State Bar panel told lawyers should not be required in hearings
By Kate White, Courts Reporter, Charleston Gazette-Mail
An overwhelming majority of speakers Thursday sent a clear message to the West Virginia State Bar’s Unlawful Practice of Law Committee that non-lawyers should continue to appear as advocates in state administrative proceedings.
Both lawyers and union representatives spoke during a hearing before the committee, which had solicited information about the role of non-lawyers in administrative proceedings.
Many wondered why the topic was being called into question in the first place.
Mark Hayes, a Charleston attorney who also serves as committee chairman, offered only that the process would be used to investigate the issue. The committee makes recommendations to the state Supreme Court.
The court has made its stance clear, attorneys on both sides of the issue told the committee. Taylor George, a Charleston attorney, said that justices have clearly defined the practice of law as, “any person whose purpose is to speak in front of a tribunal on behalf of another person.”
George was one of only about two people who spoke against the current practice of allowing non-lawyers to appear during administrative proceedings. He said it was a matter of protecting the public.
But attorney Pat Maroney, general counsel for the state AFL-CIO, said, reading from a court ruling, that the proceedings must “remain relatively simple, because in many instances grievants will not have a lawyer.
”More than 20 other speakers agreed with Maroney that the process is fine how it is. Those speakers included attorney Chuck Donnelly, who said it’s not only not feasible, but perhaps unconstitutional to require an attorney at the proceedings.
“These types of issues are best left to union representatives that know the workplace,” he said. Donnelly, of Charleston, who represents the United Mine Workers, also questioned the need for Thursday’s hearing, adding “if it ain’t broke don’t fix it,” and telling committee members, “if you’re truly concerned about unfair practice, go after LegalZoom,” referring to the company that helps people file legal documents.
About 100 people attended the hearing held in the Kanawha County Courthouse.
Charleston attorney Jeff Blaydes said he believes more people would have attended if they had been made aware of it.
The State Bar sent an email about the hearing to all attorneys in the state and posted a notice on its website. Hayes previously told the Gazette-Mail he thinks administrative law judges notified non-lawyers about the hearing.
Blaydes is an attorney for the West Virginia Chapter of the American Federation of Teachers. He described the representation he’s witnessed from non-attorney advocates as excellent.
Kara Cunningham Williams, an attorney who serves on the committee, asked several speakers what type of training or oversight non-lawyers are given.
Gordon Simmons with UE Local 170 of the West Virginia Public Workers Union, said he has taken training courses, while other speakers said advocates from their organizations are supervised by attorneys and/or extremely knowledgeable in their fields.
Andy Katz, a lawyer who serves as general counsel for the West Virginia Education Association, said that he provides legal assistance to the organization’s non-lawyer representatives. Katz explained that an employee has the right to undergo a grievance process anytime they face discipline. “We would have to hire a lawyer every time a principal wants to talk to a teacher,” Katz said.
Most disputes that would be addressed by various boards, which range from someone being denied Medicaid benefits to a state employee being docked 15 minutes of pay, can easily be resolved, many speakers said.
When a lawyer is brought into the picture, “the toughness from both sides increases,” Katz said, when the goal is to maintain workplace decorum.
Everyone seemed to agree that when a grievance is overly complicated or appealed to circuit court, an attorney is hired. And most all of the speakers said that state employees simply cannot afford to hire a lawyer when they want to file a grievance.
Bruce Perrone, an attorney with Legal Aid of West Virginia, said that the nonprofit organization offers clients a number of services from non-lawyer advocates. “We are not untrained, unqualified people,” Perrone said, and asked, “Please do not curtail the work we and our non-attorney advocates are doing.”
Other members of the committee include Mercer Circuit Judge Omar Aboulhosn, who did not attend the hearing, and attorneys Christopher Luttrell, of Martinsburg; Colleen McCulloch, of Beckley; Robert Kuenzel, of Chapmanville; and Robert Tebay, of Parkersburg.