Florida's Administrative Procedure Act (1) allows parties to be represented by qualified representatives, who are not members of The Florida Bar, in administrative proceedings. However, once the matter is appealed to a district court of appeal (DCA), a qualified representative may no longer be permitted to continue with his or her representation. In this article, I explain the dichotomy between administrative law and appellate law as it pertains to qualified representatives and opine as to whether such a dichotomy should continue to exist in light of access to justice issues currently affecting our state.
Why Qualified Representatives Can Participate in Administrative Proceedings
"The Administrative Procedure Act was designed to foster easy access to administrative determinations in contested proceedings." (2) The design includes allowing parties to have qualified representatives represent them in administrative proceedings. (3) A party seeking to be represented by a qualified representative must first "file a written request with the presiding officer[ (4)] as soon as practicable." (5) The presiding officer must then make a determination whether the person named by the party is capable of representing the party as a qualified representative. (6) The presiding officer's determination involves consideration of the person's 1) knowledge of jurisdiction; 2) knowledge of the Florida Rules of Civil Procedure relating to discovery in an administrative proceeding; 3) knowledge regarding the rules of evidence, including the concept of hearsay in an administrative proceeding; 4) knowledge regarding the factual and legal issues involved in the proceeding; and 5) knowledge of and compliance with the Standards of Conduct for Qualified Representatives that are found in F.A.C.R. 28-106.107. (7)
Based on the rule criteria that presiding officers use to determine whether someone should be a qualified representative, it would seem that qualified representatives are engaging in the unlicensed practice of law. Indeed, they are. However, the Florida Supreme Court found that qualified representatives in administrative proceedings can engage in the unlicensed practice of law without consequence. In The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980), the court found "the draftsmen of the 1974 revision of chapter 120 clearly intended to increase flexibility and informality in the administrative process by expanding public access to agency rationale and action, consistent always, however, with minimal administrative due process rights for those whose rights are affected by...