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June 23, 1972
Honorable G. Edward Friar
Washington State Bar Association
505 Madison Street
Seattle, Washington 98101 Cite as: AGLO 1972 No. 50 (not official)
This is in response to your recent request on behalf of the Washington State Bar Association, a state agency, for our opinion on the following question:
"Does the appearance of a nonattorney in a representative capacity at 'all conferences and hearings' as authorized by a new rule, WAC 263-12-020, reportedly adopted by the state board of industrial insurance appeals constitute the unauthorized practice of law?"
We answer this question in the affirmative for the reasons stated in our analysis.
In AGO 61-62 No. 6, written to the Washington Public Service Commission on January 31, 1961, this office reviewed all of the then existing court decisions from throughout the country bearing upon the question of representative appearances by nonattorneys before state administrative tribunals. Based upon these decisions the then attorney general concluded that at least under certain circumstances, an appearance by a nonattorney as representative of a party in an adversary proceeding before a state administrative agency constitutes the unauthorized practice of law in violation of both legislatively and judicially enunciated prohibitions against such practice.1/ One of the circumstances in which the appearance of an attorney was determined to be necessary (unless a party is appearing on his own behalf) was where, under the applicable statutes or rules of procedure governing the particular case
[[Orig. Op. Page 2]]
". . . all parties are afforded the opportunity to present evidence and argument, an official record is prepared which includes all the testimony and any judicial review is confined to the record thus made. . . ." (61-62 No. 6, p. 11.)
We have now reviewed this prior opinion and can see no legal basis to rescind the same or to depart from any of the conclusions stated therein. Not only are these conclusions in line with the authorities there relied upon but, in addition, they are fully supported by all of the subsequent cases in point which our current research has uncovered. We would particularly call your attention in this regard to the 1964 annotation entitled "Handling, Preparing, Presenting, or Trying Workmen's Compensation Claims or Cases as Practice of Law," which appears in 2 A.L.R 3d (1964), at pp. 724, et seq. The rules to be derived from the cases digested in this annotation are set forth on page 728 thereof as follows:
"An analysis of all the cases in point reveals the following general rules:
"A layman who holds himself out as able to advise one seeking to establish or enforce a claim or right under a workmen's compensation law, as to the validity or soundness thereof or the proper steps to be taken for its enforcement under the law, is guilty of the unauthorized practice of law. A fortiori, if such a layman, on behalf of a claimant, performs acts in the conduct of a workmen's compensation proceeding which require a knowledge and skill in the law which cannot be possessed by a person not professionally qualified, because of involving applications of the rules and principles of the law to the facts as a whole or to the facts appearing at a particular stage thereof, as to both substantive and procedural matters, he is practicing law. But the performance of an act on behalf of a claimant in the course of a workmen's compensation proceeding which does not require legal knowledge or skill and may be done by any person of ordinary intelligence, such as filling in and filing blank forms prepared and supplied by the compensation authority in order to obtain statements of fact concerning the injury, does not constitute the practice of law, at least if the proceeding has not become an adversary one."
[[Orig. Op. Page 3]]
Accord, the even more recent cases of Denver Bar Assoc. v. Public Utilities Comm., 154 Colo. 273, 391 P.2d 467 (1964); Kentucky State Bar Association v. Henry Vogt Machine Co., 416 S.W. 2d 727 (Ky. 1967); Public Service Comm. v. Hahn Trans. Inc., 253 Md. 571, 253 A.2d 845 (1969); and Florez v. City of Glendale, 105 Ariz. 269, 463 P.2d 67 (1969), all of which, likewise, either have invalidated agency rules purporting to permit nonattorneys to represent parties in proceedings before them or have upheld rules designed to exclude such appearances by persons not admitted to the practice of law.2/
Before proceeding to apply the principles enunciated in these authorities to the recently adopted provisions of WAC 263-12-020 (cited in your question) let us pause, briefly, to note the public policy reasons which underlie such decisions by the courts. As stated in The West Virginia State Bar Association v. Earley, 144 W. Va. 504, 109 S.E. 2d 420 (1959), a case involving proceedings before a state workmen's compensation claims board in West Virginia,
"The justification for excluding from the practice of law persons who are not admitted to the bar and for limiting and restricting such practice to licensed members of the legal profession is not the protection of the members of the bar from competition or the creation of a monopoly for the members of the legal profession, but is instead the protection of the public from being advised and represented in [[Orig. Op. Page 4]] legal matters by unqualified and undisciplined persons over whom the judicial department of the government could exercise slight or no control. Chicago Bar Association v. United Taxpayers of America, 312 Ill. App. 243, 38 N.E. 2nd 349; Lowell Bar Association v. Loeb, 315 Mass. 176, 52 N.E. 2nd 27; In re Shoe Manufacturers Protective Association, Inc., 295 Mass. 369, 3 N.E. 2nd 746; State ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282; New Jersey State Bar Association v. Northern New Jersey Mortgage Associates, 22 N.J. 184, 123 A.2d 498; People v. Alfani, 227 N.Y. 334, 125 N.E. 671; State ex rel. Daniel v. Wells, 191 S.C. 468, 5 S.E. 2d 181. . . . The reason that laymen are forbidden to engage in the practice of law is that it is detrimental to the public interest for them to represent themselves to the public that they are qualified to do so when in fact they are not so qualified. Liberty Mutual Insurance Company v. Jones, 344 Mo. 932, 130 S.W. 2d 945, 125 A.L.R. 1149."
