Does a lawyer serving as an administrative law judge violate Rule 5.5 by allowing a non-attorney to represent a corporation at an administrative hearing?

Plain-English summary

The committee was asked whether Rule 5.5(e) prohibits administrative law judges (ALJs) from allowing a non-attorney to represent a corporation at administrative hearings, in two situations: hearings before the Department of Human Services, which has rules permitting non-attorney representatives, and hearings before agencies that have no such rule. Rule 5.5(e) provides that a lawyer shall not assist another person in the unauthorized practice of law, and the committee read "assist" to mean to aid, help, or lend countenance.

The committee was careful about the limits of its role. Whether a non-attorney's appearance in a representative capacity is itself the unauthorized practice of law is a legal question beyond its jurisdiction, so for purposes of the opinion it assumed that such an appearance is unauthorized practice unless a law or administrative rule permits it. It noted that an Office of Administrative Hearings rule appears to limit representation to licensed attorneys unless otherwise authorized, while DHS rules appear to allow non-attorneys to represent "claimants," and that those agency rules have the force of law unless a court declares them invalid; what counts as a "claimant," and whether the cited case law applies, are legal questions the committee could not resolve.

Surveying ethics opinions and decisions from other jurisdictions (including Michigan's opinions on hearing officers and judges, and Indiana and Ohio decisions on a judge's duty to prevent unauthorized practice), the committee found the term "assist" in Rule 5.5(e) includes permitting the unauthorized practice of law in a proceeding over which an ALJ presides. It concluded that an ALJ who knowingly permits the unauthorized practice of law in such a proceeding violates Rule 5.5(e). The committee limited its holding to conduct that clearly falls within the definition of unauthorized practice, repeated that what constitutes unauthorized practice is a legal question it cannot answer, and did not decide whether an ALJ has a duty to report unauthorized practice occurring outside the ALJ's own proceeding.

In practice

This 2007 opinion applies North Dakota Rule of Professional Conduct 5.5(e). Under that rule, the committee held that an administrative law judge "assists" the unauthorized practice of law, and violates Rule 5.5(e), by knowingly permitting it in a proceeding over which the judge presides, limited to conduct that clearly falls within the definition of unauthorized practice. The committee held that whether a particular non-attorney appearance is unauthorized practice is a legal question outside its jurisdiction; where an agency rule with the force of law permits non-attorney representation (as DHS rules appear to do for "claimants"), the appearance may not be unauthorized practice at all. The committee did not decide whether an ALJ must report unauthorized practice occurring outside the ALJ's own proceeding.

Common questions

Q: Can an administrative law judge let a non-attorney represent a corporation at a hearing?

A: Not if doing so knowingly permits the unauthorized practice of law in the judge's own proceeding; the committee concluded that violates Rule 5.5(e). Whether a given non-attorney appearance is unauthorized practice is a separate legal question the committee did not answer.

Q: Does it matter that an agency rule allows non-attorney representatives?

A: Yes. The committee noted that agency rules have the force of law unless a court invalidates them, and that where such a rule permits non-attorney representation (as DHS rules appear to for "claimants"), the appearance may not be unauthorized practice, so permitting it would not violate Rule 5.5(e).

Q: Did the committee decide what counts as the unauthorized practice of law?

A: No. The committee repeatedly said that what constitutes the unauthorized practice of law is a legal question beyond its jurisdiction, and limited its holding to conduct that clearly falls within the definition.

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 5.5(e) (Model Rule 5.5, unauthorized practice of law; assisting another in the unauthorized practice). Because ALJs who are lawyers are subject to the Rules of Professional Conduct, the committee applied Rule 5.5(e) to an ALJ's decision to permit a non-attorney to appear, while treating the boundary of "the unauthorized practice of law" as a matter of statute (N.D.C.C. 27-11-01) and case law for the courts, not the committee, to decide.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 / N.D.R. Prof. Conduct 5.5(e) (assisting the unauthorized practice of law)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes:

• N.D.C.C. 27-11-01 (prohibiting the unauthorized practice of law)
• N.D.C.C. 28-32-06 (administrative rules have the force and effect of law)

Cases:

