West Virginia Department of Health and Human Resources v. C.P. ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term
FILED
__________________
April 23, 2021
released at 3:00 p.m.
No. 19-0802 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
__________________ OF WEST VIRGINIA
WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Respondent Below, Petitioner
v.
C. P.,
Petitioner Below, Respondent
____________________________________________________________
Appeal from the Circuit Court of Webster County, West Virginia
The Honorable Jack Alsop, Judge
Civil Action No. 18-P-8
AFFIRMED
____________________________________________________________
Submitted: January 26, 2021
Filed: April 23, 2021
Patrick Morrisey, Esq. James R. Milam II, Esq.
Attorney General James R. Milam II Attorney at Law,
Lindsay S. See, Esq. PLLC
Solicitor General Summersville, West Virginia
Thomas T. Lampman, Esq. Counsel for Respondent
Assistant Solicitor General
Charleston, West Virginia
Counsel for Petitioner
Colleen C. McCulloch, Esq., Chair
J. Zak Ritchie, Esq., Vice Chair
Unlawful Practice of Law Committee
West Virginia State Bar
Charleston, West Virginia
Counsel for Amicus Curiae Unlawful Practice
Of Law Committee of the West Virginia State Bar
Rebecca D. McDonald, Esq.
West Virginia Department of Transportation
Charleston, West Virginia
Counsel for Amicus Curiae West Virginia
Department of Transportation
JUSTICE WOOTON delivered the Opinion of the Court.
CHIEF JUSTICE JENKINS and JUSTICE ARMSTEAD dissent and reserve the
right to file separate opinions.
SYLLABUS BY THE COURT
1. “Three factors to be considered in deciding whether to address
technically moot issues are as follows: first, the court will determine whether sufficient
collateral consequences will result from determination of the questions presented so as to
justify relief; second, while technically moot in the immediate context, questions of great
public interest may nevertheless be addressed for the future guidance of the bar and of the
public; and third, issues which may be repeatedly presented to the trial court, yet escape
review at the appellate level because of their fleeting and determinate nature, may
appropriately be decided.” Syl. Pt. 1, Israel ex rel. Israel v. W. Va. Secondary Sch.
Activities Comm’n, 182 W. Va. 454, 388 S.E.2d 480 (1989).
2. “On appeal of an administrative order from a circuit court, this Court
is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) and reviews
questions of law presented de novo; findings of fact by the administrative officer are
accorded deference unless the reviewing court believes the findings to be clearly wrong.”
Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
3. “In the exercise of their inherent power the courts may supervise,
regulate and control the practice of law by duly authorized attorneys and prevent the
unauthorized practice of law by any person, agency or corporation.” Syl. Pt. 10, W. Va.
State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959).
i
4. “The exclusive authority to define, regulate and control the practice
of law in West Virginia is vested in the Supreme Court of Appeals.” Syl. Pt. 1, State ex
rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982).
5. “The character of the act, and not the place where it is performed, is
the decisive factor in determining whether the act constitutes the practice of law.” Syl. Pt.
5, W. Va. State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959).
6. While the character of the act is the decisive factor in determining
whether an individual has engaged in the unauthorized practice of law, the act must be
examined in the context of the tribunal where the act occurred and the nature of the
proceedings.
ii
WOOTON, J.:
This is an appeal from the August 9, 2019, order of the Circuit Court of
Webster County vacating the West Virginia Department of Health and Human Resources’
(“DHHR”) 2005 finding of maltreatment by respondent C. P. as to her then-twelve-year-
old son, A. C. 1 The circuit court concluded that the decision of the Administrative Law
Judge (“ALJ”) upholding the maltreatment finding was erroneous, in part, because it was
not supported by a witness with personal knowledge and was based upon inadmissible
DHHR records. Primarily, however, the circuit court concluded that the administrative
hearing before DHHR’s Board of Review was conducted in an unlawful manner because
DHHR’s non-lawyer representative engaged in the unauthorized practice of law.
After careful review of the briefs of the parties and amici curiae, 2 their oral
arguments, the appendix record, and the applicable law, we find that the circuit court
correctly determined that the conduct engaged in by DHHR’s lay representative at the
administrative hearing constituted the unauthorized practice of law. Finding all other
1
Because this case involves minors and sensitive matters, we follow our
longstanding practice of using initials to refer to the children and the parties. See, e.g.,
State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
The Court wishes to acknowledge and express its appreciation for the
contributions of the amici curiae. Briefs were submitted on behalf of the Unlawful Practice
of Law Committee of the West Virginia State Bar (the “Committee”), which appeared by
counsel at oral arguments, as well as the West Virginia Department of Transportation.
1
matters mooted by the death of respondent C. P., 3 we therefore affirm the August 9, 2019,
order of the Circuit Court of Webster County.
I. FACTS AND PROCEDURAL HISTORY
According to DHHR records, in October 2005 an investigation was opened
with respect to C. P. and her twelve-year-old son, A. C. The initial report stated that A. C.
did “whatever he want[ed]” and there was “no one [] to look after him[.]” The investigation
was assigned to Child Protective Services (“CPS”) worker Charles Myers, who the records
indicate conducted interviews of C. P., A. C., A. C.’s father, and A. C.’s sister, C. C.4 Mr.
Myers’ investigation was documented in an “Initial Assessment and Safety Evaluation
Worksheet and Conclusion” (the “assessment”).
Based upon these interviews and as set forth in the assessment, Mr. Myers
found no maltreatment due to lack of supervision but did find maltreatment arising from
A. C.’s alcohol use. However, it appears that no abuse and neglect petition was ever filed
as a result of Mr. Myers’ investigation and finding, no services or further intervention of
3
See infra.
4
During the interviews, Mr. Myers was allegedly provided information that A. C.
was dropped off at the local pool and was allegedly drunk, swearing at patrons. C. C. also
allegedly recounted an episode where A. C. was found passed out drunk in the back of a
truck, with a suspicion that he was also using drugs. C. P. indicated that A. C. would leave
home without permission and did not attend school because he would simply leave or get
“kicked out.” A. C. himself admitted to drinking, smoking marijuana, getting kicked out
of school, and leaving home without permission to attend parties.
2
any sort was initiated, and C. P. was apparently not notified of the maltreatment finding at
that time. 5
At some point in 2017—twelve years later—C. P. learned of the finding in
conjunction with “an unrelated adoption or guardianship proceeding[.]” She then filed a
form “Request for Removal of CPS Finding and Hearing” with DHHR on December 7,
2017. The request for removal was received and denied on February 23, 2018, and a Board
of Review proceeding opened on that date. A hearing was conducted on March 21, 2018,
before David Bishop, a licensed attorney and ALJ for DHHR’s Board of Review. An
informational sheet was provided to C. P. prior to the hearing, advising her she had “the
right to . . . [p]resent your own case or have someone present your case for you, such as a
lawyer, friend, relative, or a community worker.”
