Non-Attorney Representation: Process & Authorizations

Sperry applied across the federal administrative system

• Merit Systems Protection Board. The Federal Circuit held that “[j]ust as the states cannot regulate practice before the PTO [the Patent and Trademark Office], they cannot regulate practice before the Merit Systems Protection Board. Allowing state control would plainly impede the conduct of federal proceedings even though the Board does not have procedures for admitting counsel to practice before it.” The representative was a licensed attorney; the preemption rests on the federal forum.Augustine v. Dep’t of Veterans Affairs, 429 F.3d 1334 (Fed. Cir. 2005)
• A layperson’s federal practice. A California court held that state law reached the representative’s practice before state administrative agencies but that “the court erred by assuming jurisdiction over Benninghoff’s federal practice,” because “state law cannot restrict the right of federal courts and agencies to control who practices before them.”Benninghoff v. Superior Court, 136 Cal. App. 4th 61 (2006)

Sperry protects paid non-attorney representation

The Supreme Court recorded that Sperry “charges fees solely for his work of preparing and prosecuting patent applications and patent assignments,” and ordered the injunction against that work vacated. The conduct the Court protected was paid non-attorney practice before a federal agency.

Federal statutes recognizing paid non-attorney representatives

• Equal Access to Justice Act — recoverable fees in an agency adversary adjudication include “reasonable attorney or agent fees,” and a higher rate may be set for “the limited availability of qualified attorneys or agents for the proceedings involved.”5 U.S.C. § 504(b)(1)(A)
• Internal Revenue Code — fees for an individual “(whether or not an attorney) who is authorized to practice before the Tax Court or before the Internal Revenue Service shall be treated as fees for the services of an attorney.”26 U.S.C. § 7430(c)(3)(A)
• Social Security Act — the Commissioner shall extend the fee-withholding and assessment procedures “to agents and other persons, other than attorneys, who represent claimants.”42 U.S.C. § 406(e)(1)

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, 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)

Pre-counseling settlements

“Each agency shall make reasonable efforts to voluntarily settle complaints of discrimination as early as possible in, and throughout, the administrative processing of complaints, including the pre-complaint counseling stage.”

Who may file

• Equal Employment Opportunity Commission. A charge “may be made by or on behalf of any person claiming to be aggrieved,” and “[a] charge on behalf of a person claiming to be aggrieved may be made by any person, agency, or organization.” Commission staff verify the worker’s authorization during the investigation.29 C.F.R. § 1601.7(a)
• Occupational Safety and Health Administration, section 11(c) retaliation. “A complaint of section 11(c) discrimination may be filed by the employee himself, or by a representative authorized to do so on his behalf,” and “[n]o particular form of complaint is required.” The filing period is 30 days from the violation, and is not tolled by a filing with another agency.29 C.F.R. § 1977.15(a), (b), (d)
• Department of Labor, Wage and Hour Division. The Division’s intake takes a complaint from “a representative of a current or former employee,” and takes from that representative the account it would take from the worker.Wage and Hour Division, Third-Party Complaints

What the representative carries

• Point of contact. Once the worker names a representative, the agency coordinates affairs with the representative. The Department of Labor makes the designee “the point of contact,” and the Equal Employment Opportunity Commission “communicates with the charging party, respondent, and their representatives.”OSHA, What to ExpectEEOC, Quality Practices for Investigations
• Correspondence and deadlines. Agency mail, requests, and deadlines come to the representative.OSHA CPL 02-03-011EEOC, What You Can Expect After You File a Charge
• The worker’s interview. The agency investigator interviews the complainant, to state “each specific harm” suffered, when it occurred, and the practice alleged to be unlawful. Thurgood does not speak on the worker’s behalf, but will engage as allowed by the investigator.29 C.F.R. § 1601.15(b)
• Conferences are investigative, not adversarial. Where the agency calls the parties together, it is to develop the record rather than to try the case. The Commission “may require a fact-finding conference,” which it calls “primarily an investigative forum” for defining the issues, narrowing what is disputed, and testing whether the matter can be settled; the investigator “is obligated to collect evidence regardless of the parties’ positions.”29 C.F.R. § 1601.15(c)EEOC, Formal Complaint & Investigation Process
• Position statements and rebuttal. The employer answers the claim in writing, and the worker answers back through the representative. “You or your representative” asks the investigator for the employer’s position statement, and a response is due “within 30 days”; each side gets “an opportunity to rebut the opposing party’s position.”EEOC, Q&A on Position Statement ProceduresOSHA, What to Expect

What each agency offers

• Equal Employment Opportunity Commission. “Mediation is a form of Alternative Dispute Resolution (ADR) that is offered by the U.S. Equal Employment Opportunity Commission (EEOC) as an alternative to the traditional investigative and litigation processes.” “Mediation will usually take place early in the process prior to an investigation of the charge.” “While it is not necessary to have an attorney or other representative in order to participate in EEOC’s mediation program, either party may choose to do so.”EEOC, Q&A About Mediation
• Occupational Safety and Health Administration and Wage and Hour Division. One notice sets the Department of Labor’s terms for both, and for Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) complaints alike: “If requested by the employee, the DOL Solicitor’s Office would represent the employee in mediation. The employee would be free to choose other representation (including representation by non-lawyers) at the employee’s expense, or to proceed individually.” Screening comes after investigation and after administrative settlement efforts have failed, and the notice was issued for comment as a pilot.62 Fed. Reg. 6690 (Feb. 12, 1997)