Joe Mueller Illinois Department of Employment Security NASWA Legal Affairs Presentation Representation by Non-Attorneys in UI Hearings

820 ILCS 405/806 Sec. 806. Representation. Any individual or entity in any proceeding before the Director or his representative, or the Referee or the Board of Review, may be represented by a union or a duly authorized agent. (Source: P.A. 85-956)

705 ILCS 205/1 Sec. 1. No person shall be permitted to practice as an attorney or counselor at law within this State without having previously obtained a license for that purpose from the Supreme Court of this State. *** Any person practicing, charging or receiving fees for legal services or advertising or holding himself or herself out to provide legal services within this State, either directly or indirectly, without being licensed to practice as herein required, is guilty of contempt of court and shall be punished accordingly, upon complaint being filed in any Circuit Court of this State. The remedies available include, but are not limited to: (i) appropriate equitable relief; (ii) a civil penalty not to exceed $5,000, which shall be paid to the Illinois Equal Justice Foundation; and (iii) actual damages. ****

People ex rel. Chicago Bar Ass’n v. Goodman 366 Ill. 346, 349 (1937) The power to regulate and define the practice of law is a prerogative of the judicial department . . . . The legislative department may pass acts declaring the unauthorized practice of law illegal and punishable. Such statutes are merely in aid of, and do not supersede or detract from, the power of the judicial department to control the practice of law. *** The practice of law, both in courts and out of courts, by one not licensed, is an illegal usurpation of the privilege of an attorney and is a contempt of this court.

People ex rel. Illinois State Bar Ass’n v People ex rel. Illinois State Bar Ass’n v. People’s Stock Yards State Bank 344 Ill. 462, 475 (1931) Practicing as an attorney or counselor at law, according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill.

Goodman pp. 354-356 – Representation in workers’ comp cases constituted the practice of law, because it involved many delicate questions of law and fact: Did facts present cause under state workers’ comp law or federal statute? Does injured employee have common law action to recover damages for injuries? Does statute create multiple causes of action from same event? pp 354-356

Perto v. Board of Review 274 Ill. App. 3d 485 (2nd Dist. 1995) Non-attorney employer service firm not practicing law by completing protest form and subsequently sending letter appealing determination. Firm did not participate at benefit appeal hearing. Court noted relative simplicity and informality of IDES proceedings, so that formal presentation of legal arguments largely unnecessary. Court reserved judgment on participation of firms in administrative hearings.

Sudzus v. Dep’t of Employment Security 393 Ill. App. 3d 814 (1st Dist Non-attorney owner of corporation not practicing law by appearing at benefit appeal hearing where he testified and questioned claimant and other witnesses. Owner’s answers and questions did not require legal knowledge or skill.

Grafner v. Dep’t of Employment Security 393 Ill. App. 3d 791 (1st Dist Non-attorney employer service firm did not practice law by representing employer/parish at benefit appeal hearing and asking “fact clarifying questions.” Parish priest did not practice law by appearing at hearing where he testified and offered closing remarks.

Rationale for Sudzus and Grafner Decisions Activities of non-attorney representatives largely routine, focusing primarily on establishing facts. Representative does not analyze complex and intricate legal problems; acts as adjunct to employer in offering viewpoints on events at issue. UI appeal hearings intended to be brief and informal; requiring legal representation could dissuade employers from defending claims. UI appeal hearings typically involve relatively minimal amounts. Illinois legislature expressly contemplated non-attorney representation.

Stone Street Partners v Chicago Dep’t of Administrative Hearings 12 N Stone Street Partners v Chicago Dep’t of Administrative Hearings 12 N.E.3d 691 (1st Dist. 2014) Representation of corporations at administrative hearings must be made by a licensed attorney at law. Dissent: issue of nonattorney representation not essential to ultimate holding; inconsistent with precedent; effectively invalidates all administrative rules permitting nonattorneys to represent corporations at administrative hearings.

Current Status City of Chicago has appealed Stone Street. Illinois Attorney General has filed amicus brief with Illinois Supreme Court in support of nonattorney representation of parties in administrative proceedings. Nonattorneys continue to represent parties before IDES.

Caveats Non-attorney representation does not extend to courts of law. Grafner Court did not conclude that non-attorney representation in IDES proceedings may never be considered unauthorized practice of law. Grafner Court noted representative did not present case or statutory support for employer’s position. One of three justices in Grafner concluded representative did engage in practice of law. Stone Street pending before Illinois Supreme Court.