How Thurgood Represents Utah Employees

Agency representation is permitted

“Whether or not it constitutes the practice of law, the following activity by a nonlawyer, who is not otherwise claiming to be a lawyer or to be able to practice law, is permitted: … (8) Acting as a representative before administrative tribunals or agencies as authorized by tribunal or agency rule or practice.”

Utah’s statute adopts that rule: “‘Practice of law’ means the same as that term is defined in Utah Code of Judicial Administration, Rule 14-802,” and its prohibition applies “[u]nless otherwise provided by law or court rule.”

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

• Authorized by agency rule and practice. The Antidiscrimination Act lets a worker’s “attorney or agent” file the claim, and UALD communicates with a representative once it has the worker’s written Notice of Representation. That is the agency authorization Rule 4-802(d)(8) requires, and Thurgood acts only on it.Rule 4-802(d)(8)Utah Code § 34A-5-107(1)(a)UALD, Employment Discrimination
• Never held out as attorneys. The statute reaches a person who “assume[s] to act or hold[s] oneself out to the public as a person qualified to practice law within this state” without a license, and the rule’s exception covers only a nonlawyer “who is not otherwise claiming to be a lawyer or to be able to practice law.” Thurgood’s retainer states that Thurgood is not a law firm and its representatives are not attorneys, and Thurgood does not describe itself otherwise.Utah Code § 78A-9-103(2)(a)Rule 4-802(d)
• No court practice, and no hearing where the rules require a lawyer. Before the Labor Commission’s Adjudication Division, “[r]epresentatives who are not duly admitted and licensed to practice law in Utah shall not be allowed to appear on behalf of a party.” Thurgood does not appear there or in court; those matters are placed with a licensed attorney.Utah Admin. Code R602-1-3(1)

Utah law on paying a representative

UALD’s statute and rules say nothing about how a representative is paid. Utah law elsewhere permits paid non-attorney representation before agencies, and in employment matters regulates the fee rather than forbidding it.

• Utah Supreme Court — a nonlawyer may act “as a representative before administrative tribunals or agencies as authorized by tribunal or agency rule or practice.” The rule places no condition on payment.Rule 4-802(d)(8)
• Department of Workforce Services — in unemployment cases, “[a]n authorized representative who is not an attorney may not charge or receive a fee for representing a claimant in an action before the Department without prior approval by an ALJ or the Board.” The judge sets it: “the fee may be approved as requested, adjusted to a lower amount, or disallowed in its entirety,” measured in part by “[t]he prevailing fee in the community,” meaning “the rate charged by peers for the same type of service.”Utah Admin. Code R994-508-201(1)R994-508-202(1)R994-508-203(4)

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. The worker’s “attorney or agent may, make, sign, and file with the division a request for agency action,” which “shall be verified under oath or affirmation.” UALD then deals with Thurgood once it has the worker’s written Notice of Representation.Utah Code § 34A-5-107(1)(a), (b)UALD, Employment Discrimination
• Deadline. “A request for agency action made under this section shall be filed within 180 days after the alleged discriminatory or prohibited employment practice occurs.”Utah Code § 34A-5-107(1)(c)

What the representative carries

• Point of contact. “UALD must have written Notice of Representation before it will communicate with your representative.”UALD, Employment Discrimination
• The investigation. “The investigator shall make a prompt impartial investigation of all allegations made in the request for agency action,” and the division “shall conduct every investigation in fairness to all parties and agencies involved.”Utah Code § 34A-5-107(3)(b)(ii), (c)
• The determination. When the investigation ends, the director “may issue a determination and order” — dismissing the claim where the evidence is insufficient, or directing the employer to “cease any discriminatory or prohibited employment practice” and to “provide relief to the aggrieved party” where it supports the claim.Utah Code § 34A-5-107(4)(b), (5)(b)

Mediation at UALD

• Mediation comes first. “Before an investigation begins into allegations of discriminatory or prohibited employment practice, the division shall promptly assign a mediator to offer mediation services between the parties by conference.” “If mediation services are refused or no settlement is reached, the division shall promptly assign an investigator.”Utah Code § 34A-5-107(3)(a), (b)(i)
• Settlement throughout. “Conciliation between the parties is to be urged and facilitated at all stages of the adjudicative process.”Utah Code § 34A-5-107(10)
• Representation in mediation is permitted. The Utah Supreme Court’s rule permits a nonlawyer “(7) Representing a party in any mediation proceeding.”Rule 4-802(d)(7)