere, although perhaps mistaken, good faith belief that one has some legal right to be on the property. The claim need not be one of title or ownership, but it must rise to the level of authorization.") (citation omitted); see also Wise v. Commonwealth, 98 Va. 837, 837, 36 S.E. 479, 479 (1900); O'Banion v. Commonwealth, 33 Va. App. 47, 55-56, 531 S.E.2d 599, 603 (2000); see generally State v. Shack, 58 N.J. 297, 277 A.2d 369 (1971); 1979-1980 Op. Va. Att'y Gen. 391, 392.

12. See 1979-1980 Op. Va. Att'y Gen. 391; Shack, 58 N.J. 297, 277 A.2d 369; see also 67 Op. Att'y Gen. 64 (Md. 1982). I note also that the federal Migrant and Seasonal Agricultural Worker Protection Act requires farm labor contractors, agricultural employers, and agricultural associations providing housing for any migrant agricultural worker to also provide to the migrant worker a statement of the terms and conditions, if any, of occupancy of their housing. 29 U.S.C. § 1821(c).