Can Non-Attorneys Represent Credit Unions in Unemployment Compensation Hearings?

The following is an article reprinted with permission from The WWR Letter.

Can Non-Attorneys Represent Credit Unions in Unemployment Compensation Hearings?

By: Mike Dougherty, Esquire

There is a power struggle going on between the Pennsylvania Courts and the Pennsylvania Legislature over who has the authority to regulate the practice of law at unemployment compensation hearings. This power struggle will have a direct impact on all Pennsylvania credit unions, and all Pennsylvania corporations for that matter. The struggle centers on whether a Pennsylvania corporation can represent itself at an unemployment compensation hearing or whether they must use counsel. 

For many years before February 3, 2005, Pennsylvania corporations from the smallest to the largest had the choice to represent themselves at unemployment hearings or decide to hire an attorney. In most cases, the corporations would send a person from human resources or an office manager to represent them at these hearings. On February 3, 2005, all of this temporarily changed. On that date, the Pennsylvania Commonwealth Court decided the case of Harkness v. Unemployment Compensation Board of Review, 867 A.2d 728 (Pa.Cmwlth. 2005). In Harkness, the Court ruled that Pennsylvania corporations must be represented by counsel at unemployment compensation hearings. 

On June 15, 2005, in a lightning quick response to the court’s ruling in Harkness, the Pennsylvania legislature passed Section 214 to the Unemployment Compensation law, which permitted corporations to represent themselves at unemployment hearings. In doing this, the Pennsylvania legislature turned the clock back to before the Harkness decision.

Not to be outdone, a group of lawyers who made a practice of representing corporations in unemployment hearings filed a lawsuit challenging the constitutionality of Section 214 of the Unemployment Compensation Law. Piunti v. Commonwealth of PA, Department of Labor and Industry, 2006 Pa.Cmwlth LEXIS 320. The lawyers specifically contended that Section 214 violated Article V, Section 10 of the Pennsylvania Constitution by infringing on the Supreme Court’s exclusive authority to regulate the practice of law in the Commonwealth. 

On June 13, 2006, the Commonwealth Court, which is hearing the Piunti case on the basis of original jurisdiction, made an initial ruling that does not bode well for the right of Pennsylvania corporations to represent themselves. The court found that the Supreme Court, not the legislature, has exclusive jurisdiction over who can practice law at unemployment hearings. This decision does not make Section 214 unconstitutional, but it does pave the way for that decision to be made later as the Piunti case progresses.

Taking a step back, what this means to Pennsylvania credit unions is that today you can represent yourself at unemployment hearings without counsel. However, the law is in a state of flux so you must stay informed as to the progress of these cases, for maybe as soon as tomorrow you will not be able to do so.

Michael J. Dougherty is the Managing Attorney of the Philadelphia office and works in the Legal Action Recovery department. He can be reached at (215) 599-1500 or mdougherty@weltman.com.