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AGO 1961 No. 6 - January 31, 1961
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John J. O'Connell | 1957-1968 | Attorney General of Washington

ADMINISTRATIVE LAW ‑- APPEARANCE BY NON-ATTORNEY [[NONATTORNEY]]IN ADMINISTRATIVE PROCEEDINGS AS CONSTITUTING UNAUTHORIZED PRACTICE OF LAW

Appearance by non-attorney [[nonattorney]]in a representative capacity before a state administrative agency in a "contested case" constitutes the unauthorized practice of law.  Whether an appearance in other administrative proceedings constitutes the unauthorized practice of law depends upon facts of each case and requirements of protection of the public interest.

                                                              - - - - - - - - - - - - -

                                                                 January 31, 1961

Honorable Patrick D. Sutherland
Commissioner
Washington Public Service Commission
Insurance Building
Olympia, Washington

                                                                                                                  Cite as:  AGO 61-62 No. 6

Dear Sir:

            By letter previously acknowledged, you requested our opinion on the following question:

            Does the appearance of a non-attorney [[nonattorney]]in a representative capacity before a state administrative agency constitute the unauthorized practice of law?

            We assume the use of the word "appearance" in your query is in the legal sense of coming into a proceeding as a party with all the rights and obligations that attach to such a status.  Our answer to your inquiry is contained in the following analysis.

 

                                                                     ANALYSIS

            Opinion AGO 55-57 No. 1, issued January 5, 1955 [[to Hal G. Arnason, State Representative on January 5, 1955]], contains a detailed analysis of the statutes and cases of this state pertaining to the unauthorized practice of law.  While the activities there being considered pertained to transactions of real estate brokers, the conclusions drawn in said opinion render unnecessary a further analysis of such statutes and cases in establishing certain principles applicable to your inquiry.  These conclusions may be generally summarized as follows:

             [[Orig. Op. Page 2]]

            1. The courts have inherent power to enjoin the unauthorized practice of law.  The exercise of this power is not conditioned upon the presence of compensation.  An injunction will be granted if the court decides from the facts of the particular case that it is necessary to protect the public interest.

            2. The courts have inherent power to punish as for contempt one engaged in the unauthorized practice of law.

            3. One engaged in the unauthorized practice of law may be found guilty of a misdemeanor.

            We will not extend this opinion to restate the analysis leading to the foregoing conclusions, but rather refer you to the aforesaid opinion for such support.

            The applicable statutory provisions are RCW 2.48.170 and RCW 2.48.180, providing as follows:

            RCW 2.48.170:

            "No person shall practice law in this state subsequent to the first meeting of the state bar unless he shall be an active member thereof as hereinbefore defined:  Provided, That a member of the bar in good standing in any other state or jurisdiction shall be entitled to appear in the courts of this state under such rules as the board of governors may prescribe."

            RCW 2.48.180:

            "Any person who, not being an active member of the state bar, or who after he has been disbarred or while suspended from membership in the state bar, as by this chapter provided, shall practice law, or hold himself out as entitled to practice law, shall be guilty of a misdemeanor:  Provided, however, Nothing herein contained shall be held to in any way affect the power of the courts to grant injunctive relief or to punish as for contempt."

            Before proceeding to an analysis of the case law on the subject, it is well to have in mind the reasons underlying the statutory and judicial prohibition against the practice of law by other than members of the bar.  These reasons are cogently stated and extensively annotated in a recent decision of the Supreme Court of Appeals of West Virginia in the case of West Virginia State Bar v. Earley, 109 S.E. (2d) 420, 435 (1959), as follows:

             [[Orig. Op. Page 3]]

