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.
