Revising rules on agency lawyers

Attorneys from outside Indiana should know this: The process for practicing before state administrative agencies, even temporarily, is changing and may impact your ability to practice law in this state.

The Indiana Supreme Court is reviewing the rules on how out-of-state attorneys receive temporary admission to practice law before state administrative agencies, changing a process that has already forced some agencies to scrap policies they’ve had in place for years.

Specifically, administrative law judges are not able to grant pro hac vice admissions as they have previously understood was allowed, in part by state statute alluding to this authority. But the process has now changed, and it may change again based on further review by the high court.

A handful of ALJs, both attorneys and non-attorneys, say the practice streamlined the process, and it is a practice that’s been in place for various agencies for as long as they remember. It is particularly common with Illinois and Kentucky attorneys who frequently represent clients in northern and southern Indiana, respectively.

Some agencies set specific policies for allowing temporary admission, requiring ALJs to consider the out-of-state lawyer’s professional background and make sure that he or she is licensed to practice there and doesn’t have disciplinary history in that state that might raise concerns.

“Many suggest that practicing before an agency is just ‘different’ from practicing before a court,” said Senior Administrative Law Judge Carol Comer with the Indiana Board of Tax Review. “But at its core, the practice of law is the practice of law and a lawyer must be properly licensed to do so. Therefore, while allowing ALJs to admit foreign attorneys for the limited purpose of appearing before an administrative agency does streamline the process, the ultimate regulation of the practice of law is firmly within the Supreme Court’s purview. After the directive, the board considers those rules invalid.”

The issue came up last year after finding a conflict between the Indiana Constitution and the state’s Admission and Discipline Rules, according to Appellate Clerk Kevin Smith. The former gives that attorney admission authority exclusively to the Supreme Court, while the rules didn’t clearly address how non-Hoosier lawyers practicing before executive agencies should be handled.

This has been an issue for many years and has come up in appellate cases before. In State Ex Rel. Indiana State Bar Association v. M. Drew Miller, No. 94S00-0001-MI-40, the court issued a divided opinion that dismissed an unauthorized practice of law case where a non-lawyer was allowed to represent a taxpayer before the tax review board as it existed in the late 1990s. The ISBA filed suit against him for UPL, but only two justices at the time voted to sanction that person based on the existing rules.

While rules and statutes have changed since then, some have inquired about guidance for those who might represent national or regional companies but be sent to Indiana to handle administrative matters for employers in this state.

Court records show that only about 3 percent of the 1,335 out-of-state attorneys admitted in Indiana – or 39 lawyers – are specifically practicing before administrative agencies, and 15 of those have been admitted recently by the Supreme Court since this issue surfaced late last year, Smith said. Specific details about how those remaining 24 were admitted, whether by trial court or ALJ, isn’t tracked by the appellate clerk’s office.

“We want to help out-of-state attorneys avoid unknowingly engaging in the unauthorized practice of law in Indiana, which was the impetus behind the letters,” Smith said, referring to his notices to various agencies in October and January.

In October, the clerk’s office notified the agencies that when a foreign attorney submits a petition for temporary admission, the ALJ should decline to rule on that petition due to Indiana Admission and Discipline Rule 3, Section 2, which states only one of the appellate courts has the authority. Instead, the letter directed ALJs to instruct the requesting attorney to file the petition with a county court where a judge is presiding over the matter. In mid-January, after the Supreme Court looked into the issue more specifically, Smith sent a secondary letter to those same agencies notifying them that out-of-state attorneys should file their petitions directly with the Indiana Supreme Court until this matter is reviewed.

Public comments are being accepted until May 1 by the state court’s Committee on Rules of Practice and Procedure. Three options have been presented: allow the agency itself to approve the out-of-state attorney’s temporary admission, give that power to the trial court where the agency is meeting, or make the Supreme Court the only decision-maker on that admission.

The committee will study the issue and establish a specific rule. It is interested in hearing what the legal community thinks. The court welcomes additional suggestions that address this process, and those comments or additional option suggestions can be sent via email to [email protected], or by mail to Lilia G. Judson, Executive Director; Indiana Supreme Court, Division of State Court Administration; 30 South Meridian St., Suite 500; Indianapolis, IN 46204.

Though not directly connected, this rule examination for out-of-state attorney admission fits into a larger discussion about how much authority ALJs have in Indiana. The Indiana State Bar Association has been studying this issue during the past year, and the Legislature has not only discussed but also implemented changes requiring certain ALJs to be lawyers in good standing in order to serve in those roles.

Indiana’s state agencies use ALJs on a case-by-case basis and no government entity tracks the use of these on a statewide basis. Each agency must be contacted, but not every agency keeps accurate tabs on how many ALJs are used. A spokesperson in the governor’s office said a study last year determined the state had more than 50 ALJs within various agencies at one point during 2008, but that examination wasn’t comprehensive and didn’t include all departments and committees.

Until this issue surfaced last year, ALJs for many state agencies had not been required to be lawyers but had been able to grant pro hac vice status to those coming before them on agency-specific legal matters. The Supreme Court review and eventual final rule will address one part of that, while the General Assembly studies the other aspect concerning whether ALJs need to be admitted as attorneys. Lawmakers for the first time last year required one department – the Department of Workforce Development – to stop using non-attorneys as ALJs. Indiana Code 22-3-18-4.2 took effect July 1, 2010, and could set the stage for other agencies, which often use non-lawyers in roles where they are fact finders, issue oaths and subpoenas, and rule on issues of proof and relevant evidence as well as procedural matters.

“All of those are uniquely within the training and expertise of lawyers,” said LaPorte employment lawyer Shaw Friedman, who testified before a legislative committee in support of the law change.

Whether that push will gain momentum remains unclear. The ISBA continues to study the issues involved, and the Supreme Court will ultimately decide whether ALJs should be able to grant temporary admission regardless of their lawyer status.•