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Supreme Court Of Ohio Has The Final Say On The Unauthorized Practice Of Law
As many of you may recall, in December 2004, the Supreme Court of Ohio issued a verdict stating that non-lawyers who assist and represent parties in state workers’ compensation claim proceedings are not considered to be engaged in the unauthorized practice of law. As you may also recall, this decision contained a qualifier limiting the holding. The qualifier mandated that non-lawyers must conform their activities to the guidelines adopted by the Ohio Industrial Commission in 2004. The Supreme Court then remanded the matter to the Board on the Unauthorized Practice of Law in order to reexamine non-lawyers’ activities in light of the Industrial Commission’s guidelines.After reviewing the guidelines, the Board issued a report in December 2005 stating that in four areas, non-lawyers were performing functions that are restricted to attorneys. The Board stated that engaging in the following activities amounted to the unauthorized practice of law: (1) making settlement offers and drafting settlement documents; (2) raising questions at hearings even without examining witnesses and claimant; (3) orally summarizing facts during hearings; and (4) advising employers regarding potential costs and benefits of appeals and other legal action in pending claims.
Of course, the Board did not have the final say in this matter. Following the Board’s decision, the third-party administrator involved in the action challenged the recommendation to the Supreme Court of Ohio. The Supreme Court completely reversed the Board’s decision on December 6, 2006, in essence stating the exact opposite. The Supreme Court held that non-lawyers may (1) make settlement offers and draft settlement documents; (2) communicate an employer’s areas of concern to the hearing officer, who may then ask questions of witnesses; (3) present a list of facts/summary prepared by the client/employer; and (4) advise employers on the economic costs and benefits of appeals and other legal actions for pending claims.
Currently this remains the status of non-lawyers and their standing before the Industrial Commission, but one should question the practicality of actually applying the Court’s decision to everyday practice. Non-lawyers and third-party administrators do offer valuable administrative services to employers, but the new ruling put forth by the Supreme Court seems to leave more questions then answers in the non-lawyer’s role in Ohio workers’ compensation.
Fortunately this ruling has no impact on clients of Ross, Brittain & Schonberg, as our clients are always, without exception, represented by attorneys in the hearing room and in any matters that could be considered the practice of law. Contact Meredith or anyone on the RBS workers’ comp team with any further questions or concerns.