            "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 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.2d 27; Inre Shoe Manufacturers Protective Association, Inc., 295 Mass. 369, 3 N.E.2d 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 admission to membership in the legal profession is a privilege granted in the interest of the public to those who are morally fit and mentally qualified for the sole purpose of protecting the unwary and the ignorant from injury at the hands of persons unskilled or unlearned in the law.  Tumulty v. Rosenblum, 134 N.J.L. 514, 48 A.2d 850.  The licensing of lawyers is not designed to give rise to a professional monopoly but instead to serve the public right to protection against unlearned and unskilled advice and service in relation to legal matters.  Auerbacher v. Wood, 142 N.J. Eq. 484, 59 A.2d 863.  The reason for the requirement that the practice of law be engaged in only by duly licensed practitioners of the law is to establish and maintain a legal standard by which the rights of persons may not be jeopardized or sacrificed by counsel and advice of unlicensed legal advice, prepare documents and pleadings, file and prosecute proceedings and examine witnesses in courts or other tribunals.  State ex rel. Hunter v. Kirk, 133 Neb. 625, 276 N.W. 380.  It is essential to the administration of justice and the proper protection of society that unlicensed persons be not permitted to prey upon the public by engaging in the practice of law.  Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977.  The reason laymen are forbidden to engage in the  [[Orig. Op. Page 4]] 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."

            As noted inWashington State Bar Association v. Washington Association of Realtors, 41 Wn. (2d) 697, 701, 251 P. (2d) 619 (1952), our supreme court has not decided with comprehensive scope

            ". . . what activities are or are not included in the term 'practice of law,' . . ."

            Various definitions have been referred to in prior cases such asFerris v. Snively, 172 Wash. 167, 19 P. (2d) 942 (1933), wherein the court quoted fromState v. Chamberlain, 132 Wash. 520, 524, 232 Pac. 337 (1925), that

            "While we lack an authoritative definition of practicing law, we may say here that, so far as this jurisdiction is concerned, it means doing or practicing that which an attorney or counsellor at law is authorized to do and practice. . . ."

            Although our court has not been called upon to determine whether an appearance in a representative capacity before a state administrative agency constitutes the unauthorized practice of law, a substantial body of law on the subject has been developed in other jurisdictions.  See annotations in 111 A.L.R. 32, 125 A.L.R. 1179 and 151 A.L.R. 787.

            In what has been referred to by other courts as a leading case on the subject, the Supreme Court of Illinois, in People ex rel. Chicago Bar Association v. Goodman, 366 Ill. 346, 8 N.E. (2d) 941 (1937), held a non-lawyer in contempt for processing workmen's compensation claims before that state's industrial commission.  In determining that such activities constituted the practice of law, the court observed, consistent with the decisions of our court referred to in our opinion AGO 55-57 No. 1,supra, that the power to regulate and define the practice of law is a prerogative of the judicial department, legislative acts being merely in aid of, not a supersedure of, the power of the judicial department, and that

            ". . . The practice of law, both in courts and out of courts, by one not licensed is . . . a contempt of this court. . . ." (p. 350)

             [[Orig. Op. Page 5]]

            With particular reference to appearances in a representative capacity before state administrative agencies, the court stated:

            ". . . Administrative law, although of comparatively recent growth, is recognized today as an important branch of the law.  Classes for the study thereof are now taught in many of our leading law schools.  Relatively speaking, not many years ago that part of a legal education was unknown to the curriculums of law colleges. . . ."

            After reviewing various legal matters involved in pursuing a claim before the state agency involved, the court held:

            ". . . It is immaterial whether the acts which constitute the practice of law are done in an office, before a court or before an administrative body.  The character of the act done, and not the place where it is committed, is the factor which is decisive of whether it constitutes the practice of law. . . ." (p. 357)

            The court concluded that the institution of proceedings before that state's industrial commission and the trial of those causes before the state agency constituted the practice of law.

            A decision bringing in issue the matter of appearances by non-attorneys [[nonattorneys]]in a representative capacity before a public service commission isClark v. Austin, 340 Mo. 467, 101 S.W. (2d) 977 (1937).  The proceedings resulted in a judgment of contempt of court because of the illegal practice of law.  The individuals in question had appeared before the public service commission representing persons interested in the granting or refusal of certificates of convenience and necessity and permits to operate freight carrying motor vehicles over certain designated roads; they appeared in such hearings, prepared and filed pleadings and other documents therein; gave advice as to what facts should be established; and examined and cross-examined witnesses in the conduct of such hearings.  Although that state had a statute specifically designating such activities as constituting the unlawful practice of law, the majority opinion rested on the inherent power of the court to define the practice of law.  The court found the above‑enumerated facts sufficient to establish the unauthorized practice of the law.

