Unauthorized Practice of Law and Non-Attorney Representatives
Cleveland Bar Association v. CompManagement (12/14/05), UPL 02-04.
Issue: Did CompManagement and/or employees of CompManagement engage in the unauthorized practice of law when they performed various actions representing employers before the BWC and Industrial Commission?
Background: In Cleveland Bar Assn. v. CompManagement, Inc. (2004), 104 Ohio St.3d 168, 2004-Ohio-6506, the Supreme Court found that non-lawyers could act “in a representative capacity” before the Industrial Commission and Bureau of Workers’ Compensation, as long as their actions were permitted under Industrial Commission Resolution R04-1-01. The Supreme Court remanded the CompManagement case to the Supreme Court’s Board of Commissioners on the Unauthorized Practice of Law (“Board”) to determine whether the actions by CompManagement (and its employees) violated the Resolution.
Decision: The Board examines different actions performed by CompManagement and finds certain of these activities constituted the unauthorized practice of law.
The Board finds that the following actions performed by CompManagement on behalf of employers at the administrative level did not constitute the unauthorized practice of law: (1) “preparation, signing and filing” documents with the Commission; (2) “evaluation, advice or recommendation concerning whether an employer should retain an attorney.”
The Board finds that the following actions performed by CompManagement on behalf of employers at the administrative level constitute the unauthorized practice of law: (1) “negotiation and involvement with settling claims”; (2) “direct and indirect examination, including cross-examination of witnesses during hearings”; (3) “presentation of employer concerns, arguments, summations of evidence, [and] conclusions” regarding factual information; and (4) “recommendation and advice to employers as to taking appeals and other legal action.”
Editor’s Comment: One of the strange things about this case continues to be that the actions of CompManagement and its employees are judged against a standard (Resolution R04-1-01) which did not exist at the time of the actions claimed to constitute the unauthorized practice of law.
The Board’s opinion makes clear its continued hostility toward representative action by non-attorney representatives at the BWC and Commission – even though the Supreme Court’s initial decision in this case recognized that “[n]onlawyer representatives are . . . an integral part of Ohio’s workers’ compensation system” and approved the use of non-lawyer representatives.
In its opinion in this case, the Board has expansively interpreted the Commission Resolution to prohibit actions that the Resolution does not seem to prohibit.
For example, nothing in Resolution R04-1-01 prohibits “negotiation and involvement with settling claims.” In its opinion, the Board claims that this action violates R04-1-04(B)(3), (4), (5), and (6) – none of which refer to or discuss the settlement of claims. In fact, it would seem that such actions are approved by R04-1-04(A)(2) which permits “assistance . . . in the administration of a claim.” Additionally, the Commission has issued two interpretative memoranda relating to this Resolution. In the first of these (dated May 23, 2005), the Commission indicated in Category II, number 12, that a non-attorney representative of an employer can negotiate a settlement, but must obtain the employer’s signature on a settlement agreement.
Similarly, the Board’s finding with regard to presentation of “employer concerns” seems broader than the Resolution. While certain actions are prohibited by the Resolution (such as giving legal interpretations or opinions on the evidence), a representative is permitted to report factual results and the Commission’s first interpretative memorandum indicates in Category III, number 4, various activities permitted by non-attorney representatives which seem to be contrary to the Board’s finding.
What actions are permitted to non-attorney representatives? There are a number of different sources to look at:
- The Supreme Court’s initial CompManagement decision, Cleveland Bar Assn. v. CompManagement, Inc. (2004), 104 Ohio St.3d 168, 2004-Ohio-6506;
- The Commission’s Resolution, R04-1-01, which Commission Resolution R04-1-03 permanently adopted;
- The Commission also issued an interpretative memorandum, dated May 23, 2005 and a second interpretative memorandum, dated June 27, 2005.