Posted: January, 2005
Non-attorney Administrative Representation Permitted
Cleveland Bar Assn. v.
CompManagement, Inc. (12/15/04), 104 Ohio St. 3d
168, 2004-Ohio-6506Issue: Can non-attorneys, such as actuarial companies, represent parties before the BWC and Industrial Commission, or is such representation the unauthorized practice of law?
Background: The Cleveland Bar Association filed a complaint with the Supreme Court's Board of Commissioner's on the Unauthorized Practice of Law ("Board") charging CompManagement, an actuarial company which represented employers before the Bureau of Workers' Compensation and Industrial Commission, with the unauthorized practice of law.
The Board found that administrative practice of workers' compensation involved the practice of law. The Board found that CompManagement engaged in the unauthorized practice of law when it: (1) represented employers in handling claims; (2) prepared, signed and filed documents; (3) negotiated and settled claims; (3) examined witnesses (directly and indirectly) at hearings; (4) presented arguments regarding evidence at hearings; (5) advised employers whether to appeal; and (6) advised employers whether or not they needed an attorney.
Therefore, the Board found that when CompManagement represented employers before the Bureau and Commission it was engaged in the unauthorized practice of law.
CompManagement filed objections with the Supreme Court. Its objections were supported by a number of parties who are interested in the operation of the workers' compensation system (including, among others, the Ohio AFL-CIO, the Ohio Academy of Trial Lawyers, the Ohio Chamber of Commerce and the Ohio Manufacturer's Association.)
The Board's decision had a wide-ranging impact. It potentially applied not only to actuarial companies who represent employers, but also to Union Compensation Representatives who represent injured workers. As a result of confusion caused by the Board's decision, approximately 70% of all hearings were continued by the Commission in the two days after the Board's decision issued.
The Commission then decided to continue permitting representation by actuaries and unions, until the Supreme Court ruled on the case.
Because of confusion among hearing officers about how to proceed in cases involving non-attorney representation, the Commission issued an emergency resolution (R04-1-01) which gives the historical basis of non-attorney representation in the workers' compensation system and the confusion caused by the Board's decision. The resolution set forth what non-attorneys can and cannot do when representing others before the Bureau and Commission.
Decision: The Supreme Court refuses to adopt the Board's decision.
The Court notes that the Board, in issuing its finding, did not consider the policy implications. The Court reviews the history of the workers' compensation system and recognizes that non-attorney representation has been a factor in the system since it was first adopted. The Court also reviews the Commission's resolution and recognizes the current extent of non-lawyer representation.
The Court states it has the power to regulate the practice of law and this power includes the power to authorize, as well as prohibit. The Court finds that "in certain limited settings the public interest is better served by authorizing laypersons to engage in conduct that might be viewed as the practice of law."
The Court finds that this is a case where the public interest justifies permitting non-attorneys to perform certain actions before the Bureau and Commission. As a result, the Court holds that
non-lawyers who appear and practice in a representative capacity before the Industrial Commission and the Bureau of Workers' Compensation in conformity to Industrial Commission Resolution No. R04-1-01 are not engaged in the unauthorized practice of law.The Court remanded the case to the Board so that the Board could determine if CompManagement had complied with the terms of the resolution which the Commission passed after the Board issued its initial decision in this case.
Editor’s Comment: While the overall result of this case (continuing the long-standing practice of union and actuarial company representation before the Bureau and Commission) is good, the specific finding is a bit troubling.
The Court in its opinion recognizes that there are different categories of activities that can be performed by non-attorneys. However, instead of authorizing such actions as have been permitted in the past, or leaving this area open to development by the Commission, the Court indicated that it was approving actions authorized by Resolution R04-1-01. This Resolution is more restrictive than previous practice. As a result of the decision's specific reliance on this resolution, it is likely that the Commission will not change the terms of this resolution even though there may be other activities which non-attorneys could be permitted to perform before the Bureau and Commission.
After the CompManagement decision issued, the Commission passed Resolution, R04-1-03, which permanently adopted the standards set forth in Resolution R04-1-01.
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