Could a Maryland county let nonlawyers represent public employees in formal grievance hearings without state legislation?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General whether state legislation was needed before Howard County could let nonlawyers represent public employees in formal grievance hearings before the County Personnel Board. Under the Howard County Code, an employee's grievance could ultimately reach a formal adjudicatory hearing before that board, and the county wanted to know whether it could open that stage of the process to lay advocates rather than requiring a licensed attorney.

The Attorney General concluded that representing an employee at that kind of formal hearing, examining and cross-examining witnesses, applying law to the facts, and arguing the case, fell squarely within Maryland's statutory definition of the "practice of law," which only licensed attorneys may engage in except for a short list of exceptions the General Assembly had already written into the Business Occupations and Professions Article (landlord-tenant summary ejectment, insurance company staff counsel, certain corporate officers). None of those exceptions covered county personnel grievances. Because determining what counts as the practice of law is a function the Maryland Constitution and case law reserve to the General Assembly and the Court of Appeals, a home-rule county cannot use its own ordinance-making power to carve out a new exception on its own. The opinion concluded that Howard County would need either an act of the General Assembly or a rule adopted by the Court of Appeals before it could let nonlawyers represent employees at that hearing stage. An editor's note attached to the opinion in the bound volume records that the General Assembly did exactly that the following year, amending BOP §10-206 in 1992 to authorize nonlawyer representation of county employees in grievance proceedings.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The bound volume's own editor's note already records that the General Assembly changed the underlying law in 1992 (Chapter 465, Senate Bill 296) to authorize nonlawyer representation in county grievance proceedings, so the bottom-line answer to the question this opinion addresses is no longer current; verify the present text of BOP §10-206 and any Court of Appeals rules before relying on any specific rule mentioned here.

Common questions

Could Howard County let nonlawyers represent employees at grievance hearings back in 1991?
No. The opinion concluded that representation at that kind of formal adjudicatory hearing was the practice of law, and Howard County had no authority on its own to create a new exception to Maryland's requirement that only licensed attorneys practice law.

Who did have the power to authorize nonlawyer representation in county grievance proceedings?
Only the General Assembly, by statute, or the Court of Appeals, through its rulemaking authority over the practice of law. The opinion explained that under Maryland's separation of powers, defining and regulating the practice of law is a function reserved to those two branches, not to a home-rule county's ordinance power.

Did the law later change to allow this?
Yes. The bound volume's editor's note records that in 1992, the General Assembly passed Chapter 465 (Senate Bill 296), amending BOP §10-206 to authorize nonlawyer representation of county employees in grievance proceedings.

Background and statutory framework

Maryland law generally prohibited practicing, attempting to practice, or offering to practice law without Bar admission, with criminal sanctions for violations, under §10-601(a) and §10-606 of the Business Occupations and Professions Article. The General Assembly defined "practice law" broadly under BOP §10-101(h)(1) to include giving legal advice, representing another person before a state or local government unit, or any other activity the Court of Appeals defines as practicing law. BOP §10-206(b) carved out a short, specific list of exceptions, covering certain landlord-tenant summary ejectment representation, insurance company staff counsel, and limited corporate-officer appearances, none of which reached county personnel grievance hearings.

Under §1.121(d) of the Howard County Code, an employee's grievance could culminate in a formal adjudicatory hearing before the County Personnel Board, a proceeding the opinion found to unquestionably involve activities within the practice of law (examining witnesses, applying legal principles, arguing the case). Elsewhere in the Maryland Code, the General Assembly had already authorized lay representation of state employees in state grievance proceedings under Article 64A, §53(b), and a 1990 bill that would have extended similar authority to local grievance proceedings had failed to pass. The opinion reasoned that home-rule counties cannot use ordinance power to permit conduct the public general law prohibits, and that defining the practice of law is a shared prerogative of the General Assembly and the Court of Appeals, not of a county government.

Citations and references

Statutes:

• §10-601(a), Business Occupations and Professions Article, general bar-admission requirement to practice law
• BOP §10-206(a), the requirement that practicing law requires Bar admission
• BOP §10-606, criminal sanctions for unauthorized practice of law
• BOP §10-101(h)(1), the statutory definition of "practice law"
• BOP §10-206(b), the specific carve-out exceptions (landlord-tenant, insurance staff counsel, certain corporate officers)
• Article 64A, §53(b), authorizing lay representation of state employees in state grievance proceedings
• §1.121(d) of the Howard County Code, providing for a formal adjudicatory hearing before the County Personnel Board
• Chapter 465 (Senate Bill 296) of the Laws of Maryland 1992, the subsequent amendment to BOP §10-206 authorizing nonlawyer representation of county employees in grievance proceedings

Cases:

• Public Service Comm'n v. Hahn Trans. Co., 253 Md. 571, 580-81, 253 A.2d 845 (1969), describing what constitutes the practice of law and the judicial branch's role in regulating it
• Lukas v. Bar Ass'n, 35 Md. App. 442, 445, 371 A.2d 669, cert. denied 250 Md. 733 (1977), on activities that constitute unauthorized practice of law by a nonlawyer at personnel proceedings
• Mayor of Baltimore v. Sitnick, 254 Md. 303, 255 A.2d 376 (1969), on the limits of home-rule ordinance power against public general law
• Mayor of Baltimore v. Stuyvesant Ins. Co., 226 Md. 379, 174 A.2d 153 (1961), same
• Heubeck v. Mayor of Baltimore, 205 Md. 203, 107 A.2d 99 (1954), same
• Kyle v. Beco Corp., 707 P.2d 378 (Ohio 1985), contrasted approach in another state to regulating the practice of law
• State Bar of Michigan v. Galloway, 369 N.W.2d 839 (Mich. 1985), contrasted approach in another state
• McCrary Corp. v. Fowler, 319 Md. 12, 570 A.2d 834 (1990), on the limits of a county's power to create new causes of action or intrude on areas reserved to the General Assembly and Court of Appeals

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 41-45 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEYS

Unauthorized Practice of Law - Counties - Personnel - Non-
Lawyers May Not Represent Employees in Grievance
Proceedings

                         October 9, 1991

The Honorable Virginia M. Thomas
Maryland House of Delegates

  You have asked our opinion whether State legislation is required

in order to permit Howard County to allow nonlawyers to represent
public employees in formal grievance hearings before the County
Personnel Board.

  For the reasons set forth below, we conclude that Howard County

may permit nonlawyers to represent employees in formal grievance
hearings before the County Personnel Board only if the county were
authorized to do so by the General Assembly or if such representation
were allowed under a rule adopted by the Court of Appeals.1

                                  I

                   Scope of "Practice of Law"

   With only a few specified exceptions, "a person may not practice,

attempt to practice, or offer to practice law in the State unless admitted
to the Bar." §10-601(a) of the Business Occupations and Professions
Article ("BOP" Article). See also BOP §10-206(a). Indeed, BOP §10-
606 provides criminal sanctions for the unauthorized practice of law.

  The General Assembly has defined the practice of law in the

following broad terms:

              "Practice law" means to engage in any of
        the following activities:

    1
      This conclusion is consistent with an earlier opinion of the Howard

County Solicitor. See Opinion No. 84-43 (June 15, 1984).

             (i) giving legal advice;

             (ii) representing another person before a
        unit of the State government or of a political
        subdivision; or

             (iii) performing any other service that the
        Court of Appeals defines as practicing law.

BOP §10-101(h)(l).

   The Court of Appeals has described as follows some actions that

constitute the practice of law: "We have no doubt that when an
individual on behalf of ... another prepares and files pleadings in a
contested case before [an administrative agency] and appears at and
engages in its trial by the examination or cross-examination of witnesses,
in light of the law he has determined to be applicable or controlling and
by arguing the case in writing or orally he engages in the practice of
law." Public Service Comm'n v. Hahn Trans. Co., 253 Md. 571, 580-
81, 253 A.2d 845 (1969).

   The Court of Special Appeals has also provided guidance about the

activities that constitute the unauthorized practice of law. Specifically,
the activities viewed as impermissible if performed by a nonlawyer
included "interpretation of personnel rules and regulations ..., preparing
memoranda of law for the benefit of the personnel board, reviewing his
client's personnel records after having obtained the requisite power of
attorney, and concluding informal discussions with members of the
personnel board in hopes of resolving his client's problems." Lukas v.
Bar Ass'n, 35 Md. App. 442, 445, 371 A.2d 669, cert. denied 250 Md.
733 (1977).

  In 65 Opinions of the Attorney General 28 (1980), this office was

asked about the legality of nonlawyers' representing claimants and
insurance companies at hearings before the Workers' Compensation
Commission. Based on Hahn and Lukas, this office concluded that
"nonlawyers may fill out forms and perform other purely mechanical
functions, but ... they may not represent claimants or employees at
hearings before the [Workers'] Compensation Commission, nor may
they give legal advice, interpret legal documents, or apply legal
principles to any problems of complexity for a client in any matter
before the Commission." 65 Opinions of the Attorney General at 28.

  Under §1.121(d) of the Howard County Code, at the last stage of

the grievance process an employee may obtain a formal adjudicatory
hearing before the Personnel Board. Representation of an employee in
this setting unquestionably involves actions that fall within the practice
of law.

  Current law does not authorize such representation by nonlawyers.

In BOP §10-206, the General Assembly has carved out certain
exceptions to the requirement that an individual who practices law in the
State must be admitted to the Maryland Bar. These include a person
representing a landlord and, under some circumstances, a tenant in a
summary ejectment proceeding in the District Court of Maryland; an
insurance company defending an insured through staff counsel; and,
subject to certain limitations, an officer of a corporation while appearing
on its behalf in a civil action in the District Court. BOP §10-206(b).
None authorizes the representation about which you inquire.