At the hearing, Joe Sorrent, a CPS supervisor and non-attorney, appeared on
behalf of DHHR. C. P. appeared on her own behalf. Mr. Sorrent produced and submitted
the CPS investigation file, including the assessment completed by Mr. Myers summarizing
his interviews and findings. The ALJ invited Mr. Sorrent to “introduce [the file] into
evidence” and asked C. P. if she had “any objection” to admission of the file.
5
DHHR conceded the lack of notice in its supplemental brief.
3
Because Mr. Myers apparently no longer worked for DHHR, Mr. Sorrent
testified to the contents of Mr. Myers’ assessment, including the interviews, but called no
other witnesses in support of DHHR’s case. Mr. Sorrent was asked no questions by C. P.
C. P. then testified on her own behalf, stating that the investigation was initiated by her call
to CPS requesting assistance with A. C. because he was getting into trouble at school. C.
P. testified that she had no recollection of any of the events recounted in the assessment.
See supra n.4. She specifically denied any awareness of A. C.’s alcohol use and denied
having an in-person interview with Mr. Myers. C. P. also called C. C. as a witness, who
testified by telephone. C. C. similarly denied having an interview with Mr. Myers
regarding A. C. and denied knowledge of any of the events described in the interview
summaries. In her summary presented to the ALJ, C. P. challenged the veracity of the
alleged maltreatment finding, emphasizing that she was never notified of the finding and
that no action was ever taken against her with regard to A. C.
Upon invitation of the ALJ, Mr. Sorrent then cross-examined C. P. with
questions regarding whether she was aware of being under investigation in 2005,
challenging her denial of that fact and inquiring as to why she had contacted CPS for
assistance rather than A. C.’s school. He inquired as to whether she was aware of A. C.’s
admitted alcohol use and leaving the home without permission, utilizing the submitted
documents to attempt to impeach her denial of having any such recollection. He cross-
examined her concerning allegations that she had left A. C. at home alone to go on a trip,
leaving him with friends, and why she had failed to seek community intervention or
4
services for A. C. During this cross-examination, C. P. admitted that she had a suspicion
about A. C. drinking but stated that she had never actually observed him drinking.
Mr. Sorrent also cross-examined C. C. He inquired about her awareness of
A. C.’s drinking and trouble in school. He challenged her lack of recall of the interview
with Mr. Myers and impeached her with the assessment. Mr. Sorrent argued with C. C.
about whether Mr. Myers’ interview summary contained facts that he “would just randomly
know without getting any type of information” and whether she “would agree that the
documentation that Mr. Myers placed in the initial assessment was accurate, somewhat
accurate,” which she denied.
Mr. Sorrent was then invited to provide a closing “argument or summary,”
in which he highlighted the contents of Mr. Myers’ assessment and admissions made
during C. P.’s testimony, including her admission that she did not attempt to obtain
intervention prior to contacting CPS. Mr. Sorrent emphasized the “threat of harm, that [C.
P.] did not protect her child with regards to his age inappropriate behaviors and the risk
and the threat that means that this child could have hurt himself[.]” He further stated that
“the Department substantiated [its] finding with regards to the lack of supervision and the
child knowingly drinking alcohol.” He concluded by asking the ALJ to “uphold the
Department’s position that maltreatment did occur, that again [C. P.] knowingly knew of
this child’s behavior at the young age of 12 and did not seek any type of help prior to
talking to Mr. Myers[.]”
5
On March 27, 2018, the ALJ issued a “Decision of State Hearing Officer”
upholding DHHR’s substantiation of the maltreatment finding. Specifically, the ALJ
determined that C. P.’s denial of awareness of A. C.’s alcohol use was “not credible or
persuasive when coupled with the assessment, in which [she] reported she was aware of
Child A. C.’s alcohol use.” Citing West Virginia Code § 49-1-3(11)(A)(i) (2012) setting
forth the definition of “neglected child,” the ALJ further concluded that that DHHR
“proved by a preponderance of evidence that [C. P.] neglected Child A. C. by failing to
provide necessary supervision, threatening his health and safety.” 6
C. P. then appealed to the Circuit Court of Webster County, arguing in her
petition that, at best, the investigation revealed that A. C. was incorrigible, rather than
maltreated. The circuit court held a hearing and emphasized the lack of notice of the
maltreatment finding to C. P. The court further expressed its concern that Mr. Myers did
not testify at the administrative hearing and that the ALJ’s credibility findings as to C. P.
were likely occasioned by the thirteen-year delay caused by DHHR’s failure to provide
notice. 7 DHHR conceded that Mr. Myers “could have been” subpoenaed, but that because
6
Mr. Myers’ assessment, however, had found no maltreatment based on failure to
supervise; his finding of maltreatment was based solely on A. C.’s “alcohol use.”
7
In response, counsel for DHHR represented that “for several years, there were
problems with notices going out” and that in that event, the sixty-day time frame for
appealing to the Board of Review was simply waived by DHHR and a hearing held
regardless.
6
the investigative records were admissible under the business record exception, his
testimony was unnecessary.
The circuit court entered an order vacating the ALJ’s decision, finding that
maltreatment had not been substantiated by DHHR. The order concluded that, although
the issue was not raised by C. P.,8 Mr. Sorrent’s lay representation of DHHR constituted
the unauthorized practice of law. The court noted that Mr. Sorrent “not only testified and
presented exhibits but engaged in lengthy cross examination of [C. P.] and her witness.”
The court noted that despite the existence of DHHR rules ostensibly permitting such
representation, any such rule exceeds DHHR’s statutory authority and “violates our state
constitution by attempting to regulate the practice of law, which is solely reserved to the
judicial branch[.]” As such, it concluded that the ALJ “committed plain error by permitting
DHHR to proceed without counsel” and the proceeding was therefore “conducted in an
unlawful manner in violation of the West Virginia Constitution and West Virginia Code.”
This appeal followed.
II. STANDARD OF REVIEW
Generally,
[o]n appeal of an administrative order from a circuit court, this
Court is bound by the statutory standards contained in W. Va.
Code § 29A-5-4(a) and reviews questions of law presented de
novo; findings of fact by the administrative officer are
8
West Virginia Code § 29A-5-4(e) (1998) provides that a reviewing court “may
consider and decide errors which are not assigned or argued.”
7
accorded deference unless the reviewing court believes the
findings to be clearly wrong.
Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). As explained below,
because all that remains in this case is our examination of whether Mr. Sorrent engaged in
the unauthorized practice of law, our review is plenary.
III. DISCUSSION
Before oral argument DHHR alerted the Court that C. P. died in December
2020; she had previously filed a summary response supporting the circuit court’s
determination on the evidentiary issues and declaring that the unauthorized practice of law
issue did not “pertain to her.” DHHR agreed that C. P.’s death mooted the appeal but
moved the Court to hear it nonetheless because it presented issues which are “capable of
repetition and yet will evade review.” See Syl. Pt. 1, State ex rel. M.C.H. v. Kinder, 173
W. Va. 387, 317 S.E.2d 150 (1984) (“A case is not rendered moot even though a party to
the litigation has had a change in status such that he no longer has a legally cognizable
interest in the litigation or the issues have lost their adversarial vitality, if such issues are
capable of repetition and yet will evade review.”). The Court granted the motion and
excused C. P.’s counsel from appearance at oral argument.
