How Thurgood Represents Washington Employees

The right to choose a representative

• Participation. “A party to an adjudicative proceeding may participate personally or, if the party is a corporation or other artificial person, by a duly authorized representative.”RCW 34.05.428(1)
• Representation at the party’s own expense. “Whether or not participating in person, any party may be advised and represented at the party’s own expense by counsel or, if permitted by provision of law, other representative.”RCW 34.05.428(2)
• Scope. The Act’s rule applies to adjudicative proceedings, such as a hearing on an appeal. L&I and ESD investigate a worker’s complaint under their own rules, set out in the next section.

Agency-authorized lay representation is permitted

“Whether or not they constitute the practice of law, the following are permitted: … (3) Acting as a lay representative authorized by administrative agencies or tribunals.”

Why Thurgood’s representation before L&I and ESD is not the unauthorized practice of law

• Authorized by each agency. L&I accepts a complaint filed “by the employee’s authorized representative,” and ESD lets a representative speak for the worker once its Authorized Representative form is completed. That is the agency authorization GR 24(b)(3) requires, and Thurgood acts only on it.GR 24(b)(3)WAC 296-360-030(1)ESD, Unlawful acts complaints
• Never held out as attorneys. The statute also reaches a nonlawyer who “holds himself or herself out as entitled 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.RCW 2.48.180(2)(a)
• No court practice. Thurgood does not file cases in court. A matter that must go to court is placed with a licensed attorney.

Washington law on paying a representative

L&I’s and ESD’s complaint rules say nothing about how a representative is paid. Washington law elsewhere provides that a party pays its own representative, attorney or not.

• Administrative Procedure Act — a party may be represented “at the party’s own expense by counsel or, if permitted by provision of law, other representative.”RCW 34.05.428(2)
• Washington Supreme Court — the practice of law includes advice given “for fees or other consideration,” and agency-authorized lay representation is permitted “[w]hether or not” it is the practice of law. The exception carries no condition that the representative be unpaid.GR 24(a)(1), (b)(3)
• Department of Children, Youth, and Families — “A representative may be either an attorney or a lay representative including, but not limited to, a friend, relative, community advocate, or paralegal,” and “[i]f the party chooses to be represented or advised by an attorney or lay representative, DCYF will not pay for that attorney’s or lay representative’s services, as provided under RCW 34.05.428.”WAC 110-03-0100(1)(a), (5)
• Health Care Authority — an appellant may “choose to have someone represent them including, but not limited to, a friend, relative, community advocate, attorney or paralegal,” and neither the agency nor the Office of Administrative Hearings pays: “HCA and HCA’s authorized agents do not pay for an appellant’s representation.”WAC 182-526-0155(1), (7)(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

• L&I, safety retaliation. “A complaint alleging retaliation may be filed by the employee, or by the employee’s authorized representative,” and “[n]o particular form of complaint is required.” The worker has 90 days: an employee “may, within 90 days after such violation occurs, file a complaint with the director.”WAC 296-360-030(1), (2)RCW 49.17.160(2)
• ESD, paid family and medical leave unlawful acts. “A complaint must be submitted on a form provided by the department, or in another format approved by the department,” and “must be filed within three years of the date the violation is alleged to have occurred.” Thurgood helps the worker prepare it and speaks for the worker once ESD’s Authorized Representative form is on file.WAC 192-570-030(1), (3)ESD, Unlawful acts complaints

What the representative carries

• L&I investigation. The department “must determine if a violation of RCW 49.17.160 has occurred, or whether there was insufficient evidence to determine if a violation occurred,” and notify the complainant and the employer “within 90 days of receipt of the complaint,” unless it extends that period with advance written notice.WAC 296-360-040(1), (2)
• ESD investigation. “Upon receipt of a complaint, the department will investigate allegations of an employer committing unlawful acts,” and “may request additional information from other parties including, but not limited to, employees, employers, and potential witnesses.”WAC 192-570-040(1), (2)
• Point of contact. With the authorization on file, the investigator speaks with Thurgood on the worker’s behalf. ESD requires its Authorized Representative form “before an investigator can speak to an any other person on your behalf.”ESD, Unlawful acts complaints

Resolution by agreement

• L&I. The director issues a determination within 90 days “unless the matter is otherwise resolved.”RCW 49.17.160(3)
• ESD. “If a resolution is reached between the employee and the employer during the course of the investigation, a statement of resolution must be signed by the employee and the employer and provided to the department.”WAC 192-570-030(5)