  Elsewhere in the Maryland Code, the General Assembly has

generally authorized lay representation of employees in State grievance
proceedings. Article 64A, §53(b). Legislation that would have
authorized political subdivisions to allow comparable lay representation
of employees in local grievance proceedings failed. House Bill 1307
(1990 Session).

                                II

       Authority to Allow Nonlawyers to Practice Law

   Howard County does not have the authority to allow nonlawyers

to perform actions prohibited by BOP §§10-206(a) and 10-601(a). A
charter home rule county may not permit by ordinance something that
is prohibited by the public general law. Mayor of Baltimore v. Sitnick,
254 Md. 303, 255 A.2d 376 (1969); Mayor of Baltimore v. Stuyvesant
Ins. Co., 226 Md. 379, 174 A.2d 153 (1961); Heubeck v. Mayor of
Baltimore, 205 Md. 203, 107 A.2d 99 (1954).

   In addition, such an ordinance would supplant the policy

prerogatives of the Court of Appeals and the General Assembly.
Maryland courts have unequivocally concluded that "[u]nder our
constitutional system of separation of powers, the determination of what
constitutes the practice of law and the regulation of its practitioners is,
and essentially and appropriately should be, a function of the judicial
branch of government." Public Service Comm'n v. Hahn
Transportation, Inc., 253 Md. at 583. See also Lukas v. Bar
Association of Montgomery County, 35 Md. App. at 447.

   In some states, the authority to regulate the practice of law rests

solely with the judiciary, to the absolute exclusion of the other branches
of government. In other states, courts have deferred to legislative
enactments regulating the practice of law. Compare Kyle v. Beco Corp.,
707 P.2d 378 (Ohio 1985) with State Bar of Michigan v. Galloway, 369
N.W.2d 839 (Mich. 1985). In Maryland, the legislative and judicial
branches have each regulated, achieving a "comfortable accommodation
in this area." Hahn, 253 Md. at 583.2

   Given this "accommodation" between the branches, State

legislation allowing lay representation of employees at grievance
hearings, or authorizing a county to allow it, would likely be held to be
constitutional. See letter of advice from Assistant Attorney General
Kathryn M. Rowe to Delegate Daniel M. Long (March 21, 1990). But
without such legislation, a county may not intrude into an area reserved
for the judicial and legislative branches.

   In McCrary Corp. v. Fowler, 319 Md. 12, 570 A.2d 834 (1990),

Montgomery County attempted to enact an ordinance that essentially
established a private cause of action for unlimited money damages and
injunctive relief as a remedy for employment discrimination. In
determining that the legislation was beyond the power of Montgomery
County to enact, the Court of Appeals wrote: "In creating a new judicial
cause of action between private individuals, [the ordinance] encroaches
upon an area which heretofore had been the province of state agencies.
In Maryland, the creation of new causes of action in the courts had
traditionally been done either by the General Assembly or by this Court
...." 319 Md. at 20.

   Likewise, the creation of new exceptions to the prohibition of law

practice by nonlawyers is beyond the power of Howard County. As the
Court of Appeals observed in Fowler, "[a] contrary [decision] would
open the door for counties to enact a variety of laws in areas which have
heretofore been viewed as the exclusive province of the General
Assembly and the Court of Appeals." 319 Md. at 21.

    2
       The power of the General Assembly to enact legislation regulating the

bar has been said to be "in aid of and not a substitution for the right of the courts
to regulate the practice of law." Lukas, 35 Md. App. at 447.

                                    III

                               Conclusion

 In summary, it is our opinion that Howard County may not permit

nonlawyers to represent employees in formal grievance hearings before
the County Personnel Board. Such representation must be authorized by
either the General Assembly or the Court of Appeals.

  We are not suggesting that the result under current law is

necessarily a desirable one. Indeed, as the 1980 opinion on lay
representation in workers' compensation cases pointed out, while "there
are undoubtedly some ... cases involving complicated legal or factual
matters that require the expertise an attorney has acquired through his
legal training ..., in other simpler cases, claimants (and employers)
might well be able to pursue their claims quite competently, and perhaps
more economically, with nonlegal assistance." 65 Opinions of the
Attorney General at 33. The General Assembly should revisit the matter
unless it is addressed through rulemaking by the Court of Appeals.3

                               J. Joseph Curran, Jr.
                               Attorney General

                               Jack Schwartz
                               Chief Counsel
                               Opinions & Advice

                               Mary O'Malley Lunden
                               Assistant Attorney General

Editor's Note:

 In Chapter 465 (Senate Bill 296) of the Laws of Maryland 1992,

the General Assembly amended BOP §10-206 to authorize county
employees to be represented by nonlawyers in grievance proceedings.

    3
      As we understand it, the Standing Committee on Practice and Procedure

has agreed to review this matter along with issues related to nonlawyer
representation in other proceedings. See Committee File, House Bill 1307 (1990
Session).