September 3, 1986
A lawyer aware of facts relating to the unauthorized practice of law must take appropriate action to prevent it.
An administrative hearing officer, presented with a situation which clearly falls within accepted legal definitions of unauthorized practice of law, must refuse to allow such practices in proceedings at which hearing officer presides.
An administrative hearing officer aware of conduct which does not clearly fall within accepted legal definitions of unauthorized practice, but which may arguably amount to the unauthorized practice of law, discharges the ethical obligation by reporting the facts to the State Bar Committee on the Unauthorized Practice of Law.
References: MCPR Canon 3; DR 3-101(A); MCLA 600.916; MSA 27A.916; State Bar v Cramer, 399 Mich 116 (1976); State Bar v Galloway, 422 Mich 188 (1985). CI-404 and CI-551 are distinguished.
In a contested hearing at which a lawyer presides as an administrative hearing officer, a state agency which is party to the proceedings seeks to be represented by a nonlawyer employee. The hearing officer asks:
Does the appearance of a nonlawyer employee of a state agency in a representative capacity on behalf of that agency constitute the "practice of law?"
Does the ethical duty to refrain from aiding unauthorized practice of law impose upon a lawyer an ethical obligation to prevent that practice?
If there is an ethical duty to prevent unauthorized practice of law, what actions are demanded of an ethically responsible lawyer?
MCPR Canon 3 states:
DR 3-101(A) states:
Proposed Michigan Rule of Professional Conduct 5.5 is very similar in wording and identical in meaning.
It is unlawful for a person to practice law without a license. MCLA 600.916; MSA 27A.916. It is likewise unlawful for a corporation, except a professional corporation, to represent anyone other than itself. MCLA 450.681; MSA 21.311. Unauthorized practice of law is punishable as a contempt of court. MCLA 600.916; MSA 27A.916
It has proved virtually impossible to formulate a comprehensive definition of unauthorized practice of law. Our Supreme Court in State Bar v Cramer, 399 Mich 116, 133 (1976) stated: ". . . any attempt to formulate a lasting, all encompassing definition of 'practice of law' is doomed to failure."
The task of defining unauthorized practice in Michigan is left to the sometimes concurrent jurisdiction of the courts and the Legislature. See the sub silentio recognition of legislative prerogatives in State Bar v Galloway, 422 Mich 188 (1985), which held that MCLA 481.31; MSA 17.533, permits nonlawyers to present employers in quasi-judicial proceedings before the Michigan Employment Security Commission.
The State Bar of Michigan has prosecutorial authority and discretion with respect to unauthorized practice. Rule 16, Supreme Court Rules Concerning the State Bar. It exercises its prosecutorial authority by means of civil contempt proceedings. The bylaws of the State Bar of Michigan, Article VI, Section 1, give jurisdiction for investigation and prosecution of unauthorized practice matters to the Standing Committee on the Unauthorized Practice of Law. The Committee on Judicial and Professional Ethics has no jurisdiction in this regard. In this specific case, a hearing officer brought the operative facts to the attention of the Committee on the Unauthorized Practice of Law which reviewed those facts and exercised it discretion by declining to prosecute. Such is its prerogative.
Because of lack of jurisdiction, this Committee cannot opine on whether the facts presented here constitute the unauthorized practice of law.
While MCPR DR 3-101(A) speaks of in terms of a lawyer "not assisting" unauthorized practice, the advice of MCPR Canon 3 is broader, counseling a lawyer to "assist in preventing" unauthorized practice. Very little authority is available to define how far this obligation extends beyond simply refraining from assisting unauthorized practice. We have in prior opinions assumed, without discussion, an obligation to do what is in one's power to prevent unauthorized practice. CI-404; CI-551. With respect to the ethical conduct of lawyers, DR 1-103 requires the disclosure of unprivileged information which suggests unethical conduct by another lawyer. We believe that DR 3-101(A) likewise requires more of a lawyer than simply avoiding active assistance to unauthorized practice. It is our opinion that an attorney has an ethical obligation to employ appropriate means to prevent unauthorized practice of law by nonlawyers. Emphasis added.
In CI-404 and CI-551 this Committee opined that an administrative hearing officer judge cannot ethically allow the appearance of a nonlawyer representative in an administrative proceeding. On further reflection, however, we conclude that CI-404 and CI-551 inappropriately place the hearing officer in the position of determining whether, as a matter of ethics, the appearance of a nonlawyer is unauthorized practice, when the question is unsettled in the law. We offer no opinion as to whether a hearing officer, within the scope of the officer's quasi-judicial functions, has a legal obligation to define the unauthorized practice of law, or whether such a determination would fall outside the confines of the authority of the hearing officer.
To the extent that conduct falls within accepted judicial and/or legislative definitions of unauthorized practice, we reaffirm that the hearing officer may not ethically permit such practice. But to the extent that the parameters of unauthorized practice are not clear, the hearing officer discharges the ethical duty by reporting such knowledge as is available to the State Bar Committee on Unauthorized Practice of Law, the authority empowered to investigate and act upon such practices. In stating this opinion, we intentionally paraphrase MCPR DR 1-103, which requires essentially the same response to knowledge concerning ethical violations of a lawyer.
We do not believe that the law is settled as to whether representation of a state agency in a state administrative proceeding by a nonlawyer constitutes the unauthorized practice of law. Because of this and the fact that the matter has been reported to the Standing Committee on the Unauthorized Practice of Law, we believe the hearing officer has discharged any ethical obligations.