• State v. Benson, 376 N.W.2d 36 (N.D. 1985) (allowing non-attorney representation would sanction unauthorized practice)
• Terpstra v. Farmers & Merchants Bank, 483 N.E.2d 749 (Ind. Ct. App. 1985) (judge aiding unauthorized practice)
• Cain v. Merchant's Nat'l Bank & Trust Co., 268 N.W. 719 (N.D. 1936) (practice of law not limited to court conduct)

Other opinions cited:

• Michigan ethics opinions CI-404, CI-488, C-239, CI-551, JI-26 (hearing officers, judges, and unauthorized practice)
• Illinois Advisory Op. 93-15 (lay representation at administrative hearings)

See also

• AL Ethics Op. 1990-04: Law-Student Research Service
• ABA Formal Op. 506: Nonlawyer Assistants & Intake

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_07-01.pdf

Original opinion text

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

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS OPINION
Opinion No. 07-01
INTRODUCTION
The Ethics Committee received a request for an opinion asking whether Rule
5.5(e) of the North Dakota Rules of Professional Conduct prohibits administrative law
judges (ALJ) from allowing a non-attorney to represent the interests of a corporation at
administrative hearings.
ASSUMED FACTS

The Requesting Attorney raised two hypothetical fact situations in which a

corporation was a party:

1. Hearings involving the North Dakota Department of Human Services
   (DHS), which has promulgated rules that permit non-attorney
   representatives in administrative hearings.®

2. Hearings involving North Dakota administrative agencies, which do not
   have rules permitting non-attorney representation.

ISSUES PRESENTED

Whether an ALJ violates Rule 5.5(e) by permitting a non-attorney to represent a

corporation at a hearing involving DHS?

Whether an ALJ violates Rule 5.5(e) by permitting a non-attorney to represent a

corporation at a hearing involving an administrative agency which has not promulgated

an administrative rule permitting non-attorney representation?

! The Committee understands the term “administrative hearing” as used in the
request to mean an “adjudicative proceeding” as defined in N.D.C.C. § 28-32-01(1).
* The rules are somewhat vague regarding whether the rules can be equally

DISCUSSION

Rule 5.5(e) provides “[a] lawyer shall not assist another person in the
unauthorized practice of law.” The word “assist” is generally understood to mean to aid,
help or lend countenance. See Black’s Law Dictionary 111 (5" ed. 1979). Whether the
appearance of a non-attorney in a representative capacity at an administrative hearing
constitutes the unauthorized practice of law is a legal question beyond the jurisdiction of
this Committee.* For purposes of this opinion, the Committee assumes the appearance
of a non-atiorney in a represeniative capacity at an administrative hearing constitutes
the unauthorized practice of law, unless a law or administrative rule permits non-
attorney representation at the hearing. Thus, the question is whether an ALJ “assists”

a non-attorney in the unauthorized practice of law by permitting the non-attorney to

applied to both natural and artificial persons.

3 Perhaps this question is best addressed by the North Dakota Bar Association’s
Consumer Protection Committee, which has unauthorized practice of law as one of its
missions. See, e.g., Kentucky Bar Association Unauthorized Practice of Law Opinions
KBA U-56 (Jan. 1999) and KBA U-46 (Mar. 1994) (addressing similar issues at the
unauthorized practice committee level).

The request for the ethics opinion specifically inquired about the applicability of
Wetzel v. Schlenvoat, 2005 ND 190, 705 N.W.2d 836, to administrative hearings. This
is a legal question that cannot be answered by this Committee.

*N.D.C.C. § 27-11-01 prohibits the unauthorized practice of law. The practice of
law is not limited to preparation of cases and their conduct in court. See Cain v.
Merchant's Nat'l Bank & Trust Co., 268 N.W. 719 (N.D. 1936). The Committee did not
find any statutory or case law clearly stating whether a non-attorney representing an
attificial or natural person at an administrative hearing constitutes the practice of law.
An administrative rule promulgated by the Office of Administrative Hearings, N.D.
Admin. Code § 98-02-02-05, appears to limit representation of parties at administrative
hearings to licensed attorneys unless otherwise authorized by law. DHS has adopted
administrative rules that appear to allow non-attorneys to represent "claimants" at
administrative hearings. See N.D.A.C. §§ 75-01-03-01(1), (2), (4) and (5), 75-01-03-
03.1, and 75-01-03-15(1). These rules have the force and effect of law unless declared
invalid by a court. N.D.C.C. § 28-32-06. What is a "claimant" may be open to legal
interpretation, and is a legal question this Committee cannot answer.

appear in a representative capacity at an administrative hearing. The Committee found
ethics opinions and judicial decisions from other jurisdictions instructive on this issue.

