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Fw: unauthorized practice of law without as license

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  • keystone law
    ... at ... Referees ... and ... non-attorneys, ... statute ... unemployment ... degree ... such ... It ... rel ... The ... participate ... unauthorized
    Message 1 of 1 , Jun 30, 2003
      >
      > Opinion No. 93-15
      >
      > March, 1994
      >
      > Topic: Unauthorized practice of law, non-attorneys representing employers
      at
      > Illinois Department of Employment Hearings
      >
      > Digest: 1) Employer representation by non-attorney representatives to
      > prepare and present evidence at termination hearings constitutes
      > unauthorized practice of law.
      >
      > 2) Participation in administrative hearings by attorneys where lay persons
      > represent another party does not constitute aiding in the unauthorized
      > practice of law.
      >
      > Ref.: Illinois Rules of Professional Conduct, Rule 5.5(b)
      >
      > ISBA Opinions on Professional Conduct, Nos. 88-8, 91-15, 90-35, 705
      >
      > 705 ILCS 205/1
      >
      > 205 ILCS 220/1
      >
      > 5 ILCS 315/5
      >
      > 115 ILCS 5/3 and 5/5(g)
      >
      > People ex rel Chicago Bar Association v. Barasch, 406 Ill. 253, 94 N.E.2d
      > 148 (1950)
      >
      > FACTS
      >
      > At hearings held by the Illinois Department of Employment Security,
      Referees
      > (hearing officers) conduct examinations, receive evidence and testimony,
      and
      > either grant or deny unemployment benefits to the terminated employee.
      >
      > Employers employ non-attorneys to prepare documentary evidence, examine
      > witnesses, and generally represent the employer at these hearings.
      >
      > QUESTIONS
      >
      > 1. Are the employers and their non-attorney representatives practicing law
      > without a license (engaged in the unauthorized practice of law)?
      >
      > 2. Are attorneys who participate in the hearing process with
      non-attorneys,
      > aiding in the unauthorized practice of law?
      >
      > OPINION
      >
      > Illinois law provides that no person shall practice law without being
      > authorized to do so. (Licensed) 705 ILCS 205/1. An exception in the
      statute
      > relates to the right of employees/employer to engage in collective
      > bargaining activities without using an attorney. The claim for
      unemployment
      > benefits which is the subject of the hearings complained of herein, do not
      > constitute collective bargaining activities and so do not come with the
      > statutory exception to practicing law without a license. 5 ILCS 315/5, 115
      > ILCS 5/3 and 5/5(g).
      >
      > It is unlawful for a corporation to practice law (705 ILCS 220/1) and
      > corporations must employ an attorney to represent them.
      >
      > The practice of law has been defined generally as giving of advice or
      > rendering any sort of service by any person, firm or corporation when the
      > giving of advice or rendering of such service requires the use of any
      degree
      > of legal knowledge or skill. It has been defined as appearing in court or
      > before tribunals representing one of the parties, counseling, advising
      such
      > parties and preparing evidence, documents and pleadings to be presented.
      It
      > has been defined as preparing documents the legal effect of which must be
      > carefully determined according to law. It has been defined as referral to
      > attorneys for service; advising or filling out of forms; negotiations with
      > third parties and, in short, engaging in any activities which require the
      > skill, knowledge, training and responsibility of an attorney. People ex
      rel
      > Chicago Bar Association v. Barasch, 406 Ill. 253, 94 N.E.2d 148 (1950).
      The
      > fact situation given herein, indicates that employers (maybe corporations)
      > are employing lay individuals to give legal advice, prepare evidence for
      > presentation to a tribunal, examine witnesses and documents and
      participate
      > at administrative hearings. Such use of non-attorneys, not allowed by any
      > statutory exception, constitutes the unauthorized practice of law.
      >
      > The second question asks whether attorneys participating in the process
      > (either as hearing officers or participants) are aiding in the
      unauthorized
      > practice of law prohibited by Rule 5.5(b). Involvement in a matter where
      > some other party violates the law or rules does not necessarily become an
      > activity in aid of the unauthorized practice of law.
      >
      > * * *
      >
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