'Yes' to Nonlawyers in Illinois Administrative Adjudications

Abstract:     
In 2009 in Grafner v. Department of Employment Security, an Illinois appellate court considered whether a nonlawyer hired from an employer services company could represent a former employer in an administrative proceeding before the Department of Employment Security in a case involving disputed employment compensation benefits allegedly owed a former employee. Relying, in part, on a Pennsylvania precedent, the majority found the nonlawyer could serve “as an adjunct,” especially where nothing was “intended to be intensely litigated;” minimal dollar amounts were at stake; “informal, speedy and low cost” proceedings were desired; there was a “long history of participation” by nonlawyer representatives; the proceedings were “largely routine” as there were no “complex and intricate legal problems;” and a relevant statute stated an individual or entity may be represented by a union or a duly authorized agent. A concurrer noted “the appropriate remedy” lies with the General Assembly or Supreme Court.

Important questions remain after Grafner involving what Professor Stephen Gillers calls “fear of the other.” First, who should write any new laws on nonlawyer representation: the legislature, the high court, or the agency? In many states, including Illinois, (exclusive or primary) regulatory authority over the practice of law is vested in the high court. As well, should any nonlawyer representation standards vary between administrative agencies? For example, only some agencies have a “long history” of nonlawyer representation, while other agencies (like human rights commissions) routinely hear “complex and intricate legal problems.” Finally, to what extent should opportunities for nonlawyer representation differ before adjudications commence? If insurance adjusters regularly settle prelawsuit claims, other nonlawyers in similar settings may be equally qualified, though they could still be held to lawyer conduct standards as were certain adjusters in Jones v. Allstate Insurance, 45 P.3d 1068 (Wash. 2002).

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