In 1979, the Standing Committee on Professional and Judicial Ethics, State Bar
of Michigan, opined that a lawyer presiding over an administrative proceeding “in which
it is apparent a non-lawyer is practicing law’ violates the prohibition against aiding a
non-lawyer in the unauthorized practice of law. Cl-404. The Michigan Standing
Committee clarified Cl-404 in Cl-488, stating a lawyer who presides over an
administrative proceeding does not violate the ethical rules by permitting a non-lawyer
to practice law if the non-lawyer’s participation is expressly provided by law.

In 1986, the Standing Committee modified its earlier opinions to the extent it is
unclear whether the appearance of the non-lawyer constitutes the unauthorized practice
of law.2 The Standing Committee concluded its earlier opinions “inappropriately
place[d] the hearing officer in the position of determining whether, as a matter of ethics,
the appearance of a nonlawyer is unauthorized practice, when the question is unsettled
in the law.” MI Eth. Op. C-239. To the extent a non-lawyer’s conduct fell within
acceptable judicial or legislative definitions of unauthorized practice, the committee
concluded “the hearing officer may not ethically permit such practice. But to the extent
the parameters of unauthorized practice are not clear, the hearing officer discharges the
ethical duty by reporting such knowledge as is available to the State Bar Committee on
Unauthorized Practice of Law, the authority empowered to investigate and act upon

such practices.” Id. Thus, the Standing Committee concluded:

The Michigan Standing Committee noted it lacked jurisdiction to opine on
whether the facts presented in the request constituted the unauthorized practice of law.
MI Eth. Op. C-239. See also Cl-551 (“Whether or not the appearance of a nonlawyer in
a representative capacity in a contested hearing before the Board constitutes the
unauthorized practice of law is therefore a legal question beyond the jurisdiction of this
Committee.”).

An administrative hearing officer, presented with a situation which clearly
falls within accepted legal definitions of unauthorized practice of law, must
refuse to allow such practices in proceedings at which a hearing officer
presides.

An administrative hearing officer aware of conduct which does not clearly
fall within accepted legal definitions of unauthorized practice, but which
may arguably amount to the unauthorized practice of law, discharges the
ethical obligation by reporting the facts to the State Bar Committee on the
Unauthorized Practice of Law.

In 1990 the Standing Committee addressed whether judges have an ethical duty
to prevent the unauthorized practice of law. MI Eth. Op. Jl - 26. Although the Michigan
Code of Judicial Conduct contained no explicit judicial directive pertaining to the
prevention and reporting of unlawful practice of law, the Standing Committee noted
“iudges are also lawyers and subject to the Michigan Rules of Professional Conduct to
the extent the Code of Judicial Conduct is not inconsistent with the Rules.” Id. Relying
on Rule 5.5 of the Michigan Rules of Professional Conduct, the Standing Committee
stated “not only must the lawyer avoid assisting a nonlawyer in the unauthorized
practice of law, but the lawyer must take the appropriate measures to prevent
unauthorized practice.” Id. According to the Standing Committee, “[clommon sense
dictates that if lawyers are obligated to prevent an unlicensed person from practicing
law, then lawyers sitting as judges are equally bound to see that the practice of law is
limited to members of the legal profession.” Id. The Standing Committee stated:

A judge who knows of unauthorized practice of law activity, whether or not

the activity takes place within or without the presence of the judge, has an

ethical duty to take necessary steps to prevent the unauthorized practice

and must report the incident to authorities empowered to act upon the

matter. When a judge becomes aware during the course of the

proceeding that a representative of a party is not licensed to practice law,

the judge must stop the proceeding and should place as much information

as possible on the record and forward a transcript to the State Bar
Committee on Unauthorized Practice of the Law, together with the names

and addresses of all persons having relevant information about the
incident and copies of all available pleadings, documents, and
correspondence bearing upon the matter.

