Defrocked Attorneys are Less Than Lay Representatives

Saturday, February 25, 2006 | 0

Recently, the Fourth District of the California Court of Appeals indicated that laypeople are authorized to represent parties before state administrative agencies, such as the Workers' Compensation Appeals Board (WCAB). However, the court decided that a "defrocked" attorney (one who is disbarred, suspended, inactive, or has resigned with charges pending) may not re-characterize himself as a layperson to engage in such representation.

In Benninghoff v. Superior Court of Orange County, Charles Benninghoff resigned from the California State Bar with disciplinary charges pending, and began representing parties in both state and federal agency proceedings. As a condition of his resignation, Benninghoff was not entitled to practice law or hold himself out or advertise himself as eligible to practice law. Benninghoff claimed that, because laypeople were allowed to do the same, he was not actually practicing law by representing parties in administrative proceedings, and, therefore, was not violating any laws.

The court noted that whether or not an individual is practicing law depends not on the atmosphere, but on the character of the act. Therefore, if an individual is acting as lawyer by applying legal knowledge and technique, then that individual is engaging in the practice of law. Because Benninghoff "analyzed agency disciplinary guidelines, advised clients how to defend against disciplinary charges, responded to discovery requests, prepared hearing books and declarations, and examined witnesses at hearings" after he resigned from the State Bar, he was practicing law without authorization. The court distinguished between laypeople and defrocked lawyers, noting that, while laypeople can practice law when authorized by statute, defrocked lawyers are prohibited, without exception, from practicing law under the State Bar Act.

Citing public policy reasons, the court concluded that a defrocked lawyer, such as Benninghoff, is forbidden from "masquerading" as a layperson:

"As our Supreme Court noted shortly after the State Bar Act passed, '[a]ttorneys and counselors at law... have for centuries been required to undergo certain courses of preparation and to assume certain solemn obligations... not only with respect to their relation to the courts, but also with regard to their relation to the public at large.' [Citation omitted]. The public interest must 'be safeguarded against the ignorances or evil dispositions of those who may be masquerading beneath the cloak of the legal and supposedly learned and upright profession.' [Citation omitted]. The public interest is best served by preventing Benninghoff from masquerading as a lay representative."

Benninghoff did not represent any parties in a workers' compensation proceeding, but it should be noted that attorneys who have been disbarred or suspended or have resigned from the State Bar are not permitted to appear before the WCAB. California law does, however, allow a defrocked attorney to petition the WCAB for permission to appear. 8 Cal. Code. Regs. section 10779 (2006). The attorney is required to detail the reasons for the disbarment, suspension, or resignation and notify the State Bar. Presumably, the WCAB will then consider the offenses and determine whether or not the attorney is capable of effective representation.

Although representation is permitted, it is clear that laypersons appearing on behalf of a party in a WCAB proceeding may face difficulties in continuing representation if the legal issues become too complex. Where complex legal issues arise, a layperson could fail to adequately represent a party and might inadvertently step outside the permitted bounds of representation. According to the WCAB Policy and Procedural Manual, if a non-attorney representative appears before the WCAB on behalf of a law firm representing an applicant, that representative must disclose the fact that s/he is not licensed in the state of California, must identify her/his supervising attorney, must have the consent of both the supervising attorney and the applicant, and must demonstrate the authority to sign settlement documents. DWC/WCAB Policy and Procedural Manual, Section 1.120 (2003). This indicates that the WCAB wants to ensure that a non-attorney representative (such as a paralegal) is not holding him or herself out to either the Board or to the parties as a licensed attorney. While non-attorney representatives have the authority to enter into settlement agreements and act on the behalf of the parties as do attorneys, the WCAB makes a distinction between attorneys and other representatives.

Although administrative agency proceedings are not as formal as courtroom proceedings, similar principles apply. Public policy mandates that an attorney defrocked for moral turpitude or felonious conduct should not have the privilege of continuing practice on any level. Therefore, if an attorney is barred from representing parties in the court system, s/he is also barred from the administrative forum. While the administrative system does allow laypeople to represent themselves or someone else, an attorney deemed unfit to practice law by the State Bar is not afforded the same privilege.

A copy of the Benninghoff opinion can be downloaded here.

By WorkCompCentral Legal Editor, Stephanie Rudell. Stephanie can be reached at stephanie@workcompcentral.com.-------------------

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