The Practice of Law
On Tuesday, the Pennsylvania Supreme Court decided Harkness v. Unemployment Compensation Board of Review, No. 112 MAP 2005. Based on the caption, one could be forgiven for dismissing the case as singularly uninteresting. It is, however, worthy of some note. The matter required the Court to consider whether a non-lawyer's appearance before a state administrative tribunal, in this case an unemployment compensation hearing before a referee, constituted the unlicensed practice of law.
The case fractured the temporarily-shrunken Court. Two Justices (Cappy and Bear) joined the opinion of the court; two Justices (Eakin and Castille) were in dissent. The case turned on the vote of Justice Saylor, who joined neither opinion, concurring in the result only. Former Justices Nigro and Newman did not participate in decision of the matter.
Factually, a Macy's employee found herself in a heated confrontation with a customer over the unavailability of certain Estee Lauder cosmetics. Although the employee heroically managed to maintain her cool for a considerable period of time, the string finally broke and the employee uttered some minimally abusive language. Ultimately, the employee was fired for cause, i.e., violation of company policies forbidding abusive or profane language. Shortly thereafter, the local Unemployment Compensation Service Center denied unemployment benefits. The employee appealed and a hearing date was set.
Here's where it gets interesting, Macy's chose to be represented at the administrative hearing by a non-lawyer associated with Talx UC Express, a St. Louis company in the business of representing companies in unemployment compensation matters. The employee challenged the non-lawyer representation. The Referee found that employers were entitled to be represented by non-lawyers. Employee appealed and the UCBR affirmed. The employee appealed to the Commonwealth Court (for those unfamiliar with Pennsylvania courts, the Commonwealth Court hears appeals in cases in which the commonwealth or a political subdivision is a party).
The Commonwealth Court reversed, finding that an appearance before the unemployment Referee constitutes the unlicensed practice of law. Now, it was the UCBR's turn to appeal. The Supreme Court reversed. The Court explained that a representative's role at an unemployment hearing is not the practice of law:
[T]here is scant advising as to legal rights and responsibilities and few instances of the preparation of documents requiring familiarity with legal principles. . . . [U]nemployment compensation proceedings are not trials. The rules of evidence are not mandated; there is no pre-hearing discovery; the parties have no right to a jury trial; indeed there is no requirement that the referee be a lawyer. Also, and importantly, there are only minimal amounts of money in controversy. Issues arising in these matters are generally questions of fact not requiring complex legal analysis.
The dissent would have reversed because the non-lawyer representative was not a Macy's officer or employee, which is permissible under state statute. Although the logical implication of the dissent is that the legislature may regulate the practice of law to some degree -- a proposition at odds with the state constitution -- the dissent does not grapple with the nettlesome issue. Instead, the dissenters take issue with the distinctions the Court drew between practice before an unemployment referee and practice before other tribunals:
The amount in controversy, the routine nature of the proceedings, the informality, and the 'scant' advising may not make this a complex trial, but these are not factors by which 'practicing law' is measured. On a daily basis, lawyers represent people where the amount in controversy is small. They routinely represent people in routine matters. If their advice be 'scant' that does not diminish it or transform it into something else -- scant legal advice is still legal advice.
Although I see no reason why non-lawyers should not be able to appear in unemployment hearings -- the proceedings are routine and susceptible to expert specialization -- I think the dissent has the better of the argument when it comes to permitting such appearances on the grounds that it does not constitute the practice of law as such practice is traditionally understood. As I said, a case marginally more interesting than its caption would suggest.