With regard to the judge who only suspects the unauthorized practice of law, the
Standing Committee opined:

A judge who suspects, but does not know, that a party to a proceeding
has or is receiving advice and assistance from an unlicensed person
outside the presence of the court should report the matter to the
appropriate authority authorized to investigate and act upon the situation.
The Committee does not believe judges are required to investigate and
report suspicious unauthorized practice of law activity. The judge’s
obligation to uphold the law does not mandate that a judge take action to
investigate violations of law that occur outside the judge’s presence.

This Committee could not locate a North Dakota Supreme Court case directly on

point. A case of note, however, is State v. Benson, 376 N.W.2d 36 (N.D. 1985). In

Benson, the criminal defendant, Mr. Benson, sought to be represented by a non-
attorney. The trial court judge refused to allow the representation. Id. at 38. Although
the case’s primary focus was whether Mr. Benson had a Sixth Amendment right to be
represented by a non-attorney, the Court wrote that allowing such representation “would
sanction the unauthorized practice of law... .” Id. This opinion suggests that judges in
North Dakota have a duty to prevent unauthorized practice of law in judicial
proceedings.

Some courts in other jurisdictions have found a judge has an ethical duty to

prevent the unauthorized practice of law. For example, in Terpstra_v. Farmers &

Merchants Bank, 483 N.E.2d 749, 760 (Ind. Ct. App. 1985), the court held a judge

would be aiding a non-lawyer in the unauthorized practice of law if the judge permitted

the party’s unlicensed counsel “to sit at the counsel table and offer him legal advice.”

Relying on Rule 5.5, the court in State v. Block, No. 87488, 2007 WL 1219292, at “2

(Ohio Ct. App. Apr. 20, 2007), stated that “[jJudges have the ethical duty to prevent the

unauthorized practice of law.” Similarly, in Village of Lisbon v. Merino, No. 95 CO 67,

1997 WL 433530, at *2 (Ohio Ct. App. July 30, 1997), the court stated “a trial judge has
the ethical duty to prevent unauthorized practice of law and to do so may refuse to allow
a non-attorney to counsel a party in court during trial.” But see IL Adv. Op. 93-15
(concluding an attorney's participation in an administrative hearing, whether as an
attorney or hearing officer, where a lay person represents another party does not
constitute aiding in the unauthorized practice of law).

This Committee finds the above decisions persuasive in administrative matters to
the extent they conclude the term "assist," as used in Rule 5.5(e), includes permitting
the unauthorized practice of law in a proceeding over which an ALJ presides. Thus, in
the Committee’s opinion, an ALJ “assists” in the unauthorized practice of law, and is in
violation of Rule 5.5(e), if the ALJ knowingly permits the unauthorized practice of law in
a proceeding over which the ALJ presides. This opinion is limited to actions which
clearly fall within the definition of the unauthorized practice of law and are conducted in
a proceeding over which the ALJ presides. What constitutes the unauthorized practice
of law is a legal question this Committee cannot answer. The Committee has not been
asked to, and does not decide, whether an ALJ has an ethical duty to report the
unauthorized practice of law that occurs outside of an administrative proceeding over

which the ALJ presides.

CONCLUSION

The Committee finds it is a violation of Rule 5.5(e) for an Administrative Law
Judge to knowingly permit the unauthorized practice of law at a proceeding over which
the Administrative Law Judge presides.

This opinion is provided pursuant to Rule 1.2(B), North Dakota Rules for Lawyer
Discipline, which provides:

A lawyer who acts in good faith and reasonable reliance on a

written opinion or advisory letter of the ethics committee of the association

is not subject to sanction for violation of the North Dakota Rules of

Professional Conduct as to the conduct that is the subject of the opinion or

advisory letter.

This opinion was prepared by Alvin O. Boucher and Douglas A. Bahr and was

approved by a unanimous vote of the Ethics Committee on the 27" day of August,

2007.

Ti
Dann Greenwood, Chair
Ethics Committee