Board Recommends Finding that CompManagement Engaged in Unauthorized Practice of Law
Cleveland Bar Assn. v. CompManagement Inc., et al. (5/18/04), Case No. UPL02-04.
NOTE: The Supreme Court did not adopt this proposal and instead, ruled that non-attorneys can represent others before the Industrial Commission and Bureau of Workers’ Compensation, pursuant to the terms of Industrial Commission Resolution No. R04-1-01.
Issue: Did CompManagement, and its employees, engage in the unauthorized practice of law when they represented employers in workers’ compensation proceedings?
Background: CompManagement is an actuarial company which is hired by employers to represent the employers in workers’ compensation proceedings before the Industrial Commission and Bureau of Workers’ Compensation.
The Cleveland Bar Association filed a complaint with the Board of Commissioners on the Unauthorized Practice of Law claiming that CompManagement, and certain of its employees, engaged in the unauthorized practice of law when they represented employers before the Commission and BWC.
When CompManagement represents employers it may: assign a representative to appear at hearings on behalf of the employer; indicate that it is “authorized to represent the employer”; correspond with attorneys; prepare and file various forms and motions; negotiates settlements; engage in direct and indirect examination of witnesses; present employers’ arguments; and give recommendations and advice to employers on how to proceed in claims, as well as whether to hire an attorney.
Decision: The Board recommends a finding that CompManagement’s activities constitute the unauthorized practice of law.
Unauthorized practice of law is “rendering of legal services for another by any person not admitted to practice in Ohio.” It also indicates that “appearances and practice before the Industrial Commission constitute the practice of law.”
The Board specifically indicates that providing services “in the preparation and presentation of [workers’ compensation] claims for a fee constitutes the practice of law.”
Although the Supreme Court has factored in public interest concerns in evaluating the unauthorized practice of law, the Board indicates that it is unable to do so. The Board states that it can only consider the rule and the applicable Court decisions in determining whether the acts involved in this case constitute the unauthorized practice of law.
Evaluating this case under those standards, the Board finds that the following acts of CompManagement were the unauthorized practice of law:
- “representation of employers’ interests in handling claims before the Industrial Commission”;
- “preparation, signing and filing of documents in handling claims before the Industrial Commission on behalf of employers”;
- “negotiation and involvement with settling claims before the Industrial Commission on behalf of employers”;
- “direct and indirect examination of witnesses during hearings”;
- “presentation of employer concerns, arguments, summations of evidence, conclusions regarding the import of factual information and/or closing statements on behalf of employers during hearings”;
- “recommendation and advice to employers as to taking appeals or other legal action in handling claims before the Industrial Commission”; and
- evaluation, advice or recommendation concerning whether an employer should retain an attorney to handle a claim.”
Editor’s Comment: There are a couple of important factors to consider when evaluating this decision.
The most important is that the Board did not consider the policy issues which CompManagement, and many of the amicus groups which filed briefs on its behalf, addressed. The Board deferred those decisions to the Supreme Court, which will make the ultimate determination of whether CompManagement’s acts constitute the unauthorized practice of law.
Equally important is that CompManagement charges a fee for its representation of employers. The Supreme Court has recognized a distinction between representation for a fee and representation of injured workers by union members. Hopefully the ultimate decision in this case will not affect union representation of injured workers.
Procedural Notes: This is a report of the Board of Commissioners on the Unauthorized Practice of Law. The Supreme Court has issued an order to “show cause” why the Board’s decision should not be adopted. CompManagement has 20 days from that order (until June 9, 2004) to file objections to the Board’s recommendation. [Note: A stipulated extension of time has been filed with the Supreme Court, giving CompManagement until June 29, 2004 to file objections.] After the objections, and responses to the objections are filed, the Supreme Court will consider the objections and issue an order. [See Rules for the Government of the Bar of Ohio Rule VII, Section 19.]
Proceedings were also brought against certain individual employees of CompManagement. Decisions on those issues were made based on the state of the evidence, but based on the legal principles discussed above.