With this in mind we turn now to the essence of your question; having found no basis in any subsequently decided cases to overrule or otherwise set aside any of the views expressed by the attorney general a decade ago in AGO 61-62 No. 6, supra, we must now determine whether an appearance by a nonattorney before the Washington state board of industrial insurance appeals, as purportedly sanctioned by the board's recent amendment to its rule of procedure governing such appearances, is within the purview of that opinion and the above cited subsequent authorities. This brings us to the point of examining the functions of that agency and considering the scope of its amended regulation.
The board of industrial insurance appeals is a state agency empowered by chapter 51.52 RCW to review decisions made by the state department of labor and industries on claims for workmen's compensation benefits. See, in particular, RCW 51.52.060 which requires "Any workman, beneficiary, employer, or other person aggrieved by an order, decision, or award of the department [of labor and industries] . . ." to have such order, decision or award administratively reviewed by the board before appealing the same to the courts. In the exercise of this function the board holds both hearings and conferences involving the [[Orig. Op. Page 5]] parties to any such application for review ‑ and these proceedings are governed by rules of procedure (codified in WAC 263-12-010, et seq.) adopted by the board under the authority of RCW 51.52.020. Among these rules is WAC 263-12-020 which you have questioned.
Until recently, this rule provided that a party to an appeal could either represent himself or be represented by an attorney at law in all proceedings before the board ‑ except that nonattorneys were permitted to participate in a representative capacity for the limited purposes of certain informal conferences to discuss the possible settlement of a claim. (See, WAC 263-12-090) However on May 19, 1972, the board amended this rule to allow nonattorneys to participate as representatives of parties " . . . at all conferences and hearings . . ." The rule as thus amended reads, in pertinent part, as follows:
"A party to an appeal before the Board may appear at all conferences and hearings either in person, or by attorneys at law who are members in good standing of the bar of the Supreme Court of the State of Washington or of the highest court of any sister state, or, if the party is a workman or beneficiary, by a person employed by the workman's labor union whose duties include handling industrial insurance matters for the union, or, if the party is an employer whose duties include handling industrial insurance matters for the employer." (Emphasis supplied.)
Although all claims by workmen or their beneficiaries or dependents for benefits under our industrial insurance system may, potentially, reach the stage in the proceedings to which our critique of this rule will apply, it is to be noted and emphasized that less than one percent of all workmen's compensation claims ever, in fact, do.3/ All others are either settled without an appeal at the department level or are concluded at an informal settlement conference under WAC 263-12-090, supra, under circumstances whereby, even under the board's prior rule, a claimant could be represented by a nonattorney.
However, once a claim reaches the formal conference [[Orig. Op. Page 6]] or hearing stage we think that any person appearing in the proceedings as representative of a party must be regarded as being engaged in the practice of law ‑ and hence must be qualified and authorized to do so. At this point, as we will now explain in some detail, the case will have entered into an arena where, according to the applicable statutes and in the words of AGO 61-62 No. 6, supra,
". . . all parties are afforded the opportunity to present evidence and argument, an official record is prepared which includes all the testimony and any judicial review is confined to the record thus made. . . ."
Although the board can deny an appeal or even grant the relief sought without a hearing (see, RCW 51.52.080), in those cases where a hearing is held, either before a hearing examiner or the board, a formal record is made of the entire proceeding. If the hearing was held before an examiner and the board reviews his decision, its review is predicated solely on the record made before the examiner. See, RCW 51.52.106. And, if judicial review is thereafter sought in the courts, that review is also limited to the record made before the board. See, RCW 51.52.115. In short, all "hearings" before the board are record proceedings upon which judicial review is predicated.
In addition to these hearings, the statutes governing the board of industrial insurance appeals also provide (as previously noted) for conferences which can be held either on the motion of a party or on the board's own motion. See, RCW 51.52.095. Under this statute the board can direct "all parties interested in an appeal, together with their attorneys, if any, to appear before it, . . . for a conference . . ." during the course of which the following things can be determined:
(1) The feasibility of settlement;
(2) Simplification of issues of fact and law;
(3) The necessity of amendments to the notice of appeal or other pleadings;
(4) The possibility of obtaining admissions of fact and of documents;
(5) Limitation on the number of expert witnesses;
[[Orig. Op. Page 7]]
(6) Such other matters as may aid in the disposition of the appeal.
This statute (RCW 51.52.095) further provides that following such a conference
". . . the board member or hearing examiner conducting the same, shall state on the record the results of such conference, and the parties present or their representatives shall state their concurrence on the record. Such agreement as stated on the record shall control the subsequent course of the proceedings, unless modified at a subsequent hearing to prevent manifest injustice. . . ." (Emphasis supplied.)
