Is it unauthorized practice for a nonlawyer to represent an employer at an Illinois unemployment-benefits hearing, and do lawyers in the same hearing aid it?

Plain-English summary

At hearings before the Illinois Department of Employment Security, referees take evidence and testimony and decide whether to grant or deny unemployment benefits. Employers were using nonlawyers to prepare documentary evidence, examine witnesses, and generally represent the employer at these hearings. The inquiry asked whether those nonlawyers were engaged in the unauthorized practice of law, and whether lawyers who participate in the same hearings aid it.

The opinion concluded that the nonlawyers' conduct was the unauthorized practice of law. Illinois law forbids practicing law without a license (705 ILCS 205/1) and bars corporations from practicing law (705 ILCS 220/1), so corporations must appear through a lawyer. The opinion relied on People ex rel. Chicago Bar Association v. Barasch for the definition of practicing law, which includes appearing before tribunals, examining witnesses, and preparing evidence and documents requiring legal skill. It concluded that the statutory collective-bargaining exception did not reach unemployment-benefit claims, so the employers' use of nonlawyers to give legal advice, prepare evidence, and examine witnesses fell outside any exception and constituted unauthorized practice.

On the second question, the opinion concluded that a lawyer who participates in the process, whether as a hearing officer or as a participant, does not necessarily aid the unauthorized practice of law prohibited by Rule 5.5(b). It concluded that involvement in a matter where another party violates the law or the rules does not by itself become activity in aid of unauthorized practice.

Currency note

This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rule 5.5(a)), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a nonlawyer represent an employer at an Illinois unemployment-benefits hearing?

A: The opinion concluded this is the unauthorized practice of law, because preparing evidence, examining witnesses, and representing a party before the tribunal requires legal skill and falls within no statutory exception.

Q: Must a corporation appear through a lawyer at these hearings?

A: The opinion concluded that corporations may not practice law (705 ILCS 220/1) and must employ a lawyer to represent them, so a corporate employer cannot be represented by a nonlawyer.

Q: Does a lawyer who appears in a hearing alongside a nonlawyer representative aid unauthorized practice?

A: The opinion concluded a lawyer does not necessarily aid the unauthorized practice of law under Rule 5.5(b) merely by participating; involvement where another party violates the rules is not by itself aiding unauthorized practice.

Background and rules framework

The opinion interpreted Rule 5.5(b) (assisting a nonlawyer in the unauthorized practice of law; Model Rule 5.5), read against the Illinois unauthorized-practice statutes (705 ILCS 205/1 and 705 ILCS 220/1) and the collective-bargaining provisions it found inapplicable. It drew the definition of "practice of law" from Barasch.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.5 (unauthorized practice; assisting nonlawyers) / Illinois Rule 5.5(b)

Statutes:

• 705 ILCS 205/1 (practicing law without a license); 705 ILCS 220/1 (corporations may not practice law)
• 5 ILCS 315/5; 115 ILCS 5/3 and 5/5(g) (collective-bargaining provisions)

Cases:

• People ex rel. Chicago Bar Association v. Barasch, 406 Ill. 253, 94 N.E.2d 148 (1950), definition of the practice of law

Other opinions cited:

• ISBA Opinions Nos. 88-8, 91-15, 90-35, and 705

See also

• ISBA Ethics Op. 13-03: Nonlawyer Representation of Parties to a FINRA Arbitration
• ISBA Ethics Op. 95-07: Nonlawyer Providing Assistance or Advice
• ISBA Ethics Op. 96-04: Private Practice in the Name of a Nonlawyer-Owned Corporation

Source

• Landing page: https://www.isba.org/ethics/opinions/9315