Representation During Agency Action

• Jurisdiction: Maryland

VII. REPRESENTATION DURING AGENCY ACTION

A. Quasi-Judicial Proceedings—Appearance of Counsel

Petitioners or licensees who are natural persons may represent themselves without the assistance of counsel during an administrative hearing. Persons other than attorneys admitted to practice law in the State of Maryland may not ordinarily represent such individuals before an administrative agency.²⁶ A corporation must ordinarily be represented by an attorney licensed in this state during such contested administrative hearings. An attorney licensed in a state other than Maryland may be admitted to represent a client in such cases by application to a court of competent jurisdiction. An administrative agency may not permit an out-of-state attorney to appear before it in a contested case until it has received an order from the court.

There are a couple of contexts in which you may well find it difficult or impossible to render any meaningful representation to your client at all. Most if not all of the campuses of the University System of Maryland purport to bar attorneys from representing students in many kinds of hearings, including disciplinary hearings, except those students who face potential or actual criminal charges, and then the attorneys may accompany their clients only for the limited purpose of advising them about possible waivers of their Fifth Amendment rights. And government employees who are subject to collective bargaining agreements may well not be able to retain private counsel to represent them in grievances under the agreements. You need to check the agreement at the outset of your representation to see if you even have a role to play. The exclusion of privately-retained counsel frequently injures grievants because of the indolence, political agenda, incompetence, and/or limited resources of the designated union representatives and/or counsel. But it is legal, within the very broad boundaries of the duty of fair representation laid upon the unions. (Generally, that duty is not breached by negligence, only by malice, and the remedy is only after the fact and against the union.)

Being an attorney before an administrative agency in a quasi-judicial proceeding is very similar to representing a client before a court in a judicial proceeding. As in court proceedings, a practitioner who was previously employed by the government must observe and comply with Md. Rule 19-301.11 (M.R.P.C. 1.11).²⁷ Generally, the same kinds of rules against ex parte contact with the tribunal about the subject matter of the representation that apply in court will apply before agencies. Attorney fees may at times be awarded in administrative hearings, but only by virtue of statute or contract so providing.

B. Quasi-Judicial Functions—Rules of Evidence

As opposed to a traditional court trial, agency hearings may be exceedingly informal. The formal rules of evidence do not apply in the administrative setting, and hearsay evidence is admissible. In fact, in Maryland, it is permissible for an administrative law judge to base his or her decision entirely upon hearsay evidence,²⁸ and even to accept as true hearsay evidence which contradicts testimony presented live.²⁹ Evidence seized in...