            In the foregoing case the appearances in question were for valuable consideration.  That compensation is not a requisite to constitute the unlawful practice of law in this state, see AGO 55-57 No. 1,supra.

             [[Orig. Op. Page 6]]

            In the case ofGoodman v. Beall, 130 Ohio St. 427, 200 N.E. 470 (1936), a distinction is made based on the particular activities before state administrative bodies in the matter of what constitutes the practice of law.  At issue were appearances by laymen before that state's industrial commission.  The function of the commission in question pertained to the allowance or disallowance of compensation to workmen for death or injuries occasioned in the course of employment.  The court pointed out that in the vast majority of instances no special skill was required for thepreparation and presentation of claims.  The claims were supported by statements and affidavits of various parties on forms prepared and furnished by the commission.  The commission frequently had its own representative conduct an independent investigation of the particular claim and sometimes there were informal oral hearings before a referee.  When validity of the claim was established, compensation was paid on the basis prescribed by the statutes and the incident was closed.  The court concluded that appearances and practice before the commission do not ordinarily or properly constitute the practice of law up to the time when claimant first receives notice of the disallowance of his claim.  However, as to the proceedings following disallowance of the claim, involving a hearing during which a transcript is made upon which court review may be taken, only attorneys at law may appear in a representative capacity.  (See also,Shortz v. Farrell, 327 Pa. 81, 193 Atl. 20 (1937)).  In the latter circumstances the court stated:

            "In all fairness, it must be conceded that the preparation of a rehearing record should be in complete charge of an attorney at law.  It presents exactly the kind of work for which his training and experience peculiarly fit him.  Such record constitutes the entire evidence upon which the merits or demerits of a claim can be determined by a court and jury.  If a record be poorly and inexpertly prepared, the rights of interested parties may be seriously prejudiced.  Its formation unquestionably comes within any well considered and complete definition of the practice of law."  (Emphasis supplied.) (p. 433)

            A decision holding that an examination of the evidence in particular cases is necessary to establish whether an appearance in a representative capacity before an administrative body may be such as amounts to the practice of law isState v. Childe, 139 Neb. 91, 295 N.W. 381 (1941).  The Nebraska supreme court had before it an original action charging the defendant, a non-lawyer, with contempt of court for practicing law without a license.  The matter was before the court on the motion of relator for judgment on the pleadings.  In general, the charge was that, by appearing in a representative capacity before that state's railway commission, the  [[Orig. Op. Page 7]] defendant was engaged in the unlawful practice of law.  In denying a motion for judgment on the pleadings, the court held it was necessary that the matter be referred to a referee of the court for the taking of evidence to establish with particularity the nature of the action and the character of the defendant's activities before it could be determined whether his appearance constituted the practice of law.

            The recent decision in the Earley case, supra, contains a comprehensive analysis of the issues, and decisions from other jurisdictions, pertaining to the matter of appearances before state administrative agencies as constituting the practice of law.  In that case an injunction was sought to enjoin the defendant, a nonlawyer, from continuing certain activities before that state's compensation commission on behalf of claimants under the workmen's compensation act.  The decree of the lower court as affirmed on appeal permanently restrained the defendant from:

            ". . . (a) prosecuting before the State Compensation Commissioner, or his authorized representatives, in behalf of any person or persons, claims for compensation under the Workmen's Compensation Law of this State; (b) appearing in hearings and proceedings before the commissioner, or his authorized representatives, in behalf of such claimants and representing the interests of such person or persons before the commissioner by examining and cross-examining witnesses, offering and introducing evidence, objecting to introduction of evidence and testimony offered by others, and presenting statements and arguments in behalf of such person or persons; (c) advising any person or persons with respect to appeals from the awards and findings of the commissioner to the Workmen's Compensation Appeal Board and preparing and filing in behalf of any other person or persons notices of appeal from the awards, findings and rulings of the commissioner to the appeal board; and (d) engaging in any activity or doing any thing which constitutes the practice of law as defined by this Court in its order entered March 28, 1947, effective May 1, 1947. . . ." (p. 426)