It is thus clear that the board's conferences as well as its hearings (with the exception of a conference limited to the settlement of the claim which results in a determination of the proceedings) are in fact record proceedings upon which judicial review is subsequently predicated. For this reason they also must be said to fall within the rule as stated in the 1961 attorney general's opinion heretofore reviewed and affirmed.
In producing this record, moreover, it is further to be noted that the currently effective statutes and rules of procedure which govern the proceedings are such as to call for the application of a good deal of technical legal skill. For example, under WAC 263-12-115 (3) objections to the admission or exclusion of evidence must state ". . . the legal grounds of objection relied upon . . ." In addition, subsection (4) of this rule provides that:
". . . all rulings upon objections to the admissibility of evidence shall be made in accordance with rules of evidence applicable in the superior courts of this state."
Another rule, WAC 263-12-145 (2) requires that if legal issues are involved in an appeal the petition for review ". . . shall set forth the legal theory relied upon and citation of authority and/or argument in support thereof. . . ." And finally, under both a statute (RCW 51.52.104) and a rule (WAC 263-12-145) a party filing a petition for review must set forth in detail the grounds therefor or the party shall be deemed to have waived all objections or irregularities not specifically set forth.
[[Orig. Op. Page 8]]
Other examples could be cited as well of procedural requirements applicable to conferences and hearings before the board which call for the application of legal skills by the parties or their representatives. Suffice it to say that because of these requirements the over-all process of presenting a case before the board, examining and cross-examining of lay and expert witnesses, the lodging of objection to testimony, the preparation of briefs and other legal documents ‑ all leading to the preparation of an official record of the proceedings ‑ is such as to constitute the practice of law on the part of the persons making this presentation, in our opinion.
We acknowledge, of course, that all of the numerous court decisions dealing with representative appearances by nonattorneys before administrative agencies which were cited either in AGO 61-62 No. 6, supra, or in this present opinion were decided by courts of other jurisdictions and not by our own Washington supreme court. However, in view of the present procedural statutes and rules governing most conferences and all hearings before the board of industrial insurance appeals, we believe that our court, though not bound by these cases, would find their reasoning to be most persuasive. In our considered judgment it would, in any test of the instant question, thus find the procedures presently governing appeals to this board to be such as to necessitate an exclusion of nonattorneys from this practice ‑ except in the case of such informal settlement conferences as were open to nonattorneys under the board's previous rule. See, AGO 61-62 No. 6 at p. 10.4/ Accordingly, we answer your question (as stated at the outset) in the affirmative.
Having thus formulated and expressed our conclusion with respect to this matter, it remains incumbent upon us to cover one further point. Notwithstanding our opinion that nonattorneys may not appear as representatives of parties in either a formal conference or hearing before the board, [[Orig. Op. Page 9]] the regulation which you have questioned has, nevertheless been adopted. If it should now be tested in court in any sort of action to which the board is a party, it would manifestly be inappropriate, in view of our issuance of this opinion, to assign a regular member of our staff to handle this case. Therefore, we hereby announce at this time our willingness and intention, under these circumstances, to appoint a qualified outside attorney as a special assistant attorney general to represent the board in any such test case.
We trust the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Edward B. Mackie
Deputy Attorney General
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/See, RCW 2.48.170 and 2.48.180, together with the decision of the Washington State Supreme Court in Washington State Bar Association v. Washington Association of Realtors, 41 Wn.2d 697, 251 P.2d 619 (1952).
2/Of the many cases cited in the foregoing A.L.R annotation only one, Eagle Indem. Co. v. Industrial Acc. Comm., 217 Cal. 244, 18 P.2d 341 (1933), appears to permit nonattorneys to practice before a workmen's compensation board. In that case the California supreme court construed a statute allowing a party to an administrative appeal ". . . to be present at any hearing, in person or by attorney or by any other agent . . ." (emphasis supplied) as authorizing representation by nonattorneys. However, no such provision appears in any of the statutes governing proceedings before our state industrial insurance appeals board ‑ and even if one were to be enacted by our legislature we would have no assurance that our supreme court would uphold it. See, AGO 61-62 No. 6, supra, at pp. 9 and 10.
3/See, 1971 Annual Report, Human Resources Agencies, at pp. 17-21.
4/While concededly not directly in point because it did not involve a representative appearance by a nonattorney before this board, we think the Washington case of Bodine v. Dept. of Labor & Ind., 29 Wn.2d 879, 883, 190 P.2d 89 (1948), is, nevertheless, instructive with regard to this estimate of the situation. In this case, involving a claim for attorney's fees in a workmen's compensation case, the court described the circumstances of a claimant before the board as follows:
". . . the claimant's only opportunity to make a proper court record is at the time of the hearing of his claim before the joint board, when he must offer all of his evidence. One who reads the numerous rules of the joint board will be convinced that a claimant could not comply with the requirements of those rules and the decisions of the court relating to admissibility of evidence unless he were a lawyer. The claimant must retain a lawyer or his right to a petition for rehearing is effectively denied."