The newsletter of the ISBA’s Standing Committee on Government Lawyers
Unauthorized practice of law in administrative proceedings
Administrative agencies deciding contested cases need to be aware that the parties before them may have to be represented by an attorney. An agency's decision or order in a case improperly brought by a non-attorney could be challenged as void. Below we will discuss how the Illinois Pollution Control Board (Board) addressed the often-overlooked issue of the unauthorized practice of law in administrative proceedings.
The Board and its procedural rule on attorney representation. Besides promulgating Illinois' environmental regulations, the Board adjudicates cases under the Environmental Protection Act (415 ILCS 5/1 et seq.), such as enforcement actions, permit appeals, and variance requests. Board decisions are appealable directly to the Appellate Court. When the Board's completely new set of procedural rules took effect in January 2001, they codified a requirement dictated by Illinois case law and statute: a person must be a licensed attorney to appear before the Board on behalf of another in an adjudicatory proceeding. See 35 Ill. Adm. Code 101.400(a)(2). The Board's procedural rule on attorney representation came as no surprise. As discussed below, the Board several years earlier decided the unauthorized practice of law issue in an actual case before it.
Under the procedural rule, an environmental consultant cannot represent his or her client before the Board in an appeal of an Illinois Environmental Protection Agency ("Illinois EPA") decision on a permit application, proposed cleanup plan, or Underground Storage Tank Fund reimbursement request. A corporate officer or employee cannot represent the corporation asking the Board to reverse a local government's denial of landfill siting. A city engineer cannot represent the city seeking a variance or adjusted standard, i.e., relief from a Board environmental regulation. These are just a few examples.
Attorney representation, however, is not required in all Board proceedings. An individual can represent himself or herself before the Board in an adjudicatory proceeding, regardless of whether he or she is an attorney. See 35 Ill. Adm. Code 101.400(a)(1). The Board has also held that an unincorporated sole proprietorship need not be represented by an attorney. See Riverview FS v. Illinois EPA, PCB 97-226 (July 10, 1997). Additionally, non-attorneys may represent themselves and others in rulemaking proceedings, where the Board acts in its quasi-legislative capacity to develop environmental standards and regulations. See 35 Ill. Adm. Code 101.400(d), 102.100(b). The Board distinguishes its rulemakings from its adjudicatory proceedings, which are contested cases in which the Board decides the legal rights and responsibilities of specific parties appearing before the Board.
What about a pending case improperly initiated by a non-attorney? In 1997, the Board, in a case of first impression, ruled on a motion to dismiss an adjudicatory proceeding for lack of attorney representation. In that case, Petition of Recycle Technologies, Inc. for an Adjusted Standard Under 35 Ill. Adm. Code 720.131(c), AS 97-9 (July 10, 1997), Illinois EPA moved the Board before hearing to dismiss an adjusted standard petition because it was filed on behalf of the corporation by its owner, who was not an attorney. In ruling on the motion, the Board applied Illinois case law and statutes dealing with the prohibition on non-attorney representation. For example, the Attorney Act prohibits any person from practicing as an attorney or counselor at law in Illinois without a license (see 705 ILCS 205/1), and the Corporation Practice of Law Prohibition Act prohibits corporations from practicing law or appearing as an attorney at law in any court in Illinois or before any judicial body (see 705 ILCS 220/1).
It does not matter that an administrative agency is not a court. In Recycle Technologies, the Board relied on People ex rel. Chicago Bar Ass'n v. Goodman, 366 Ill. 346, 8 N.E.2d 941 (1937), in which the Illinois Supreme Court found a non-attorney guilty of the unauthorized practice of law for representing others before the Industrial Commission. The court stated that "[i]t is immaterial whether the acts which constitute the practice of law are done in an office, before a court, or before an administrative body. The character of the act done, and not the place where it is committed, is the factor which is decisive of whether it constitutes the practice of law." Goodman, 366 Ill. at 357, 8 N.E.2d at 947. Accordingly, the Board held that the practice of law may include activities before an administrative agency such as the Board, which functions in its quasi-judicial capacity when deciding contested cases.
