Non-Attorney in Administrative Proceedings

To this day, the Washington State Office of the Attorney General still posts its opinion issued in January of 1961, concluding that anyone appearing in a representative capacity before a state administrative agency constitutes the unauthorized practice of law.  See AGO 61-62 No. 6.

Washington subsequently enacted the Administrative Procedure Act [“APA”] in 1988, to be consistent with other jurisdictions and to provide greater public access to administrative procedures.  The APA expressly permits that any party may participate in an adjudicative proceeding by a “duly authorized representative.”  Further, it allows a party to be “advised and represented” “by counsel, or if permitted by provision of law, other representative.”  Consider that DSHS’ hearing rules permits it to be represented by one of its employees, a contractor, or the office of the attorney general—thus neither party may be represented by an attorney in fact and the Administrative Law Judge may be the only attorney in the room, when they must be neutral in the proceedings.

While this may permit the public to have more access, it does not necessarily protect the public, particularly since the respective representatives do not have to comply with the Rules of Professional Conduct.  AGO 61-62 No. 6 identifies this concern as primary, to note that the public will not be protected from “unqualified and undisciplined persons over whom the judicial department of the government could exercise slight or no control.”  Nobody would be protected “from injury in the hands of the persons unskilled or unlearned in the law.”  The APA permitting non-attorney representatives on either side is in direct tension with AGO 61-62 No. 6 and GR 24 with RCW 2.48.180, the latter two mentioned next.

The Washington State Bar Association’s Practice of Law Board is tasked with receiving and reviewing complaints and may refer them to enforcement agencies where harm to the public interest is alleged.  See GR 24 for the complete definition of the practice of law.  The unlawful practice is a gross misdemeanor in Washington under RCW 2.48.180.  The Board’s form specifically asks if the individual complained of “[a]ppeared in court or in a formal administrative proceeding” with a box to check for either.  Statistics are not in hand just now to know whether the Board gives any leeway to non-attorney representatives in administrative proceedings or if it considers it equal with that of a non-attorney appearing in a judicial court matter. 

While access to justice and administrative proceedings is very important to the public, so is having competent representation that puts them first and can be accountable. 

RCW 34.05.001

RCW 34.05.428

WAC 388-02-0170