Not Unauthorized Practice
From the web page of Pennsylvania’s Disciplinary Board
By a 2-1 decision, the Commonwealth Court ruled that the Unemployment Compensation Board of Review erred in applying the Pennsylvania Rules of Disciplinary Enforcement to prevent a suspended lawyer from representing a client in an administrative hearing before an unemployment compensation referee.
In the case of Powell v. Unemployment Compensation Board of Review, the claimant appeared at the first hearing with a suspended attorney, who was allowed to represent the complainant consistent with 43 P.S. §774, which states, “Any party in any proceeding under this act before the department, a referee or the board may be represented by an attorney or other representative.” Neither the employer nor the referee objected to the suspended attorney’s participation. The hearing was continued due to an issue with subpoenas.
Before the hearing resumed, the employer retained counsel who notified the Board that he objected to the suspended attorney’s involvement, citing Rule 217(j)(4) of the Rules of Disciplinary Enforcement, which prohibits a formerly admitted attorney from “appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body.” When the hearing was rescheduled, the suspended attorney and the claimant were notified the former attorney would not be allowed to appear on behalf of the claimant, who was given thirty days to obtain a new attorney. At the resumed hearing, the claimant appeared with a new representative, who was also a suspended attorney. The new representative was allowed to attend as an advisor but not to represent the claimant. The claimant presented his own case and received an adverse decision. He appealed to the UCBR, which upheld the decision, concluding that Rule 217(j)(4) prohibits a suspended attorney from representing a client before a UC referee.
The Commonwealth Court reversed and remanded the case to the UCBR, in a decision written by Judge P.Kevin Brobson. The opinion noted that the Supreme Court of Pennsylvania ruled in the case of Harkness v. Unemployment Compensation Board of Review, 920 A.2d 162 (Pa. 2007), that representation in unemployment compensation proceedings is not the practice of law. The Commonwealth Court then ruled that only the Disciplinary Board and the courts have the power to enforce the Rules of Disciplinary Enforcement, and that the UCBR could not apply the Rules of Disciplinary Enforcement to override 43 P.S. §774 as to the particular class of nonlawyer representatives who are formerly admitted attorneys.
(Mike Frisch)