August 11, 1980
An attorney presiding as an administrative hearing officer pursuant to the Administrative Procedures Act over a contested post-commitment proceeding before the Department of Social Services, Youth Parole and Review Board, may not allow a nonlawyer employee of the Department of Social Services to appear in a prosecutorial capacity "as" the Department of Social Services, without violating the prohibition against aiding a nonlawyer in the unauthorized practice of law.
References: MCPR Canon 3; MCPR DR 3-101(A).
In 1976 the Director of the Department of Social Services expanded the duties of the Youth Parole and Review Board to include, inter alia, the conduct of contested case hearings involving 1974 P.A. 150 State wards. 1974 P.A. 150 State wards are youths who have been committed to the Department under the Youth rehabilitation Services Act by the probate courts for acts which, if committed by an adult, would constitute crimes (non-status offenses) or acts not amounting to crimes which violate the Michigan Juvenile Code (status offenses). In cases where a youth has been committed to the Department, and thereafter commits acts which would constitute a crime if committed by an adult (non-status offenses), the Board may conduct a post commitment contested case violation hearing. The hearings are conducted by lawyers serving as administrative hearing officers pursuant to the Michigan Administrative Procedures Act. The hearings consist of two phases: adjudicative and dispositional. Under the rules promulgated by the Director, the Department may be represented by a nonlawyer employee and the ward may be represented by a personal attorney or, if indigent, by state-appointed counsel, pursuant to Walls v. Director of Institutional Services, 84 Mich App 355 (1978).
A lawyer serves as an administrative hearing officer for the Youth Parole and Review Board of the Department of Social Services, pursuant to the Administrative Procedures Act of 1969, as amended, and presides over contested case post commitment violation hearings arising under the Youth Parole and Review Board jurisdiction. The lawyer asks whether presiding in a contested case proceeding in which a nonlawyer employee of the Department of Social Services appears as advocate to present the position of the Department would violate ethics rules.
MCPR Canon 3 provides that "a lawyer should assist in preventing the unauthorized practice of law." MCPR DR 3-101(A) prohibits a lawyer from aiding a nonlawyer in the unauthorized practice of law, but does not specify what activities constitute the "practice of law." ABA Model Code of Professional Responsibility Ethical Consideration 3-5 states that the practice of law relates to the rendition of services that require a lawyer's professional judgment, defined as the "educated ability to relate the general body and philosophy of law to a specific legal problem of a client." ABA i1272 indicates that courts of each jurisdiction should provide a definition as to what activities constitute "the practice of law." Whether or not the appearance of a nonlawyer in a representative capacity in a contested hearing before the Board constitutes the unauthorized practice of law is therefore a legal question beyond the jurisdiction of this Committee.
For purposes of this opinion, we will assume that the activities of a nonlawyer under the facts presented constitute unauthorized practice of law.
In CI-404, this Committee opined that a lawyer administrative hearing officer who presides over a contested hearing before the Michigan Public Service Commission pursuant to the Administrative Procedures Act of 1969, as amended, in which one of the litigants is represented by a nonlawyer violates the prohibition of MCPR DR 3-101(A). In CI-488 we distinguished nonlawyer practice before the Michigan Employment Securities Commission because the wording of the Michigan Employment Security Act (Section 31) expressly permits any individual claiming benefits or any employer to be represented in any proceeding before the Commission by "counsel" or "other duly authorized agent"; therefore a lawyer who presided over such a proceeding was not violating ethics rules because the nonlaywer's participation was expressly provided by law.
Referring to The Social Welfare Act, P.A. 1939, No. 280; MCLA 400.1 et seq. we find no provision comparable to Section 31 of the Michigan Employment Security Act, which would authorize a nonlawyer to represent the interests of a litigant before the Department of Social Services or an agency created within the Department, such as the Youth Parole and Review Board. The legislative jurisdiction of the Youth Parole and Review Board is set forth in Section 121 of the Act (MCLA 400.121), which says:
"The Parole and Review Board shall:
"(a) Be responsible for approval of: releases from all youth training school facilities of the Department, return to such facilities from release status, and discharge from legal delinquency commitment;
"(b) Have such other duties and responsibilities and shall be authorized by law or the director." Emphasis added.
The Department of Social Services is under the direct supervision of the executive branch of government. The administration of the powers and duties of the Department are vested in a five member commission appointed by the governor, by and with the advice and consent of the senate, MCLA 400.2. The Director of the Department is appointed by the Commission, MCLA 400.3, and is subject to all rules and regulations adopted by the Commission governing the policies of the Department with such executive duties or otherwise provided by law, MCLA 400.6. The Social Security Welfare Act does not authorize nonlawyer employees of the Department of Social Services to appear on behalf of the Department or "as" the Department in a prosecutorial capacity in quasi-judicial criminal proceedings arising under the Youth Parole and Review Board jurisdiction.
A person or department charged with the responsibility of representing the interests of the state, is under a duty to ensure that impartial justice is done. Initially, there is an obligation to determine if there are reasonable grounds to proceed with a criminal charge. Thereafter, all evidence tending to establish guilt or innocence must be properly brought to the attention of the presiding official. This awesome task necessarily entails the educated wisdom of a representative trained in the substantive and procedural aspects of the law. Absent legislative directive authorizing a nonlawyer to appear before the department in a representative capacity, a hearing officer who presides over a contested hearing before the Department of Social Services, Youth Parole and Review Board, in which one of the litigants is represented by a nonlawyer, violates the prohibition against aiding a nonlawyer in the unauthorized practice of law. To say that the nonlawyer employee is acting "as" the Department of Social Services merely begs the question. The Department can only act by and through its employees and representatives whether they be legal or nonlegal personnel.