Wednesday, September 23, 2015

UC - hearings - claimant representative - Harkness

Powell v. UCBR – Cmwlth. Court – Sept. 11, 2015



Claimant showed up at successive continued hearings, represented by one then another attorney who was under suspension by the Supreme Court. 


Analyzing the caseunder Disciplinary Rule 201(a), the Board found that the attorneys were prohibited from representing claimant and affirmed the referee decision that claimant had committed willful misconduct.


The Court reversed holding that the questions was not whether representing a party before an unemployment compensation referee constitutes the practice of law, but rather, whether the Board acted properly when it prohibited the suspended attorneys from representing Claimant at the hearing.


Pursuant to Section 214 of the UC Law, Claimant had a statutory right to be represented by his designee at an unemployment compensation hearing.  The Supreme Court has held that the representative need not be an attorney, because representation before an unemployment referee does not constitute the practice of law. See Harkness v. UCBR, 920 A.2d 162 (Pa. 2007).


Rather than applying Section 214 of the Law and the Supreme Court’s decision in Harkness, the Board analyzed the Disciplinary Rules in considering if suspended attorneys could act as a claimant’s representative during a referee hearing, rejecting the argument that the suspended attorneys were acting as representatives, not as attorneys, for his hearings. 


The court held that only the Supreme Court and Disciplinary Board, have the power to interpret and enforce the Disciplinary Rules—not the Board.  It also noted that the Board, in ignoring its own rules and applying the Disciplinary Rules, ultimately sanctioned Claimant for the attorneys’ potential violation of the Disciplinary Rules by denying Claimant representation at the second hearing.  


The Board,  therefore, erred when it interpreted the Disciplinary Rules to prevent the two suspended attorneys from representing Claimant, and this matter should be remanded to the Board to allow Claimant to have a hearing with representation of his choice.