The Court now expressly finds that the issue pertaining to the unauthorized
practice of law satisfies the “public interest” exception to the mootness doctrine and should
be addressed “for the future guidance of the bar and of the public”:
8
Three factors to be considered in deciding whether to
address technically moot issues are as follows: first, the court
will determine whether sufficient collateral consequences will
result from determination of the questions presented so as to
justify relief; second, while technically moot in the immediate
context, questions of great public interest may nevertheless be
addressed for the future guidance of the bar and of the public;
and third, issues which may be repeatedly presented to the trial
court, yet escape review at the appellate level because of their
fleeting and determinate nature, may appropriately be decided.
Syl. Pt. 1, Israel ex rel. Israel v. W. Va. Secondary Sch. Activities Comm’n, 182 W. Va.
454, 388 S.E.2d 480 (1989). We further find that all other issues pertaining to the circuit
court’s evidentiary rulings are mooted by C. P.’s death and do not fall within the exceptions
articulated in Israel.
In that regard, DHHR argues that the conduct in the administrative hearing
below—and use of lay representatives of DHHR in Board of Review proceedings in
general—does not constitute the unauthorized practice of law. The Committee, in its brief
and oral argument, agrees with that position. Both carefully craft their endorsement of
such lay representation by characterizing the activity as involving mere factual
development or presentation: “[N]on-lawyer representatives of DHHR who participate in
administrative proceedings by only presenting evidence, including by eliciting testimony
from or cross-examining fact witnesses, or by making primarily fact-based arguments or
summations, are not engaged in the unlawful practice of law.” DHHR further contends
that the nature of its Board of Review proceedings reflects an informal process designed in
aid of a swift and expeditious resolution of such matters, and that unnecessary restrictions
9
on the mode and manner of advocacy in that setting undermines its purpose. DHHR goes
a step further, advocating for a presumption that its lay representatives are not engaged in
the practice of law in such proceedings, emphasizing its long-standing use of such
representatives.
It is well-established that “[i]n the exercise of their inherent power the courts
may supervise, regulate and control the practice of law by duly authorized attorneys and
prevent the unauthorized practice of law by any person, agency or corporation.” Syl. Pt.
10, W. Va. State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959). Moreover, “[t]he
exclusive authority to define . . . the practice of law in West Virginia is vested in the
Supreme Court of Appeals.” Syl. Pt. 1, in part, State ex rel. Askin v. Dostert, 170 W.Va.
562, 295 S.E.2d 271 (1982). Accordingly, the Court has adopted the following general
definition of the practice of law: “In general, one is deemed to be practicing law whenever
he or it furnishes to another advice or service under circumstances which imply the
possession and use of legal knowledge and skill.” W. Va. Def. Prac. L., (eff. January 1,
2020) (“Definition”).
Pertinent to the issue before the Court, the Definition further provides:
More specifically but without purporting to formulate a
precise and completely comprehensive definition of the
practice of law or to prescribe limits to the scope of that
activity, one is deemed to be practicing law whenever . . . (3)
one undertakes, with or without compensation and whether or
not in connection with another activity, to represent the interest
of another before any judicial tribunal or officer, or to
10
represent the interest of another before any executive or
administrative tribunal, agency or officer otherwise than in the
presentation of facts, figures or factual conclusions as
distinguished from legal conclusions in respect to such facts
and figures.
Id. (emphasis added). Unquestionably, this Definition focuses primarily on conduct which
constitutes the practice of law and, in this regard, constrains non-lawyer representation in
administrative tribunals to the “presentation of facts, figures or factual conclusions[.]”
Similarly, this Court has held that “[t]he character of the act, and not the place where it is
performed, is the decisive factor in determining whether the act constitutes the practice of
law.” Syl. Pt. 5, Earley, 144 W. Va. 504, 109 S.E.2d 420. In that regard, the circuit court
below concluded that “the fact that this was an administrative hearing is [of] no moment.”
DHHR therefore presents an initial challenge to the circuit court’s analysis
of the unauthorized practice issue, arguing that the court erred in focusing on Mr. Sorrent’s
conduct without regard to the nature of the tribunal, the proceedings, and the representation
itself. To this limited extent, we agree with DHHR and do not construe syllabus point five
of Earley as restrictively as the circuit court. Historically, our analysis has considered not
only the “character of the act” at issue, but the nature and purpose of the tribunal and its
processes where the act occurred. See id., 114 W. Va. at 513, 109 S.E.2d at 427-28(examining procedures employed and nature of claims litigated in workers’ compensation
hearings); State ex rel. Frieson v. Isner, 168 W. Va. 758, 776-78, 285 S.E.2d 641, 654-55
(1981) (examining purpose and nature of magistrate court proceedings); Shenandoah Sales
& Serv., Inc. v. Assessor of Jefferson Cty., 228 W. Va. 762, 770, 724 S.E.2d 733, 741
11
(2012) (prohibiting activities which “constitute the practice of law in a circuit court”
(emphasis in original)).
We find that syllabus point five of Earley, rather than constraining the scope
of our analysis, merely states the obvious—that conduct is the sine qua non of the
unauthorized practice of law, and an act will neither be regarded nor exempted as
unauthorized practice irrespective of its character simply because of where it occurs. And
while we agree that the character of the act is the decisive factor in determining whether
an individual has engaged in the unauthorized practice of law, the act must be examined in
the context of the tribunal where it occurred and the nature of the proceedings.
Accordingly, an examination of DHHR’s Board of Review and the proceedings below are
in order.
DHHR BOARD OF REVIEW PROCEEDINGS
While DHHR provides little by way of comprehensive discussion of the
Board of Review and how it conducts its ordinary business, it is a statutory creation
authorized by West Virginia Code § 9-2-6(13) (2018), 9 and appears to operate under the
9
Subsection 13 empowers the Secretary of DHHR to
organize within the department a Board of Review, consisting
of a chairman appointed by the secretary and as many assistants
or employees of the department as may be determined by the
secretary and as may be required by federal laws and rules
respecting state assistance, federal-state assistance, and federal
(continued . . .)
12
umbrella of the Inspector General. West Virginia Code § 9-2-6(7) empowers the Secretary
to create the Office of Inspector General for the purpose of
conducting and supervising investigations, performing
inspections, evaluations, and review, and providing quality
control for the programs of the department. The Office of
Inspector General shall be headed by the Inspector General
who shall report directly to the secretary. . . . The secretary
shall place within the Office of Inspector General any function
he or she deems necessary.
Although the proceedings at issue in the instant case involved a challenge to a CPS finding
of maltreatment, the Board of Review’s purview is considerably broader. 10 We therefore
assistance, such Board of Review to have such powers of a
review nature and such additional powers as may be granted to
it by the secretary and as may be required by federal laws and
rules respecting federal-state assistance and federal assistance.