            The order of the court referred to in the foregoing quotation reads in part:

            "'The relation of attorney and client exists, and one is deemed to be practicing law, whenever . . . one undertakes, with or without compensation, to  [[Orig. Op. Page 8]] represent the interest of another before any tribunal ‑ judicial, administrative or executive ‑ otherwise than in the presentation of facts, figures, or factual conclusions, as distinguished from legal conclusions in respect to such facts and figures, . . .'" (p. 427)

            On the facts of the case as contained in the agreed statement of facts, including transcripts of proceedings before the compensation commissioner in which the defendant participated, the court held:

            "It is clear beyond question that the defendant, in appearing as agent in behalf of claimants for compensation at hearings before the State Compensation Commissioner, an administrative agency or tribunal, and his duly appointed trial examiners and in preparing notices of appeal from the rulings of the commissioner to the appeal board, as admitted in the agreed statement of facts stipulated by counsel, engaged in the practice of law and that such conduct on his part constituted the unauthorized practice of law which may be prevented by injunction."  (p. 432)

            With reference to the fact that defendant's appearance was before an administrative agency rather than a court it was stated that the particular tribunal is not important for it is well settled that it is the character of the act and not the place where it is performed which is the decisive factor in determining whether the act constitutes the practice of law, citing theGoodman case,supra, and decisions from Nebraska, New Jersey and Pennsylvania.

            As to the character of the acts of the defendant, the court noted that

            ". . . numerous decisions of appellate courts in different jurisdictions hold that an appearance before a compensation commission, an industrial commission, or a public service commission, or any of its examiners, referees or individual commissioners, in behalf of another person in a representative capacity in adversary proceedings constitutes the practice of law. . . ." (p. 432)

            The court observed that the applicable West Virginia statute provides that the commissioner shall prepare and furnish blank forms of applications for benefits, notices to employers, proofs of injury or death, of medical attendance, of employment and wage earnings and other proofs, and that it is the duty of employers to  [[Orig. Op. Page 9]] keep on hand a sufficient supply of such blanks at all times and held consistent with the decision in the Beall and Farrell cases,supra:

            ". . . The completion of such blank forms does not require any knowledge and skill beyond that possessed by the ordinarily experienced and intelligent layman, and a layman may properly complete and file such forms in behalf of another person as employer, employee, claimant or beneficiary without engaging in the practice of law . . ." (p. 434)

            In theEarley case, supra, one of the defenses raised was that by statute the commissioner was given authority to adopt reasonable and proper rules of procedure and to regulate and provide for the method of taking proof and evidence and that pursuant to said statute the commissioner had adopted a rule permitting a person not a licensed attorney to appear as an agent and represent claimants for compensation in hearings before the commissioner and his examiners.  After noting that the statute does not undertake to authorize the commissioner to promulgate a rule by which a layman may appear as an agent on behalf of a claimant or employee, the court stated:

            ". . . But even if the statute attempted to authorize the commissioner to promulgate a rule of that character such provision of the statute would be void as a legislative encroachment upon the inherent power of the judicial department of the government.  The State Compensation Commissioner, as an administrative agency or tribunal, is without power or authority by rule or otherwise to permit an agent who is not a duly licensed attorney to practice before him and any provision . . . which attempts to permit an agent who is not a duly licensed attorney to practice before the commissioner is void and of no force or effect. . . ." (p. 439)

            To the same effect, see the Goodman and Childe cases, supra.

            The holding of these cases is directly in point should it be thought that the provisions of RCW 34.04.020 (1), or other similar statutes pertaining to particular agencies, grant authority to non-lawyers [[nonlawyers]]to practice law before administrative bodies in this state under such rules as the agency may adopt.  Consistent with the basis of the decisions on this point in the Earley, Goodman and Childe cases, supra, our supreme court in the Wash. Association case,supra, has held:

             [[Orig. Op. Page 10]]

            "A legislative act which purports to permit gratuitous work of a legal nature by the unskilled or unqualified, can impose no restriction upon the power of the court to grant an injunction, if the court determines that the continuation of such work is, in fact, against the public interest. . . ."  (p. 699)

