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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