Attorney General’s office issues opinion regarding appearance of attorneys licensed in other states in Illinois administrative proceedings

[Editors' note: In the August 2002 issue of the Committee on Government Lawyer newsletter, we published an article addressing the appearance of non-attorneys in hearings before State administrative bodies. (See, "Unauthorized practice of law in administrative hearings" by Claire Manning and Richard R. McGill, Jr.) Subsequently, Attorney General Jim Ryan's office issued an informal opinion regarding the appearance of attorneys licensed in other states in Illinois administrative proceedings. Because of the potential ramifications of the conclusions reached by Attorney General Ryan's office, the complete text of informal opinion No. I-02-049, issued October 8, 2002, to Nathan Maddox of the Office of the Secretary of State is set out below.]

 

Dear Mr. Maddox:

I have your letter wherein you inquire whether, pursuant to a duly promulgated administrative regulation, administrative hearing officers appointed by the Secretary of State may permit attorneys licensed in States other than Illinois to appear and represent clients in matters pending before them. Because of the nature of your inquiry, I do not believe that the issuance of an official opinion is necessary. I will, however, comment informally upon the question you have raised.

You have stated that there is currently pending in your office a matter involving litigants from California, Wisconsin and Illinois. Attorneys from California and Wisconsin have sought leave to appear before a hearing officer pursuant to 92 Ill. Adm. Code 1001.30 (Jan. 1, 2002), which provides, in part:

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1) Attorneys admitted to practice in states other than the State of Illinois may appear and be heard by special leave of the Hearing Officer appointed to conduct the hearing, upon the attorney's verbal representations or written documentation as to the attorney's admittance.

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However, questions have been raised regarding the validity of the rule.

The question of whether an administrative agency may authorize a person who is not licensed as an attorney in Illinois to practice law before it was addressed by the Illinois Supreme Court in People ex rel. The Chicago Bar Ass'n v. Goodman (1937), 366 Ill. 346, 352, cert. denied, 302 U.S. 728, 58 S. Ct. 49 (1937). The defendant in that case engaged in a rather extensive business of assisting injured workers with the adjustment of claims before the Illinois Industrial Commission. The court stated:

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* * * The respondent urges that because the legislative act relating to the Industrial Commission grants to that body the right to promulgate rules governing the procedure before it, and the commission has adopted a rule permitting a party to appear before it by his attorney or 'agent,' that he, as agent of the claimant, may lawfully appear before the commission as the representative of the client and try his claim there. Even though the Industrial Commission is merely an administrative body, yet, if what the respondent did for a fee, in the presentation of and hearing of a petitioner's claim before that body, amounted to the practice of law, a rule of the commission purporting to grant him that privilege is of no avail to him. The General Assembly has no authority to grant a layman the right to practice law. (Citation). It follows that any rule adopted by the commission, purporting to bestow such privilege upon one not a duly licensed attorney at law, is void. Nor can the General Assembly lawfully declare not to be the practice of law, those activities the performance of which the judicial department may determine is the practice of law.

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Our appellate court acknowledged the general rule in Perto v. Board of Review(1995), 274 Ill. App. 3d 485, 493, appeal denied, 164 Ill. 2d 581 (1995), while holding that a person who responded to factual questions on behalf of an employer in a proceeding before the Department of Employment Security was not engaged in the practice of law. The Illinois Supreme Court reiterated the rule that it has exclusive power to determine who shall be permitted to practice law in Illinois in Lozoff v. Shore Heights, Ltd. (1977), 66 Ill. 2d 398, 401. In that case, a Wisconsin attorney arranged a real estate transaction among parties who were residents of Illinois. The court held that the attorney had engaged in the unauthorized practice of law in Illinois and was not entitled to attorney's fees.

It has been suggested that Supreme Court Rule 707 (145 Ill. 2d R. 707) may authorize the Secretary of State (through his hearing officers) to permit the appearance in particular administrative matters of attorneys who are licensed in other States. Rule 707 provides:

"Anything in these rules to the contrary notwithstanding, an attorney and counselor-at-law from any other jurisdiction in the United States, or foreign country, may in the discretion of any court of this State be permitted to participate before the court in the trial or argument of any particular cause in which, for the time being, he or she is employed."

 

This is a rule by which the supreme court specifically empowers Illinois courtsto permit the participation of attorneys who are licensed in other jurisdictions. The rule does not refer to proceedings held before administrative agencies, or conducted by officers of the executive branch of government. In no reported case has the rule been applied to administrative hearing officers, who look to the legislature, not to the court, for authority to act. To the contrary, the supreme court has held in People ex rel. The Chicago Bar Ass'n v. Goodman and Lozoff v. Shore Heights, Ltd. that the General Assembly has no authority to regulate the practice of law.