            We are aware of the fact that it is not an unusual occurrence for non-lawyers to appear in representative capacities before various federal administrative agencies.  Regulations made pursuant to congressional acts affecting such agencies provide procedures for licensing or registration of laymen meeting certain qualifications to engage in practice before them.  In some instances agreements for such representation have been before state courts on the question of enforceability.  The case ofDe Pass v. B. Harris Wool Co., 346 Mo. 1038, 144 S.W. (2d) 146 (1940), the supreme court of Missouri held such a contract to be enforceable.  While recognizing that the right to define the practice of law and to regulate persons engaging in practice falls within the authority of the state, the supreme court of Missouri acknowledged an exception thereto when that right runs

            ". . . contra to an act 'made in pursuance' of the federal constitution."

            It is clear that the holding of the court would have been different had the practice involved been before an administrative agency of that state.  In fact, the case of Clark v. Austin, supra, being a decision of the same court, makes this abundantly clear.

            From the foregoing decisions, and the rationale supporting them, the conclusion is inescapable that appearances in a representative capacity in hearings before administrative agencies of this state in many, if not most, instances constitute the practice of law and as such may not be undertaken by non-lawyers without being in violation of RCW 2.48.170 and RCW 2.48.180,supra, and also subject to sanctions under the inherent power of the courts.  It is fully recognized that proceedings before various administrative agencies of this state take many forms.  Some present problems of substantive and procedural law equally complex to those presented in court proceedings and involve the making of transcripts which form the sole evidentiary record on appeal.  Others may properly be conducted in an informal manner and may be strictly preliminary in effect and may not involve at that time the making of an appeal record.  Any attempt by this office to set forth a universal rule specifying the first point at which an appearance  [[Orig. Op. Page 11]] in every administrative agency proceeding constitutes the practice of law would be impracticable.  Certainly, however, that point is reached if the proceeding in question constitutes a "contested case" as that phrase is defined in chapter 34.04 RCW, this state's administrative procedures act.  RCW 34.04.010 (3) defines a "contested case" as

            ". . . a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing."

            An examination of the provisions of the administrative procedures act pertaining to "contested cases" clearly shows that appearances in proceedings covered thereby involve the practice of law.  In such cases 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.  At or in connection with such hearing, provision is made for the issuance of subpoenas and the taking of depositions, rulings are made upon offers of proof and competency, materiality and relevancy of evidence, conferences may be held for the settlement or simplification of the issues, and the right of cross-examination of witnesses is extended to all parties.  As stated in theBeall case,supra, the preparation of such a record

            ". . . unquestionably comes within any well considered and complete definition of the practice of law."  (p. 433)

            While we conclude that an appearance in a representative capacity in a "contested case" before an administrative agency of this state clearly constitutes the practice of law and thus may not be made by a non-lawyer, this is not to say that appearances in representative capacities in hearings that do not reach the status of a "contested case" may legally be made by non-lawyers.  A myriad of such situations might arise and it is patently impracticable to compress them all into a single formula.  We point out, however, that our supreme court in the Wash. Association case, supra, re‑affirmed the principle that the court possesses the power to restrain a non-lawyer from doing work of a legal nature and that such power may be invoked in order that the public interest be protected.

            In reaching the above conclusion we have proceeded on the assumption, as heretofore stated, that the use of the word "appearance" in your query was in the legal sense of coming into a proceeding as a party with all the rights and obligations that attach to such a status.  We are aware of the possibility, however, that what might be denominated an "appearance" by lay persons and administrators in certain proceedings may, on occasion, constitute  [[Orig. Op. Page 12]] something entirely different.  It may well be the purpose of the so-called "appearance" is merely to be enabled to make a statement of position or to present a resolution of some interested organization or to meet agency requirements to secure copies of findings and decisions made in particular cases or to indicate attendance or presence, rather than to constitute the coming into the proceedings as a party thereto.  Our conclusion, of course, should not be construed as applying to such situations.

            We trust the foregoing will be of assistance to you.

 

Very truly yours,

JOHN J. O'CONNELL
Attorney General

FRANK P. HAYES
Assistant Attorney General

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