By Christopher Cross
There can be no question of whether or not an unemployment hearing reaches deeply into the realms of practicing law; all things about such hearings conforms to the very practices and principles of practicing law. And because of this, a former employee must give careful thought to what they say and do during the entire process.
Employer's are commonly armed with attorney's and human resource personnel, who are both skilled learned professionals in matters of employment law. Thus, even if an employer enters into an unemployment appeal hearing they are already armed with legal knowledge to fight the appealing former employee.
However, former employee's do not have the luxury of having a team of skilled learned professionals in their corner, giving them legal advice about unemployment hearings and as such, are at great disadvantage when ligitigating cases. Perhaps even more so if and when appeal judges (referred to as Referee's) are corrupt in whole or in any part so as to prejudice the former employee in any way.
Recently, the Pennsylvania Court ruled in Harkness v. Unemployment Compensation Board of Review (Pa. Cmwlty. 2005) that an employer must be represented by a licensed attorney during unemployment hearings.
This case came to light when a Missouri Tax Consultant out of St. Louis provided representation for the employer during the unemployment hearing. The Court ruled that in doing so, the tax consultant engaged in the unathorized practice of law. Relying upon the Pennsylvania Supreme Court ruling in Shortz, et al. v. Farrell, 193 A. 20 (1937).
In Shortz, the Supreme Court held that the ""practice of law" included activities involving (1) the instruction and advising of clients in regard to the law so that they may pursue their affairs and be informed as to their rights and obligations; (2) the preparation of documents for clients requiring familiarity with legal principles beyond the ken of ordinary laypersons; and (3) the appearance on behalf of clients before public tribunals, the application of rules of evidence, the examination and cross-examination of witnesses, and the preparation of arguments in order to assist the deciding official in the proper interpretation and enforcement of the law." Shortz, 193 A. at 21.
Ultimately, the Court held that the tax consultant's conduct at the appeal hearing did in fact constitute the unathorized practice of law
In Missouri, Title 8 of the Code of State Regulations, Section 10-5.015 et seq provides that both an employer and a claimant [former employee] may be represented by non-lawyers. And yet, based upon existing statutes [484.010 and 484.020 RSMo] representation by a non-lawyer in any proceeding before any body, judge, magistrate or referee constitutes the unauthorized practice of law.
Thus, while state officials throught the legislative processes invoke a right of the people to be represented by non-lawyers [for, which is certainly in keeping with the princples of our U.S. Constitution] durin such low level hearings. Caution should be taken because even if there is an active state law that says yes, attorney's for the state Disciplinary Counsel that regulates attorneys and the practice of law may very well come after someone who engages in such conduct.