Sunday, November 08, 2015

UC - representation by suspended attorney

Powell v. UCBR – Cmwlth. Court – November 6, 2015



Claimant was represented by an attorney whose license to practice law had been suspended.   At the hearing on the merits, the referee refused to let the attorney take part, only observe, after which the referee entered a decision denying benefits, later affirmed by the Board. 


Citing Harkness v. Unemployment Compensation Board of Review, 920 A.2d 162 (Pa. 2007), and In the Matter of David Louis Bargeron, 130 DB 2005 (Pa. July 27, 2011)  the court reversed and remanded for a new hearing.  The court said that the question in the case was not whether the suspended attorneys should be sanctioned as a matter of  discipline by the Pennsylvania Supreme Court for violating Disciplinary Rule 217(j). The question is whether the Board or referee may enforce Disciplinary Rule 217(j) to deprive a claimant of his right to representation of his choice under Section 214 of the Law, which does not preclude a “suspended attorney” from serving as a claimant representative.  The court held that the referee and Board could not do so.


The court noted that “the jurisdiction of the Disciplinary Board and the Supreme Court to prosecute and enforce the Disciplinary Rules is “exclusive.” Pa. R.D.E. 201(a). As Bargeron illustrates, both have taken steps to discipline lawyers who violate Rule 217(j) by representing clients in unemployment compensation matters. Here, the Board ignored its own governing statute and attempted to step into the shoes of the Disciplinary Board and the Supreme Court, effectively sanctioning Claimant for Mr. Ostrowski’s violation of the Disciplinary Rules by denying Claimant representation at the second hearing.


Should this situation arise again, it would be more appropriate, and consistent with both Disciplinary Rule 217(j) and Section 214 of the Law, for the referee and the Board to advise the suspended attorney that the suspended attorney’s representation of the claimant would be a violation of Disciplinary Rule 217(j). If the suspended attorney chooses, nonetheless, to continue the representation, the referee and Board must allow it under Section 214 of the Law, but they may refer the suspended attorney to the Disciplinary Board for further action consistent with Bargeron. If the suspended attorney chooses to withdraw, then the referee and the Board should afford the claimant an opportunity to find alternative representation.


The court vacted the order of the Board and remanded the case to the Board for a new hearing.


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