10
The Board of Review’s official website states that its mission is to “preserve the
integrity of Department programs by providing due process to appellants through impartial
hearings and timely decisions.” See http://www.wvdhhr.org/oig/bor.html (last visited
March 10, 2021). The website indicates that reasons for hearings include:
denial of benefits, termination of benefits, reduction of
benefits, disputes over findings by Child Protective Services
(CPS) and Adult Protective Services (APS), closure or denial
of foster homes, closure or denial of child care providers,
determination of Supplemental Nutrition Assistance Program
(SNAP) intentional program violations, nursing facility
discharge or transfer, and disqualification of Women, Infants,
and Children (WIC) Vendors
Id. The Court recognizes that many of these hearings may not implicate the same
adversarial process and/or conduct by a DHHR lay representative as a challenge to a CPS
finding. In fact, many such proceedings involving benefits may well be similar to informal
unemployment compensation proceedings conducted before a referee, rather than an ALJ,
where lay representation has been widely found permissible in other jurisdictions, as
(continued . . .)
13
find it appropriate to limit our analysis and discussion to the specific proceedings
conducted herein, involving DHHR’s use of a lay representative to defend a challenge to a
CPS finding of maltreatment.
Proceedings before DHHR’s Board of Review are governed by both the
Administrative Procedures Act, West Virginia Code §§ 29A-5-1 to -5, and regulations
promulgated by DHHR. See W. Va. C.S.R. § 69-1-3.1 (“All administrative hearings
conducted pursuant to this rule will be held in accordance with the provisions of West
Virginia Code, § 29A-5-1 et seq., and with the provisions of this rule.”). With respect to
representation by non-lawyers in Board of Review proceedings, neither the Administrative
Procedures Act nor the rules expressly permit or forbid this practice, unlike many other
agencies’ procedural rules. 11 DHHR, however, argues that West Virginia Code of State
argued by DHHR and discussed more fully infra. The propriety of lay representation of
DHHR and the actions typically engaged in by such representatives in those type of
proceedings, however, is not presently before the Court.
11
See, e.g, W. Va. C.S.R. § 84-1-5.4.3 (stating that in proceedings before the
Unemployment Commission, “[a] government employer, whether federal, state, or local,
or the Unemployment Compensation Claims office, may be represented only by an attorney
duly licensed or authorized to practice law in the State of West Virginia.”); Id. § 114-76-
3 (stating that in proceedings before Insurance Commissioner, individuals may appear pro
se, corporations may be represented only by an attorney, and “[r]epresentation by lay
persons [is] prohibited”); Id. § 150-1-12.7 (in proceedings before the Public Service
Commission, parties may appear only pro se or by attorney, but permitting partner to
represent partnership, with permission); compare with, e.g., Id. § 121-1-110.5.1 (stating
that in small claims cases before Office of Tax Appeals, which are “handled more
informally,” petitioner “may appear before the office of tax appeals in his or her own
behalf, or may be represented by an attorney or by any other person as he or she may
(continued . . .)
14
Rules § 69-1-4.7 permits DHHR to utilize lay representatives by stating: “Every party, as
well as the secretary and his or her staff, shall have the right of cross-examination of
witnesses who testify, and shall have the right to submit rebuttal evidence.” (Emphasis
added). 12
choose.”); Id. § 37-1-2.6 (stating that in proceedings before the Mine Board of Appeals,
parties may appear pro se or by counsel and providing “any party who is also an operator
may be represented by a full-time employee, and any miner may be represented by the
representative of miners.”).
12
In this regard, as part of DHHR’s first assignment of error, it claims that the circuit
court exceeded its authority by “invalidating” West Virginia Code of State Rules § 69-1-
4.7. We disagree with DHHR’s characterization. While we note the inclusion of language
in the discussion portion of the circuit court’s order to the effect that it “finds” the Rule
“statutorily impermissible,” we do not agree that the court’s order ultimately purports to
invalidate the rule. In its conclusion, the circuit court ruled only that the hearing was
conducted in an unlawful manner due to the unauthorized practice of law and that DHHR
failed to produce competent evidence to meet its burden of proof, reversing and vacating
the ALJ’s decision as a result. We therefore do not find occasion to address the circuit
court’s authority to invalidate the Rule itself.
In that regard, however, while DHHR urges that West Virginia Code of State Rules
§ 69-1-4.7 implicitly permits such representation—a reading to which this Court defers for
purposes of this case—we note that a rule stating simply that both parties, including
whichever representative appears for DHHR, are entitled to cross-examination of witnesses
generally does not necessarily suggest that a lay representative may perform the cross-
examination. A similar reading of federal legislation was adopted by the Third Circuit:
Although the Act does give “[a]ny party to any hearing” the
right to “present evidence and confront, cross-examine, and
compel the attendance of witnesses,” those functions are not
designated to be performed by lay advocates. Furthermore, the
statute does not use the word “represent” . . . as would be
expected if Congress [so] intended[.]
(continued . . .)
15
The rules governing proceedings before the Board of Review, as set forth in
West Virginia Code of State Rules §§ 69-1-1 to -10, reveal that a hearing officer must be
a licensed attorney, unless he or she is otherwise a member of the Board of Review. Id. §
69-1-8.1. 13 Discovery is permitted with approval of the hearing officer and subpoenas may
be issued. Id. §§ 69-1-6 and -7. A record of the proceedings is created, and both the West
Virginia Trial Court Rules and West Virginia Rules of Evidence are applicable, although
strict application of the latter is tempered somewhat by permitting the admission of
evidence “of a type commonly relied upon by reasonably prudent persons in the conduct
of their office” when “necessary to ascertain facts not reasonably susceptible of proof.”
Id. §§ 69-1-4.1, -4.3, and -4.5. Parties may present “evidence and argument,” including
calling of witnesses; cross-examination is permitted by “every party” as well as “the right
to submit rebuttal evidence.” Id. §§ 69-1-4.1 and -4.7. DHHR’s documentation including
Arons v. N. J. State Bd. of Educ., 842 F.2d 58, 62 (3d Cir. 1988) (citations omitted). The
foregoing notwithstanding, the Court does not address herein the adequacy or propriety of
the Rule itself. Rather, we limit our review to whether the circuit court properly concluded
that Mr. Sorrent engaged in the unauthorized practice of law in the proceedings below.
13
During oral argument, however, DHHR stated that the Board of Review does not
always utilize hearing officers who are attorneys; it is not clear whether those officers are
otherwise members of the Board of Review. DHHR fails to provide any particular detail
in its briefing as to which types of matters are assigned to non-attorney hearing officers
rather than an ALJ. Regardless, the Rule speaks for itself and in fact the matter below was
presided over by an ALJ who is a licensed attorney.
