A Different Kind of Representative: Dba v. Puc Revisited - December 2007 - Workers' Compensation Law

• Publication year: 2007
• Pages: 53

36 Colo.Law. 53 Colorado Lawyer 2007.

2007, December, Pg. 53. A Different Kind of Representative: DBA v. PUC Revisited - December 2007 - Workers' Compensation Law

The Colorado Lawyer
December 2007
Vol. 36, No. 12 [Page 53]

Articles
Workers' Compensation Law
A Different Kind of Representative: DBA v. PUC Revisited
by Edwin L. Felter, Jr., Michael S. Williams

Workers' Compensation articles provide information about topics of interest to workers' compensation practitioners and updates on Colorado case law.

Article Editors:

Thomas L. Kanan, Jr., Denver, of McElroy, Deutsch, Mulvaney & Carpenter, LLP - (303) 293-8800, tkanan@mdmlawco.com; Ralph Ogden, Denver, of Wilcox & Ogden - (303) 399-5005, irishcorky@aol.com

About the Authors:

Edwin L. Felter, Jr. is Senior Administrative Law Judge Colorado Office of Administrative Courts (OAC). He is an Adjunct Professor of Law at the University of Denver Sturm College of Law. From 1983 to 1998, he was Director and Chief Administrative Law Judge of the OAC. In 2003, he was elected a Fellow of the American Bar Foundation, and in 2006, he was appointed to a three-year term on the ABA Standing Committee on Ethics and Professional Responsibility. Michael S Williams is an Administrative Law Judge, Colorado OAC. He has served as Director of the Division of Administrative Hearings and as Chief Judge. Williams is an adjunct faculty member at the University of Denver Sturm College of Law, where he teaches Administrative Law.

This article discusses the ethical dilemma created for administrative law judges by nonlawyer representation under CRS § 8-41-211(1)(c) in workers' compensation cases.

Workers' Compensation hearings are governed by CRS §§ 8-40-201 et seq. and Office of Administrative Courts (OAC) Procedural Rules for Workers' Compensation Hearings, Rules 1 through 28, 1 C.C.R. 104-1. Administrative law judges (ALJs) in the OAC conduct trial-type hearings on the merits. The hearings are conducted much like a district court trial, but in expedited form. The Colorado Rules of Evidence apply in toto.(fn1) The first level of appeal is to the Industrial Claim Appeals Office (ICAO).(fn2) ICAO decisions are appealed directly to the Colorado Court of Appeals.(fn3)

The parties to a hearing are the injured worker, the employer, and the employer's insurance carrier. Because most employers are insured, there are two real parties in interest, as a practical matter. The parties to a workers' compensation hearing (the injured worker and the insurance carrier) are represented by licensed Colorado attorneys in most cases. Injured workers representing themselves account for a small percentage of all litigated cases.

Appearances by "nonlawyer" representatives are infrequent, but pose a substantial dilemma for the ALJ. The ALJ must not allow the unauthorized practice of law as regulated exclusively by the Colorado Supreme Court or allow nonlawyer representatives to perform the tasks ordinarily performed by licensed Colorado attorneys. The reference to "other representative" in the notice of hearing provision contained in CRS § 8-43-211(1)(c) provides that a notice of hearing shall "inform the parties that they have a right to be represented by an attorney or other person of their choice at the hearing" (emphasis supplied). Nowhere else in the Workers' Compensation Act, or in the OAC Rules, is there a reference to representation by a nonlawyer.

This language raises several issues: Does it create a substantive right to be represented by a nonlawyer, within the traditional meaning of the attorney-client relationship? In the alternative, does it provide for some other form of representation that is not contemplated within the traditional notion that only the Supreme Court regulates the practice of law? Could the provision include representation by a disbarred lawyer?

This provision has the potential to create a serious dilemma for the ALJs who hear workers' compensation cases, unless...