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Posted by on Apr 3, 2017 in Administrative Law, Attorney Discipline, Civil | 0 comments

Powell v. UCBR: Suspended Attorney May Not Practice Before Executive Agencies

The pecking order of preferred advocates, the non-lawyer is preferable to the suspended lawyer. In Powell v. UCBR, the Pennsylvania Supreme Court ruled that, while a non-attorney may practice before the Unemployment Compensation Board of Review, an attorney under disciplinary suspension may not.

Powell hired an attorney to represent him before the UCBR who, as it turned out, had been suspended from the practice of law and forbidden from appearing “in any hearing or proceeding,” including one before a referee in an executive agency setting. Having been told he must hire someone else, Powell went out and, in a stunning display of either defiance or ignorance, hired a second suspended attorney. Upon his second failure to secure qualified counsel, UCBR allowed him to proceed pro se.

Dougherty: “Other representative” does not include disqualified individuals

As a general matter, any party in a UCBR proceeding may be represented “by an attorney or other representative.” 43 P.S. § 774. But in a case of the specific controlling the general, the majority found that Pennsylvania Rule of Disciplinary Enforcement 217’s prohibition from appearing before any tribunal disqualified the attorney from a proceeding that would not otherwise require a law license.

Essentially, though attaining admission to practice law is not required to represent a party before executive agencies, where the privilege to practice is abused, the transgressor is affirmatively prohibited even from what the passive may perform. Put differently, everyone is presumed competent to be a representative in a UCBR proceeding, but the presumption is overcome where an attorney has been demonstrated unfit to practice law. While the non-believer may be welcome in the assembly, the ex-communicated adherent may no longer enter.

In what may turn out to be a significant paragraph (discussed more below), the Court emphasized that there is no right to counsel in civil proceedings under either the Pennsylvania or federal constitutions. In a coincidental twist, the Court quotes the Supreme Court of the United States case Powell v. Alabama, 287 U.S. 45 (1932) in its brief discussion of the right to counsel, noting that the barring of properly-retained civil counsel for “arbitrary” reasons may violate due process, but that “arbitrariness” cannot be attributed to a governing body’s proper regulation of the practice of law.

Because the Court found that prior caselaw has left Powell with at least a colorable claim that he could have suspended counsel represent him, the case was remanded to the UCBR to allow Powell to proceed with a new hearing either pro se or with qualified representation. This leaves the Court in the rather odd position of remanding a case that was lost on the merits by a pro se litigant with the possibility that the litigant will choose to proceed with a second hearing, still pro se.

Baer: I agree, but would not remand

Justice Baer wrote a brief concurrence/dissent in which he agreed with the reasoning of the majority, but would not remand for further proceedings because Powell knew, at least the second time, that he could not have a suspended attorney as his representative, and even after that, chose to proceed pro se. Accordingly, Baer believes he should not be given another bite at the apple.

Todd: The Statute says “or other representative.”

Relying on the text’s plain averment that there are two classes of individual who may represent the claimant (or other party) before the UCBR, Justice Todd argued that a disbarred or disciplined attorney stands in the shoes of any other non-attorney, and should be permitted to practice before executive agencies.

Conclusion: Implications for Civil Gideon?

The most important conclusion one could draw from this case is the simple fact that the right to counsel is not absolute. The courts of the Commonwealth, and with finality, the Supreme Court of Pennsylvania, retain power to regulate the profession and to determine who may practice before tribunals, whether judicial or executive. The majority opinion clarifies that there is no right to civil counsel under the Pennsylvania Constitution, and leaves interesting breadcrumbs (arguably in dicta) to suggest that Civil Gideon will not take hold in Pennsylvania. The Court stated that there was “no applicable support for [Powell’s] claim of constitutional entitlement” to counsel in a civil matter. As legal aid organizations and the Bar Association continue pushing for a recognition of Civil Gideon, some of the language in this case may be used by opponents to blunt the movement.

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