16
“papers, records, agency staff memoranda and documents . . . shall be offered and made a
part of the record in the case.” Id. § 69-1-4.6. 14
The ALJ’s decision is memorialized in formal findings of fact and
conclusions of law. Id. § 69-1-9. If appealed to the circuit court, such findings and
conclusions are governed by a deferential standard of review. W. Va. Code § 29A-5-4
provides that such review “shall be upon the record made before the agency” and the court
may reverse, vacate or modify the decision only
if the substantial rights of the petitioner or petitioners have
been prejudiced because the administrative findings,
inferences, conclusions, decision or order are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the
agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
14
The appendix record also contains an information sheet provided to claimants in
advance of their hearing which states that he or she “ha[s] the right to,” among other things,
“[p]resent your own case or have someone present your case for you, such as a lawyer,
friend, relative, or a community worker.” The sheet further states that the procedures allow
for “[c]ross-examination by the Department’s representative[.]”
17
Id. § 29A-5-4(f) and (g); see W. Va. C.S.R. § 69-1-9.4 (“All appeals from the final order
or decision of the secretary shall be taken pursuant to West Virginia Code, § 29A-5-4.”).
Having examined the nature of the Board of Review and its proceedings, we
turn now to our caselaw for guidance as to whether the tribunal and proceedings themselves
present a heightened risk for lay representation which encroaches into the unauthorized
practice of law. DHHR argues that proceedings before the Board of Review are tantamount
to magistrate court proceedings, where this Court has expressly sanctioned the use of non-
attorney representation. See Frieson, 168 W. Va. 758, 285 S.E.2d 641. It argues that,
similar to proceedings in magistrate court, Board of Review proceedings are “relatively
informal” and that their construct is designed to make the proceedings “accessible to parties
who frequently do not have legal representation[.]” It further argues that these proceedings
are akin to unemployment compensation hearings before a referee where non-attorney
representation has been found not to constitute the unauthorized practice of law in several
jurisdictions.
In Frieson, this Court examined whether a debt collection agency could
properly appear on behalf of a creditor in magistrate court. The Court concluded that the
agency could not, through assignment or otherwise, make appearances or prepare and file
pleadings on behalf of another in magistrate court without engaging in the unauthorized
practice of law. See id., Syl. Pt. 3. However, the Court also held, more generally, that the
statute authorizing appearances “by agent” in magistrate court, West Virginia Code § 50-
18
4-4a (1980), did not infringe on the Court’s power to regulate the practice of law. Syllabus
point four, in part, of Frieson holds that the statute does not permit the unauthorized
practice of law, but rather “anticipates the appearance of a party by a non-lawyer agent on
a casual, non-recurring, non-pay basis as a means of assisting the party appearing pro se.”
168 W. Va. at 758, 285 S.E.2d at 641. (Emphasis added). The Court endorsed this limited
“intrusion” into its power to regulate the practice of law, stating that
[w]here [] the intrusion upon the judicial power is minimal and
inoffensive, and is consistent with and intended to be in aid of
the aims of the Court with respect to the regulation of the
practice of law, such legislation [permitting lay representation]
may be upheld as being in aid of the judicial power.
Id. at 777, 285 S.E.2d at 654.
In endorsing lay representation in magistrate court, Frieson noted that
magistrate court procedures were “streamlined and simplified” and designed to “effect[] a
speedy and efficient resolution of small claims.” Id. at 777-78, 285 S.E.2d at 654-55. It
observed that magistrates were “not required to have legal training or to be licensed to
practice law.” Id. at 777, 285 S.E.2d at 654. Critically, the Court explained that the statute
contemplates
permitting the casual appearance, not for pay, by laymen in a
representative capacity as a form of neighborly or kindred
accommodation. It anticipates an isolated or casual
appearance by a non-lawyer friend or relative of a party to
proceedings in magistrate courts for the purpose of assisting
such party in representing himself in the litigation. The statute
does not purport to authorize laymen to represent parties in
magistrate court on a regular basis or to engage in such activity
19
as a business or for pay. . . . Such representation is well within
the spirit and purpose of the magistrate system as envisioned
by this Court and the Legislature.
Id. at 778, 285 S.E.2d at 654-55 (emphasis added).
Despite DHHR’s insistence that Board of Review proceedings are
tantamount to the “people’s court” motif presented in magistrate court, we find there are
marked and critical differences. First, Board of Review proceedings require the hearing
officer to be a licensed attorney, unless a member of the Board; as Frieson noted,
magistrates need not be attorneys. Second, from a procedural standpoint, Board of Review
proceedings appear to offer many of the same litigation privileges associated with most
trial courts. While somewhat truncated, West Virginia Code of State Rules § 69-1-1 et seq.
describes a robust set of devices and procedures which closely mirror traditional
adversarial proceedings: discovery, subpoena power, a stenographic record, the ability to
make motions and lodge objections, the ability to call and cross-examine witnesses, and
introduce documents, all of which culminate in formal findings of fact and conclusions of
law. 15 Both the West Virginia Rules of Evidence and West Virginia Trial Court Rules
15
The sliding scale of the formality of agency proceedings has been described as
follows:
Informal agency action, is the “accepting, reviewing, and
processing” of various forms; the agency may or may not give
reasons for its decision. Formal agency action, on the other
hand, is when the agency holds a full evidentiary hearing with
“elements of a trial-type proceeding without actually slipping
over the line into formal adjudication.”
(continued . . .)
20
apply. 16 As such, these processes are only as “streamlined and simplified” as the parties
choose to make them and in accordance with the proceeding’s expedited timeline.
Most importantly, however, on appeal from a magistrate court bench trial,
the circuit court engages in a de novo review. See Syl. Pt. 3, State ex rel. DeCourcy v.
Dent, 240 W. Va. 163, 807 S.E.2d 834 (2017) (“An appeal of a civil action tried before a
magistrate without a jury under West Virginia Code § 50-5-12(b) (2016) shall be a trial de
novo, meaning a new trial in which the parties may present new evidence including witness
testimony not presented in magistrate court.”). In contrast, on appeal from an
administrative proceeding, the reviewing court is limited to a deferential review, upon the
established record. See Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996)
(“The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential
ones which presume an agency’s actions are valid as long as the decision is supported by
substantial evidence or by a rational basis.”). The deference afforded to the ALJ is
substantial; as this Court has explained,
Clayton, Barbara Allison, Are We Our Brother’s Keepers? A Discussion of Nonlawyer
Representation Before Texas Administrative Agencies and Recommendations for the
Future, 8 Tex. Tech Admin. L.J. 115, 124 (2007) (quoting Fox, William F., Jr.,
Understanding Administrative Law 8, at 314 (1997)).
16
Notably, although DHHR suggests the Rules of Evidence are “relaxed,” the
circuit court below found that DHHR failed its burden of proof, in part, by concluding that
the ALJ improperly admitted evidence which did not satisfy the business records exception
to the hearsay prohibition. Again, however, we do not pass upon the correctness of the
circuit court’s ruling that the DHHR investigative file was not properly admitted into
evidence.
21
[w]e must defer to the ALJ’s credibility determinations and
inferences from the evidence, despite our perception of other,
more reasonable conclusions from the evidence. Board of
Education of the County of Mercer v. Wirt, 192 W.Va. at 579,
453 S.E.2d at 413 (“[i]ndeed, if the lower tribunal’s conclusion
is plausible when reviewing the evidence in its entirety, the
appellate court may not reverse even if it would have weighed
the evidence differently if it had been the trier of fact”).
