How Thurgood Represents Massachusetts Employees

The right to choose a representative

• Any person the party authorizes. “Authorized Representative. An attorney, legal guardian or other person authorized by a Party to represent him in an Adjudicatory Proceeding.”801 CMR 1.01(2)(c)
• Appearance. “An individual may appear in his or her own behalf, or may be accompanied, represented and advised by an Authorized Representative.”801 CMR 1.01(3)(a)
• At the party’s expense. “Each Party may present his or her own case, or may be assisted by an Authorized Representative at his or her expense.”801 CMR 1.02(10)(g)1
• Scope. The standard rules govern “the conduct of formal Adjudicatory Proceedings of all Commonwealth agencies governed by M.G.L. c. 30A.” The MCAD conducts its proceedings under its own rules of procedure, 804 CMR 1.00, set out in the next section.801 CMR 1.01(2)(a)

Duly authorized representative

“Duly Authorized Representative means any person who is not an attorney and is authorized by a party to act and communicate on their behalf with the Commission pre-probable cause.”

“Representative means counsel or a duly authorized representative.”

Why Thurgood’s MCAD representation is not the unauthorized practice of law

• The Commission authorizes it. A duly authorized representative is “any person who is not an attorney and is authorized by a party to act and communicate on their behalf with the Commission pre-probable cause.” Representation the Commission’s own rules give to non-attorneys is not, in those circumstances, an action “only a lawyer is entitled to perform.”804 CMR 1.02Matter of Hrones, 457 Mass. 844 (2010)
• Within the limits the rules set. Thurgood helps the complainant draft the complaint, the complainant files it, and Thurgood acts only after the complainant files a written authorization with the Commission. The representation ends at the probable cause disposition.804 CMR 1.15(13)804 CMR 1.15(14)
• Acting on the worker’s claim, for pay. Section 41’s claims clause is aimed at non-attorneys who claim power over other people’s damages claims. Thurgood claims no power of its own: its authority to act on a worker’s MCAD claim, including at mediation, is the authority the Commission’s rules give a duly authorized representative, “authorized by a party to act and communicate on their behalf with the Commission,” granted by the worker in a written authorization filed with the Commission and revocable “at any time.” Thurgood does not bring suit on any claim. Being paid for that representation is what Massachusetts agencies’ own rules contemplate: a party “has the right to be represented at his or her own expense” (see Retainer & fees).804 CMR 1.02804 CMR 1.15(13)804 CMR 1.06(1)(e)M.G.L. c. 221, § 41106 CMR 343.150121 CMR 1.310130 CMR 610.016(A)
• Never held out as attorneys. Both statutes reach holding oneself out as a lawyer. Thurgood’s retainer states that Thurgood is not a law firm and its representatives are not attorneys, and Thurgood does not describe itself otherwise.M.G.L. c. 221, § 46AM.G.L. c. 221, § 41
• No court practice. Thurgood does not file cases in court or remove them there. A matter that must go to court is placed with a licensed attorney.

Massachusetts agencies recognizing paid representatives

Massachusetts’s standard rules for agency hearings, required by the Administrative Procedure Act, provide that a party may pay for representation: “Each Party may present his or her own case, or may be assisted by an Authorized Representative at his or her expense.”

The MCAD’s rules address attorney’s fees but say nothing about how a duly authorized representative is paid. Other Massachusetts agencies’ hearing rules say the same as the standard rules: each provides that a party may be represented at the party’s own expense.

• Department of Transitional Assistance — “An appellant has the right to be represented at his or her own expense by a person who is authorized in writing to do so or is present at the hearing with the appellant.”106 CMR 343.150
• Executive Office of Health and Human Services, fair hearings — “An appellant has the right to be represented at his or her own expense by any person who is authorized in writing to do so or who accompanies the appellant to the hearing.”121 CMR 1.310
• MassHealth — “An appellant has the right to be represented at his or her own expense by an appeal representative as defined in 130 CMR 610.004.”130 CMR 610.016(A)

Model Rules of Professional Conduct

• Rule 5.4(a) — “A lawyer or law firm shall not share legal fees with a nonlawyer.” A worker referred to Thurgood becomes Thurgood’s client. Thurgood pays the referring firm a flat fee that does not vary with the recovery, and no part of any legal fee the firm earns comes back to Thurgood.Model Rule 5.4(a)
• Rule 5.4(c) — “A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.” A matter referred to Thurgood is Thurgood’s to carry. The referring firm renders no legal services on it, and Thurgood directs no lawyer’s judgment.Model Rule 5.4(c)
• Rule 1.5(e) — “A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable.” The division here runs between Thurgood and the referring firm rather than between two lawyers, and Thurgood holds it to the same three conditions: the referring firm’s share reflects the cost to acquire the potential client, the retainer sets out the arrangement and each share in writing with the worker’s agreement, and the total is reasonable.Model Rule 1.5(e)

Filing and authorization

• Authorization procedure. Thurgood helps draft the complaint, and the complainant files it: “A duly authorized representative is not allowed to file a complaint through the MCAD Case Portal on behalf of a complainant but may assist a complainant in the drafting and preparation of a complaint through the MCAD Case Portal.” The complainant then authorizes Thurgood in writing: “After such complaint is filed, the complainant may formally authorize the duly authorized representative to act on their behalf,” and “[a]ny authorization or revocation shall be filed in writing by the party with the Commission.”804 CMR 1.15(13)
• The worker stays in control. “[A] party shall have exclusive control over whether a duly authorized representative appears on their behalf and a party may authorize or revoke such representation at any time.”804 CMR 1.15(13)

What the representative carries

• A recognized representative. “Representative means counsel or a duly authorized representative,” so the rules that speak to a party’s representative reach Thurgood once the complainant authorizes it.804 CMR 1.02
• Requests through the MCAD Case Portal. “[A]ll parties and representatives shall use the MCAD Case Portal to make such requests,” which “include, but are not limited to, requests for reasonable accommodation, requests for language assistance services, requests to withdraw the complaint, requests for mediation, pre-probable cause requests for extensions of time, and pre-probable cause requests for protective orders.” Those requests take the place of motions: “parties and representatives shall make specific requests recognized by 804 CMR 1.00 using the MCAD Case Portal in lieu of motion practice.”804 CMR 1.13(1)804 CMR 1.13(3)(a)
• Rebuttal. The complainant’s written rebuttal goes to the employer’s side through its representative: “A complainant shall serve a copy of the written rebuttal on a pro se respondent or on respondent’s representative, unless the rebuttal is subject to a protective order pursuant to 804 CMR 1.05(12).”804 CMR 1.05(9)(c)
• Investigative conference. “A party may be accompanied at an investigative conference by their representative.” Anyone else attends at the Commission’s discretion: “Participation by any other person other than a representative shall be at the discretion of the Commission.”804 CMR 1.05(10)(c)

Representation at an MCAD mediation

• The same rules as the rest of the case. “Representation for the parties at a mediation shall be consistent with 804 CMR 1.15.” Under 1.15(13) and (14), that is the duly authorized representative the complainant has authorized, before a probable cause disposition.804 CMR 1.06(1)(e)804 CMR 1.15(13)804 CMR 1.15(14)
• Requested through the portal. “[R]equests for mediation” are among the requests parties and representatives make through the MCAD Case Portal.804 CMR 1.13(1)