I’ve written on several occasions about the Office of Administrative Law. It should not be confused with the Office of Administrative Hearings. The OAH provides administrative law judges who conduct hearings for over 1500 state and local government agencies. In many cases, although the hearings are quasi-judicial, non-attorneys and out-of-state attorneys often appear on behalf of others. Non-attorneys may be laypeople, paid advocates and union representatives.
Earlier this year, the OAH asked the Attorney General’s office to issue a formal legal opinion on whether these non-attorneys may appear in a representational capacity. An obvious question is whether non-attorneys are practicing law when they represent parties in administrative proceedings. The opinion of the Court of Appeal in Benninghoff v. Superior Court, 136 Cal. App. 3d 61 (1996) concluded that a disbarred attorney “practiced law by representing parties in state administrative hearings”.
The Court explicitly assumed, but did not decide, that laypeople could do so. The Court distinguished the two circumstances because if found that under the State Bar Act a true layperson may practice law when “authorized pursuant to statute or court rule” while a defrocked lawyer may not practice law at all. Cal. Bus. & Prof. Code § 6126(a) & (b). So, does any statute or court rule authorize laypersons to represent others before the OAH? While disclaiming any formal position on the larger question, the OAH’s letter asserts:
The Administrative Procedure Act (APA) does not appear to authorize non-attorney representation or grant the right to a party to be represented by a non-attorney. . . . No California statute or regulation appears to confer the right on a party to be represented by a non-attorney.”
The Commissioner of Business Oversight actually has a rule that permits appearancesbefore the Commissioner by out-of-state attorneys:
In any proceeding before the Commissioner, any person may be represented by an attorney at law admitted to practice before the highest court of any state or territory of the United States, or the Court of Appeals or the District Court of the United States for the District of Columbia.
10 C.C.R. § 250.11.
The OAH Director, Linda A. Cabatic, should be familiar with the Attorney General’s legal opinion program as she spent 18 years in the Attorney General’s office.