Whether or not the ALJ came to the best conclusion, however,
she was the right person to make the decision.
Martin v. Randolph Cty. Bd. of Educ., 195 W. Va. 297, 306, 465 S.E.2d 399, 408 (1995).
Moreover, Frieson underscored the “isolated” and “casual” appearances
permitted by lay representatives in magistrate court, rejecting representation which
constituted the lay advocate’s business model. 168 W. Va. at 778, 285 S.E.2d at 654. In
contrast, DHHR indicates that it regularly utilizes its lay representatives in Board of
Review proceedings, engaging the Attorney General’s office only for preparation of legal
memoranda where requested. DHHR estimates that its practice of appearing by lay
representative has been ongoing for at least thirty years, in approximately 2,000
proceedings per year, and “inform[s] the Legislature’s and Department’s budgetary and
staffing decisions.” We find that this is a far cry from the “isolated,” “casual,” and “non-
recurring” representation endorsed in Frieson.
We are also unpersuaded by DHHR’s attempt to liken its proceedings to
unemployment compensation proceedings in other jurisdictions that permit lay
representation. In Harkness v. Unemployment Compensation Board of Review, 920 A.2d
22162, 168 (Pa. 2007), the Pennsylvania Supreme Court approved use of non-attorney
representatives on the basis that the unemployment proceedings were “largely routine and
primarily focus upon creating a factual basis on which a referee will award or deny
unemployment compensation benefits” and that such non-attorney representatives
typically “attend unemployment compensation proceedings to provide appropriate
personnel records and other documents[.]” Accord Sudzus v. Dep’t of Employment Sec.,
914 N.E.2d 208, 217 (Ill. App. Ct. 2009) (finding no unauthorized practice in appearing in
unemployment proceeding where non-lawyer “supplied simple, fact-based answers”).
However, the Harkness court underscored that in those proceedings, “[t]he rules of
evidence are not mandated; there is no pre-hearing discovery; . . . [and] indeed there is no
requirement that the referee be a lawyer.” Id.In Henize v. Giles, 490 N.E.2d 585, 589 (Ohio 1986), the court conceded that
non-attorney representation in an unemployment compensation proceeding “could
arguably be viewed as the practice of law.” (footnote omitted). However, it found that in
that “limited setting” such proceedings were not “adversarial proceedings” but rather were
“an informal mechanism through which the referee, in a participatory capacity, ascertains
the facts involved.” Id. at 590 (emphasis in original) (footnote omitted). Like Harkness,
the Henize court noted that the board was not bound by “evidentiary or procedural rules in
the conduct of hearings” nor are “board referees and board members [] statutorily required
to be attorneys.” Id. at 587-88.
23
We find that the unemployment compensation proceedings before a “referee”
as described in these cases more akin to the informal unemployment compensation claims
review process outlined in West Virginia Code § 21A-7-4 (1994), where a party may
request a hearing before a non-attorney deputy. Pursuant to West Virginia Code § 21A-7-
7 (1981), an aggrieved party may then appeal the deputy’s findings to an appeal tribunal
that conducts a full evidentiary hearing. Those appeal proceedings are governed by
procedural rules 17 similar to those outlined in West Virginia Code of State Rules § 69-1-1
et seq. for DHHR Board of Review proceedings. In the appeal proceedings, lay
representation is not permitted. See W. Va. C.S.R. § 84-1-5.4.
Accordingly, the Court finds that the proceedings and conduct which
occurred in the instant case bear little resemblance to magistrate court or unemployment
compensation proceedings before a non-attorney referee for purposes of our analysis here.
Rather, we observe that both the conduct at issue and proceedings below are nearly
identical to those we addressed in Earley, where we held that lay representation of
claimants in hearings before the then-workers’ compensation commission or its hearing
examiners constituted the unauthorized practice of law. See 144 W. Va. 504, 109 S.E.2d
420, syl. pt. 4. 18 The Court found that one of the hallmarks of legal representation is
17
See W. Va. C.S.R. § 84-1-1 et seq.
18
Syllabus Point 4 of Earley states:
(continued . . .)
24
“appearance for clients before public tribunals, which possess the power and authority to
determine rights of life, liberty and property according to law, in order to assist in the proper
interpretation and enforcement of law.” Id. at 520, 109 S.E.2d 431. With respect to the
specific proceedings and conduct presented in Earley, the Court carefully examined the
nature of the claim and manner in which the proceedings were conducted, observing that
after a finding was made by the Commissioner and protested by a claimant, “[w]hen this
stage of the proceeding is reached the proceeding becomes adversary.” Id. at 513, 109
S.E.2d at 428 (emphasis added).
In light of the adversarial nature of our workers’ compensation proceedings,
the Court analogized them to those addressed by the South Carolina Supreme Court in State
ex rel. Daniel v. Wells, 5 S.E.2d 181 (S. C. 1939), holding modified by In re Unauthorized
Practice of Law Rules Proposed by S.C. Bar, 422 S.E.2d 123 (S. C. 1992). In particular,
we restated the Daniel court’s conclusion that
“[w]hile there are no formal pleadings, the issues as to both
facts and law are made before such commissioners. At this
hearing the record is made and it is upon this record that the
A layman who appears in behalf of claimants for
compensation at hearings before the State Compensation
Commissioner, an administrative agency or tribunal, and his
duly appointed trial examiners, and prepares notices of appeal
from the rulings of the commissioner to the Workmen’s
Compensation Appeal Board, is engaged in the practice of law
and such conduct constitutes the unauthorized practice of law
which may be prevented by injunction.
144 W. Va. 504, 109 S.E.2d 420.
25
proceedings may be reviewed by the full Commission, from
whose award an appeal may be taken to the Circuit Court. The
ultimate rights of the parties depend upon the record made
before the hearing commissioner. . . . Examination and cross
examination of witnesses require a knowledge of relevancy and
materiality. Such examination is conducted in much the same
manner as that of the Circuit Court. Improper or irrelevant
testimony must be objected to, or otherwise it may be
considered. . . . Facts must be weighed by the commissioner in
the light of legal principles. The hearing commissioner makes
not only findings of fact, but states his conclusions of law.”
Earley, 144 W. Va. at 524, 109 S.E.2d at 433-34 (quoting Daniel, 5 S.E.2d at 184-85)
(emphasis added). We find that these elements closely mirror the proceedings in the case
presently before the Court.
Moreover, the Tennessee Court of Appeals came to the same conclusion
when evaluating a non-attorney’s conduct before its Water Quality Control Board
(“Board”). See Tenn. Env’t Counsel, Inc. v. Tenn. Water Quality Control Bd., 254 S.W.3d
396 (Tenn. Ct. App. 2007). In Tennessee Environmental, the court found that contested
case hearings before the Board constituted “‘“formal, adversarial proceedings where rules
of evidence and civil procedure are enforced, the parties file pleadings, often file briefs and
motions, present argument[s], examine and cross-examine witnesses, and make opening
and closing statements.”’” 254 S.W.3d at 403 (Tenn. Ct. App. 2007) (quoting Tenn. Env't
Council, Inc. v. Water Quality Control Bd. (“Cumberland Yacht Harbor”), No.
