Union Representatives and the Unauthorized Practice of Law



UNAUTHORIZED PRACTICE OF LAW

By

Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

As a union representative, is it possible someone could claim that you are engaged in the unauthorized practice of law? What constitutes the unauthorized practice of law? Is a non-lawyer practicing law when he/she represents an injured worker in a worker’s compensation claim, negotiates a collective bargaining agreement, or represents a labor union in an arbitration? And if any of those tasks could technically be construed as the practice of law, does it necessarily follow that they are “unauthorized”? These issues have become increasingly prominent as more and more non-lawyers perform tasks which could appear on their face to constitute the practice of law, leading the Ohio Supreme Court to wrestle with these issues on several occasions in the past few years. A recent advisory opinion issued by the Ohio Board on the Unauthorized Practice of Law tries to clarify the issues.

The issue of lay representation of parties in workers’ compensation claims arose in 2002, when the Cleveland Bar Association filed a complaint against an actuarial firm (CompManagement, Inc.) alleging that employees of that firm, who were non-lawyers, were engaging in the unauthorized practice of law by representing employers at hearings and in connection with workers’ compensation issues. In May, 2004, the Board of Commissioners on the Unauthorized Practice of Law issued a final report, recommending that the Supreme Court find that employees of the actuarial firm had indeed engaged in the unauthorized practice of law and that the Court issue an order prohibiting them from representing clients in the workers’ compensation system.

That recommendation immediately caused the Industrial Commission to postpone hearings in a large number of cases, since in approximately 70% of its cases one or even both parties are represented by lay representatives. In fact, by far the majority of clients (employers and claimants) have non-lawyer representatives in connection with their workers’ compensation dealings. As an example, the Bureau of Workers’ Compensation indicated that in 2003 there were more than 12,000 active claims in which the employee was represented by a union representative. Eventually, the Industrial Commission relented and decided to continue to allow lay representatives to practice in the system while the recommendation of the Board was pending before the Supreme Court.

On December 15, 2004, the Supreme Court decided the case. Cleveland Bar Assn. v. CompManagement, Inc. (2004), 104 Ohio St. 3d 168. The Court acknowledged that “all representative conduct at the administrative level falls within the broad definition of the practice of law.” However, the history of allowing non-lawyer representation and the many public policy concerns favoring lay representation led the Court to conclude that lay representatives should continue to perform certain functions before the Bureau and Industrial Commission, without being found in violation of the State’s restrictions on the unauthorized practice of law.

Although the Court indicated that non-lawyers could practice in the workers’ compensation system, the Court made it clear that there were significant restrictions on what non-lawyers could do. For instance, the Court indicated that non-lawyers could (1) investigate or assist injured workers and employers in investigating the facts of a claim, (2) assist injured workers in filing a claim, (3) attend Industrial Commission hearings for the purposes of reporting the facts, apprising the hearing officer of documents in the file, requesting a postponement, or discussing other matters within the independent knowledge of the representative, (4) complete and submit records and reports with the Bureau or Industrial Commission, and (5) advise employers or injured workers to seek legal representation.

On the other hand, the Supreme Court also indicated there were many activities non-lawyers could not do, including the following: (1) examine or cross examine the injured worker or any witness at a hearing, (2) cite, file or interpret statutory or administrative provisions, rulings, or case law, (3) make or give legal interpretations with respect to testimony, affidavits or medical evidence, (4) file briefs, memoranda, or other pleadings beyond the forms actually provided by the Industrial Commission or Bureau, (5) comment upon or give opinions with respect to the evidence, credibility of witnesses, nature and weight of the evidence, or legal significance of evidence, (6) provide legal advice, give or render legal opinions, cite case law or statutes, or (7) charge a fee for representing an individual party at a hearing without providing other services to the party.

Lay representation under the Supreme Court guidelines has continued in the worker’s compensation system. But the use of non-lawyers in other areas has been questioned. For instance, in Disciplinary Counsel v. Alexicole, Inc. (2004), 105 Ohio St. 3d 52 (decided the week after the CompManagement case), the Court held that non-lawyers could not represent parties in securities arbitration cases. The Alexicole decision naturally led to a question of whether non-lawyers could represent parties in labor arbitrations or negotiations.

In Ohio State Bar Assn. v. Burdzinski, Brinkman, Czarzasty & Landwehr, Inc. (Dec. 27, 2006), 2006-Ohio-6511, the Ohio Supreme Court partially addressed this question. In that case, the Court decided whether a management consulting firm was engaged in the unauthorized practice of law by representing employers in collective bargaining agreement negotiations and other labor matters. The Court summarized its holdings in the following manner:

“1. It is not the unauthorized practice of law for a nonlawyer to represent another in union-election matters or in the negotiation of a collective-bargaining agreement when the activities of the nonlawyer are confined to providing advice and services that do not require legal analysis, legal conclusions, or legal training.

2. It is the unauthorized practice of law for a nonlawyer to draft or write a contract or other legal instrument on behalf of another that is intended to create a legally binding relationship between an employer and a union, even if the contract is copied from a form book or was previously prepared by a lawyer.” Emphasis added.

Apparently a non-lawyer can negotiate a contract, but cannot actually draft or write one.

It is important to note that the Court in Burdzinski did point out that the case was not intended to affect the ability of employers or unions to represent themselves in collective bargaining matters. Rather, the case was limited to third party, non-employee, non-union representatives. So what can union officials, such as local officers or representatives of state or national organizations who assist local unions, do? A 2008 advisory opinion issued by the Board on the Unauthorized Practice of Law attempts to answer that question.

In Advisory Opinion UPL 2008-01, the Board held that a labor organization may be represented in arbitration proceedings by an employee or officer of the union or by an employee of another organization to which the local union belongs (e.g., a state or international union). But there is one major caveat or exception; the Board held that a non-lawyer could represent a union in arbitration “as long as he/she do[es] not engage in those activities that equate to the practice of law.”

While the Board held in its advisory opinion that a non-lawyer could represent the union in an arbitration proceeding, the Board said that, while doing so, the non-lawyer could not “impermissibly engage in the practice of law” by doing such things as giving legal advice, engaging in legal argument, or engaging in direct or cross examination of witnesses. The question that arises, of course, is whether the exception swallows the rule. Isn’t the questioning of witnesses, whether on direct or cross examination, 90% of an arbitration? Can you really represent a party to an arbitration if you don’t question the witnesses?

Union representatives have historically questioned witnesses as part of the representation of their unions in arbitration proceedings. Is this practice now in jeopardy? The opinion by the Board on the Unauthorized Practice of Law is only advisory. The Supreme Court itself has not outlined what lay representatives can or cannot do in arbitration cases, and it may be that, until the Court does rule, there remain questions about what activities union representatives can perform.