What is the "practice of law?" This was the crux of what the Board had to decide in Recycle Technologies. Generally, the courts have held that the practice of law is "the giving of advice or rendition of any sort of service...when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." People ex rel. Chicago Bar Ass'n v. Barasch, 406 Ill. 253, 256, 94 N.E.2d 148, 150 (1950) (quoting People ex rel. Illinois State Bar Ass'n v. Schafer, 404 Ill. 45, 50, 87 N.E.2d 773, 776 (1949)). In Recycle Technologies, the Board held that representing the corporation in the adjusted standard proceeding, a contested case, necessarily involves the practice of law. The Board discussed court decisions finding that the practice of law includes representing a corporation in pre-trial and trial proceedings. See, e.g., Housing Authority of Cook County v. Tonsul, 115 Ill. App. 3d 739, 742, 450 N.E.2d 1248, 1250 (1st Dist. 1983). The Board stated that any person representing the corporation would need to appear at a public hearing on behalf of the corporation and present argument and precedent to support a favorable decision on the adjusted standard request. The Board held that these activities require legal knowledge or skill and therefore constitute the practice of law.
Are there exceptions for non-attorneys? The Board found that no exceptions in the Attorney Act or the Corporation Practice of Law Prohibition Act were available under the facts of Recycle Technologies. For example, those statutes allow non-attorneys to represent corporations before small claims courts. See 705 ILCS 205/11, 220/5. In addition to allowing an individual lay person to appear pro se, the Attorney Act allows non-attorneys to represent others in proceedings before several boards and commissions to the extent that their respective rules allow: either panel of the Illinois Labor Relations Board under the Illinois Public Labor Relations Act; the Illinois Educational Labor Relations Board under the Illinois Educational Labor Relations Act; the State Civil Service Commission; the local Civil Service Commissions; and the University Civil Service Merit Board. See 705 ILCS 205/1, 11.
How should an agency handle a case improperly brought by a non-attorney? The Board in Recycle Technologies had to decide whether to dismiss the case on the ground that a non-attorney filed the adjusted standard petition on behalf of the corporation. Illinois courts generally have held that a proceeding improperly initiated by a non-attorney is void, even if all subsequent appearances are through an attorney. See, e.g., Leonard v. Walsh, 73 Ill. App. 2d 45, 47, 220 N.E.2d 57, 58 (4th Dist. 1966). However, there are exceptions--dismissal is a drastic remedy not required in all cases. See, e.g., Janiczek v. Dover Management Co., 134 Ill. App. 3d 543, 546, 481 N.E.2d 25, 27 (1st Dist. 1985) (under unique circumstances, dismissal would defeat the purposes of the prohibition on non-attorney representation).
In Recycle Technologies, the Board noted that its then-current procedural rule allowed non-attorneys to represent corporations in adjusted standard proceedings and that Illinois EPA had never before objected to that procedural rule. The Board also found that dismissal was not necessary to serve the purposes of the prohibition on non-attorney representation: "to protect litigants against the mistakes of the ignorant and the schemes of the unscrupulous and to protect the court itself in the administration of its proceedings from those lacking the requisite skills." Recycle Technologies, AS 97-9, slip op. at 6 (quoting Janiczek, 134 Ill. App. 3d at 546, 481 N.E.2d at 27). Under these special circumstances, the Board denied Illinois EPA's motion to dismiss, and instead allowed time for the corporation to retain an attorney and for that attorney to file an appearance and an amended petition.
Can any attorney represent another person in a case? Except as described below, the Board's procedural rules require that an attorney representing another in an adjudicatory proceeding before the Board be licensed to practice law in Illinois. See 35 Ill. Adm. Code 101.400(a)(2). In other words, the attorney must be registered with the Attorney Registration and Disciplinary Commission as an active member of the Illinois bar. The Board conducts no credentials review of attorneys based on environmental or administrative law experience. Functioning as an environmental "court" for non-criminal pollution cases, the Board, consistent with Illinois Supreme Court Rule 707, entertains motions of out-of-state attorneys to appear before the Board pro hac vice in specific adjudicatory proceedings. See 35 Ill. Adm. Code 101.400(a)(3).