M200502425COAR3CV, 2007 WL 2827470, at *7 (Tenn. Ct. App. Sept. 27, 2007)). It
found specifically that where, in such proceedings, “‘a party expects to engage in direct or
cross-examination of witnesses and rules of evidence are expected to be followed, then the
26
matter is not an informal gathering session wherein information is merely shared, and
therefore, legal training, skill, or judgment is essential.’” Id. at 407 (quoting Cumberland
Yacht Harbor, 2007 WL 2827470, at *8). Like the circuit court below, the Tennessee
Environmental court observed that “‘the need for able representation therein becomes even
greater when a party seeks judicial review of the administrative proceedings and the rulings
therein . . . . because, the appellate review . . . is limited to the record of the administrative
proceedings.’” Id. (quoting Cumberland Yacht Harbor, 2007 WL 2827470, at *7); accord
In re Arons, 756 A.2d 867, 874 (Del. 2000) (finding lay representation in due process
hearings before educational disabilities board constituted unauthorized practice because
“[t]he hearings are conducted in a manner typical of contested, adversarial adjudicatory
hearings, including the direct and cross-examination of witnesses and the required
exchange of witness lists and documents in advance of the hearing.”); Fla. Bar v. Moses,
380 So. 2d 412 (Fla. 1980) (finding that representation of school board before
administrative hearing officer in unfair labor practices proceeding constituted the
unauthorized practice of law).
CONDUCT IN THE DHHR BOARD OF REVIEW PROCEEDINGS BELOW
While not dispositive, the foregoing discussion demonstrates that the
procedures employed by the Board of Review in this context are highly suggestive of a
more traditionally adversarial proceeding, thereby increasing the likelihood that lay
advocates may inadvertently engage in the unauthorized practice of law. However, as
27
previously observed, the “decisive factor” in evaluating a claim of the unauthorized
practice of law is the character of the act or actions at issue. Syl. Pt. 5, Earley, 144 W. Va.
504, 109 S.E.2d 420. DHHR insists that Mr. Sorrent simply questioned C. P. on factual
matters, presented materials, and provided a “brief closing summation [which] . . . did not
involve any legal analysis, merely further reiteration of the facts.” DHHR more
specifically attempts to minimize the cross-examination conducted by Mr. Sorrent,
characterizing it as a “simple factual presentation[] . . . involv[ing] cross-examination” and
which “concerned facts, not legal interpretations or theories.” In that regard, DHHR
maintains that Mr. Sorrent engaged in nothing more than the “factual presentation”
expressly contemplated in our Definition of the Practice of Law. See supra, Definition.
We disagree. The Definition makes clear that representation before
administrative tribunals by non-lawyers is limited to “presentation of facts, figures or
factual conclusions.” Id. Far in excess of “presentation” of the facts underlying the
contested maltreatment finding, Mr. Sorrent utilized both impeachment and cross-
examination—both traditional, adversarial litigation tactics—to elicit specific facts and
admissions designed to bolster DHHR’s legal position that C. P. had subjected A. C. to
maltreatment. Mr. Sorrent directly attacked the credibility of C. P. and C. C. and
challenged their denials of the content of the investigation; he utilized the assessment to
impeach them and vigorously cross-examined them on the veracity of those denials. See
The W. Va. State Bar Comm. on Unlawful Prac.; Advisory Opinion 94-001, W. Va. Law.,
August 1994, at 11, 14 (stating that lay representative’s “actual participation at hearings
28
before the [workers compensation] Commissioner, and particularly in determining what
evidence to introduce and how and when to cross examination [sic] witnesses, clearly
would fall within the definition of the practice of law.” (emphasis added)).
Further, Mr. Sorrent provided a summation to the ALJ that underscored not
merely objectively demonstrable facts, but the hotly contested facts he deemed most
helpful to DHHR’s position. More importantly, Mr. Sorrent argued the legal conclusions
which should be drawn from those facts. He expressly advocated that C. P. had committed
maltreatment in accordance with West Virginia law, in contravention of the Definition’s
prohibition on presenting “legal conclusions in respect to such facts and figures.” See
supra, Definition. In fact, the ALJ stated in its findings that based upon “the evidence
presented,” DHHR “proved by a preponderance of evidence that [C. P.] neglected Child
A. C. by failing to provide necessary supervision”—a finding that had not been made in
Mr. Myers’ assessment, but was argued by Mr. Sorrent at the hearing. Indeed, the ALJ
adopted Mr. Sorrent’s position wholesale in finding that DHHR substantiated its allegation
that “neglect occurred . . . under West Virginia Code § 49-1-3.” As the Earley court
observed with respect to contested adversarial proceedings, “‘[f]acts must be weighed . . .
in the light of legal principles’” and we find that is precisely what occurred below. 144 W.
Va. at 525, 109 S.E.2d at 434 (quoting Daniel, 5 S.E.2d at 185).
The gravity of the maltreatment finding—to both C. P. and DHHR—cannot
be overstated. As demonstrated in this case, this finding affected C. P.’s interests in the
29
course of guardianship or adoption proceedings—so much so that she engaged in extensive
proceedings to have the finding set aside. Clearly, such a finding may also affect an
individual’s employment and/or licensure prospects. Commensurately, DHHR has a well-
established interest in ensuring that such findings are thoroughly investigated,
substantiated, and properly registered. Any suggestion that the Board of Review
proceedings in this instance constituted an informal, perfunctory review of largely
indisputable “facts or figures” defies reality. Rather, the proceedings were plainly those of
a contested, adversarial nature, as hallmarked by the use of many of the procedural due
process mechanisms afforded our most sacred and valued interests. Mr. Sorrent’s conduct
in that regard was that of an advocate, utilizing litigation skills and tactics designed to
bolster and champion DHHR’s findings—both factual and legal. We therefore conclude
that the circuit court correctly found that the proceedings below were based upon unlawful
process, due to the unauthorized practice of law by DHHR’s lay representative, Mr.
Sorrent.
We caution that nothing in this opinion is to be read as foreclosing lay
representation in administrative proceedings generally, or Board of Review proceedings
specifically. As indicated above, the tribunal and proceedings involved in the alleged
unauthorized practice give context to the character of the act, which is ultimately decisive.