In this regard, I note that section 12 of the Attorney Act (705 ILCS 201/12 (West 2000)) provides:

"When any counselor or attorney at law, residing in any other state or territory, may desire to practice law in this state, such counselor or attorney shall be allowed to practice in the several courts in this state upon the same terms and in the same manner that counselors and attorneys at law residing in this state now are or hereafter may be admitted to practice law in such other state or territory."

 

The provision is essentially a reciprocity rule applying only to practice in the courts. In any event, the legislative provision is merely in aid of and does not detract from the power of the supreme court to control the practice of law. (Lozoff v. Shore Heights, Ltd. (1977), 66 Ill. 2d 398, 402; Perto v. Board of Review (1995), 274 Ill. App. 3d 485, 493, appeal denied, 164 Ill. 2d 581 (1995).) The statute does not authorize administrative agencies to permitattorneys licensed in other States to practice law in Illinois.
 

While not controlling, reported cases from other jurisdictions that have addressed this issue are instructive. For example, in In re Ferrey (R.I. 2001), 774 A.2d 62, the Rhode Island Supreme Court entertained the motion of a Massachusetts attorney for admission pro hac vice to represent a client in an administrative proceeding before the Rhode Island Energy Facility Siting Board. Holding that the court had exclusive and ultimate authority to determine who may be permitted to practice law in the State, the court granted the petition prospectively. The court refused to grant the petition nunc pro tunc, however, because the administrative board clearly did not have the authority to permit the representation, and the court did not wish to affix an ex post facto imprimatur of approval on what might be construed as the unauthorized practice of law. Thus, the court held that the attorney's acceptance of fees for past representation would violate Rhode Island statutes prohibiting the receipt of fees for unauthorized practice. Following In re Ferrey, the court summarily granted pro hac vice petitions in subsequent cases. In re Soltis (R.I. 2001), 786 A.2d 1074.

California law similarly prohibits an attorney not admitted to practice by the California courts from collecting fees for representing a petitioner before an administrative body, even though the representation was approved by the administrative hearing officer. In Z.A. v. San Bruno Park School District (9^thCir. 1999), 165 F.3d 1273, the plaintiff had prevailed in an administrative proceeding conducted by the California Special Education Office pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. ' 1400 et seq.) and related State statutes. The IDEA specifically provides that parents may be assisted at hearings by an attorney or other individual with special knowledge and training in special education issues (20 U.S.C. ' 1414(d)(1)). The plaintiff's attorney was admitted to practice in the U.S. District Court for the Northern District of California, but was not a member of the California bar. It was held that although he could practice before the Federal court, he was in the same position as a lay person before the State administrative commission and could not receive fees for his appearance there.

The Montana Supreme Court, while denying the motion of an attorney licensed in another State for admission for purposes of participating in an administrative proceeding, held that the motion, if made by a Montana attorney in accordance with the court's rule for admission of non-resident counsel, would be granted. (Application of American Smelting and Refining Co. (1973), 164 Mont. 139, 520 P.2d 103.) The Montana rule for admission for a particular case requires that out-of-State counsel be associated with a lawyer admitted to practice in the State. The ruling requires that the motion be made to the court, not to the agency, for permission to practice before an administrative agency.

In contrast to these cases, New Hampshire does not require leave of court for attorneys licensed in other States to appear in particular matters before either its courts or administrative bodies. In Amy M. v. Timberlane Regional School District, No. CIV. 99-269-B (D.N.H. August 11, 2000), the respondent school district objected to an award of attorney fees to a prevailing petitioner following a due process hearing held pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. ' 1400 et seq.) because the attorney representing the petitioner was not licensed in New Hampshire. Based upon the specific wording of the New Hampshire statute (N.H. Rev. Stat. Ann. ' 311:7 (1995)), it was held that in that State a person may appear in court on another's behalf without being admitted to practice in New Hampshire as long as the person is of good character and does not commonly practice law in the State.

In Illinois, as in Rhode Island, California and Montana, the supreme court has been granted the exclusive authority to determine who may, or may not, practice law in the State. The court has not, by rule or otherwise, delegated to the Secretary of State or to hearing officers whom he may appoint the authority to determine who may practice law in administrative proceedings before those hearing officers. It appears, therefore, that a hearing officer cannot permit an attorney who is not licensed in Illinois to appear and represent a client pursuant to an administrative rule. Consequently, attorneys licensed in other States who wish to represent clients in administrative proceedings before hearing officers of the Secretary of State must petition an appropriate court of this State for permission to do so.

Sincerely,

Michael J. Luke

Senior Assistant Attorney General

Chief, Opinions Bureau