July 8, 1981
An attorney employed by a lay organization for the purpose of representing employees in hearings before the MESC cannot permit the lay intermediary to interfere in the relationship of the lawyer and the individual client he/she serves.
A lawyer employed by a lay organization to represent clients in hearings before the MESC should identify him/herself as an attorney on all pleadings filed in the case.
The authority of the attorney to appear in a representative capacity before the MESC must be granted directly from the client after a full disclosure of the business relationship.
References: DR 3-102(A), DR 3-101(A), DR 5-107(B) and DR 1-102(A)(4).
You are an attorney associated with a proprietorship form of doing business established for the purpose of representing parties at hearings before the Michigan Employment Security Commission (MESC) and in have raised the following questions:
First, can an individual who operated a corporate business representing employers in MESC referee hearings change the form of business to a proprietorship for the sole purpose of attending referee hearings while maintaining his or her corporate entity for other related business purposes?
The Committee is prohibited from answering inquiries by individual members concerning the conduct of another or concerning conduct that has already taken place. Accordingly, the Committee cannot answer your first question.
Second, can a lawyer be employed by a proprietor agent for the purpose of representing employers at MESC referee hearings?
If yes, must forms such as requests for hearings and appearances are signed as attorney or may an attorney act as an agent of an agent and sign form as such?
If no, must the attorney maintain a separate legal business entity?
(1) If yes to B, must the authority of the attorney to appear before the MESC be granted directly from the employer-client or can it come from the employer authorized agent?
You state in your inquiry that your employer-agent insists that you designate yourself as "agent" without the use of the word "attorney" on all pleadings filed during the course of your representation of the client before the MESC. You further indicate that some of the MESC referees have informed you that since you are a lawyer you must sign all forms identifying yourself as an attorney at law.
With respect to that portion of your question relating to your employment by a "proprietor agent," who it is assumed is not an attorney, a number of Disciplinary Rules are relevant to your relationship. DR 3-102(A) provides that:
DR 3-101(A) provides that:
"A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law."
DR 5-107(B) provides that:
"A lawyer shall not permit a person who recommends, employs, or pays him or her to render legal services for another to direct or regulate his/her professional judgment in rendering such legal services."
DR 5-107(C) provides that:
"A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) A non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) A non-lawyer is a corporate director or officer thereof; or
(3) A non-lawyer has the right to direct or control the professional judgment of the lawyer."
The foregoing Disciplinary Rules would not prohibit your employment by a lay organization provided there is no interference in the relationship of the lawyer and the individual client he/she serves.
Turning next to the subject of how you should designate your representative capacity on appearances and other forms filed in connection with hearings before the MESC, this Committee has previously expressed the opinion that an attorney employed as a hearings referee before the MESC would not be in violation of Canon 3 and DR 3-101(A) by permitting a non-attorney to represent a claimant or employer in a proceeding before the Michigan Employment Security Commission because the wording of Section 31 of the Michigan Employment Security Act 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." See CI-488.
The Committee is of the opinion that you should not act as an agent of an agent and sign forms as such but rather sign all forms in your individual representative capacity. While we find no specific authority requiring a lawyer to designate him/herself as an attorney on pleadings filed with the MESC, we believe it appropriate to so do. A lawyers conduct is governed by the Code of Professional Responsibility and the Code is applicable to all lawyers regardless of the employment situation in which they find themselves. A lawyer has a duty to maintain the integrity of the legal profession and not to engage in any conduct involving deceit or misrepresentation. See Canon 1 and DR 1-102(A)(4). A lawyer should always identify him/herself as an attorney when appearing in a representative capacity on behalf of another. To withhold ones true identity, as an attorney is likely to create the impression that the individual is subject to a lesser standard of ethical responsibility in the performance of his/her professional duties when such is not the case.
In response to your final inquiry, it is necessary that you maintain a separate legal business entity provided your relationship with your employer is in accord with DR 3-102(A), DR 3-103(A) and DR 5-107(B). Candor requires that the client be fully informed of your employment relationship and, further, that the client consents to your representation of his/her interests before the MESC.