Accordingly, our determination that Mr. Sorrent engaged in the unauthorized practice of
law in the proceedings below stems from a holistic assessment of the nature of the
30
proceedings, the peculiarities of this tribunal, and the particular character of the conduct
demonstrated in the administrative proceedings below. 19
LAY REPRESENTATION OF STATE AGENCIES AND THE COMMITTEE’S 2018 REPORT
Before concluding, we pause to consider a recurrent theme throughout
DHHR’s brief: that the public protection concerns which typically inform and guide
unauthorized practice of law determinations are not present when a State agency is
represented by non-lawyers in administrative proceedings: “Supervisor Sorrent’s actions
. . . certainly did not pose any danger to the public” because “[t]he public does not rely on
these employees for representation.” DHHR appears to argue that the public protection
concerns expressed in our caselaw apply only to private individuals—a notion which, in
fairness, may be inferred from the language in Earley tying its holding to “the protection
19
Similarly, the Tennessee Environmental court noted that its holding was not a
blanket prohibition on lay representation in administrative proceedings. It clarified that, in
that particular tribunal, the devices employed and conduct engaged in would not always
come to fruition and therefore would not necessarily implicate unauthorized practice:
[I]f the letter or petition does not trigger adversarial
proceedings, wherein the rules of evidence may be enforced,
adversarial pleadings may be filed, or direct and cross
examination of witnesses may be involved, but instead sets the
stage for a more informal, information gathering proceeding,
the corporation’s representative need not be a licensed
attorney.
754 S.W.3d at 409.
31
of the public from being advised and represented in legal matters[.]” Syl. Pt. 6, in part,
Earley, 144 W. Va. 504, 109 S.E.2d 420.
The Committee takes a similar position, best demonstrated by a 2018 report
issued by the Committee and attached to its brief in this matter. While the Committee takes
the position that no unauthorized practice occurred in the instant case, the 2018 report
concludes that “preparation of pleadings, discovery requests, discovery responses and
appearances on behalf of a claimant at the Administrative Law Judge level of state
proceedings is de facto the unlawful practice of law[.]” (Emphasis added). We assume
that the Committee’s stark departure in this case from the conclusions of the 2018 report
are due to the limitations placed on its findings that they pertained to non-lawyer
representation of claimants, rather than State agencies.
Nonetheless, the 2018 report makes excellent points about the dangers of lay
representation in administrative proceedings, primarily based upon the deferential standard
of review of such proceedings upon appeal to circuit court and the inability to adduce
supplemental or corrected evidence on appeal. Additionally, the report states that,
irrespective of regulations permitting such practice, agencies “are not empowered to
authorize such representation as the Supreme Court [] is the sole determinant of what
constitutes the practice of law[.]”
32
While we commend and share the parties’ understandably heightened
concern for protecting the general public from the dangers inherent to lay representation,
we cannot agree that lay representation of State agencies—which act in service to the
general public—presents zero risk to the public. West Virginia Code § 49-1-105(a) (2015)
provides that “[i]t is the purpose of this chapter to provide a system of coordinated child
welfare and juvenile justice services for the children of this state. The state has a duty to
assure that proper and appropriate care is given and maintained.” West Virginia Code §
49-1-105(b)(12) further states that “[t]he child welfare and juvenile justice system shall . .
. [p]rotect the welfare of the general public.” The investigation of child abuse and neglect
serves not only the needs of the specific family and child, but also broader societal interests.
The public interest in adequate investigation of such matters and proper handling of the
procedural aspects of such investigation is obvious.
More to the point, however, the State’s use of lay representatives—who are
unbridled by the West Virginia Rules of Professional Conduct—as adversaries to
individuals who are commonly self-represented raises particular concern. DHHR
represents that individuals appearing before the Board of Review are frequently “under-
privileged, pro se” claimants. In that regard, the Rules of Professional Conduct do not
merely regulate conduct before specific tribunals or with other lawyers, but command fair
dealing with opposing parties generally. Rule 3.4(a) through (c) of the Rules of
Professional Conduct states that a lawyer shall not obstruct another party’s access to
evidence, conceal evidence, falsify evidence, assist false witness testimony, or knowingly
33
disobey the tribunal rules. The Rule further prohibits a lawyer from alluding to irrelevant
or unsupportable matters, asserting personal knowledge except when testifying as a
witness, or stating personal opinions on the “justness of a cause” or credibility of a witness.
Rule 3.4(e). The dangers inherent in these prohibited acts is substantially amplified when
the opposing party is self-represented. Further, the Rules of Professional Conduct compel
candor toward the tribunal even with regard to purely factual matters—the limited realm
in which lay representatives presumably operate. Rule 3.3(a)(1) through (3) of the Rules
of Professional Conduct expressly prohibits the making of a false statement, failure to
correct a false statement, and the offering of evidence known to be false. By no means do
we suggest that lay representatives of DHHR are particularly susceptible to engaging in
dishonest or prohibited conduct. However, to the extent that DHHR and the Committee
suggest that lay representation of a State agency, as opposed to a private individual,
presents a lesser or non-existent danger to the public in proceedings such as these, we
firmly disagree.
Finally, we are sympathetic to DHHR’s entreaty that the Court issue specific
guidance as to precisely what conduct is and is not permissible by DHHR lay advocates in
Board of Review proceedings. 20 However, as evidenced by our caselaw on this subject,
20
Amicus curiae West Virginia Department of Transportation makes a similar
request. While ostensibly taking no position on whether the specific proceedings below
involved the unauthorized practice of law, Department of Transportation expresses its
concern that “the state grievance process creates a risk for non-attorney representatives
(continued . . .)
34
the Court has historically refused to issue such sweeping edicts, limiting its holdings to the
precise conduct and forum presented. Further, the breadth of matters which are brought
before the Board of Review and wide-ranging scope of potential conduct confounds any
such attempt at a generalized rule. 21 See Frieson, 168 W. Va. at 767 n.2, 285 S.E.2d at 649
n.2 (detailing difficulty in encapsulating conduct constituting unauthorized practice of law
and recognizing “‘wilderness of single instances’” which commonly results). Our
determination is therefore confined to Mr. Sorrent’s specific conduct in the particular
proceedings and tribunal below.
IV. CONCLUSION
For the foregoing reasons, we find that the Circuit Court of Webster County
committed no error in its conclusion that the administrative proceedings below were based
who engage in the unlawful practice of law” and requests that the Court issue a requirement
that non-lawyers presenting evidence in administrative proceedings “conform to guidelines
similar to the Professional Conduct standards.”
The Court is likewise sensitive to the issues and anecdotal occurrences outlined by
the Department of Transportation’s amicus brief. However, the Court is mindful that the
incidents described therein are not presently before the Court and that any request to
address or cure those perceived ills are beyond the Court’s reach in this matter: “‘Courts
are not constituted for the purpose of making advisory decrees or resolving academic
disputes. The pleadings and evidence must present a claim of legal right asserted by one
party and denied by the other before jurisdiction of a suit may be taken.’” Syl. Pt. 2,
Harshbarger v. Gainer, 184 W. Va. 656, 403 S.E.2d 399 (1991) (citation omitted).
21
We are confident that any adjustment necessary to the manner in which DHHR
utilizes lay representatives in Board of Review proceedings will be thoughtfully and
carefully managed through the close interaction between DHHR and the Office of the
Attorney General, as described during oral argument.
35
upon unlawful procedure occasioned by DHHR’s lay representative engaging in the
unauthorized practice of law. Finding all other matters moot, we affirm the circuit court’s
August 9, 2019, order.
Affirmed.
36