An attorney suspended from the practice of law could serve as the claimant’s representative at an unemployment referee’s hearing, the Pennsylvania Commonwealth Court decided in Powell v. Unemployment Compensation Bd. of Review, __ A.3d __ (No. 1704 CD 2014, filed Nov. 6, 2015). The claimant in this case, Gary Powell, applied for unemployment compensation benefits after quitting his job for what he alleged were necessitous and compelling reasons. Over the course of several referee hearings, Powell was represented by two attorneys, both of whom were suspended from practicing law in Pennsylvania. The referee disallowed the representations and Powell proceeded pro se. Benefits were denied and Powell appealed to the UCBR. The UCBR affirmed, holding inter alia that the Rules of Disciplinary Enforcement prohibited the suspended attorneys from representing Powell.
On further review, the Commonwealth Court reversed and held that the UCBR erred by preventing the suspended attorneys from representing Powell. Writing for the 2-1 majority, Judge Brobson reiterated that under Section 214 of the Unemployment Compensation Law, 43 P.S. §774, any party appearing before an unemployment referee is entitled to designate the representative of his or her choice – including a suspended attorney, or even a non-attorney because the representation does not constitute the practice of law. See Harkness v. UCBR, 920 A.2d 162 (Pa. 2007). Thus, the Court held that the UCBR erred by depriving Powell of his right to the representation of his choice. The Court acknowledged that Pa. R.D.E. 217(j)(4)(vii) prohibits a suspended attorney from appearing on behalf of a client in a proceeding before a referee. The Court explained, however, that exclusive jurisdiction to enforce the Disciplinary Rules and impose sanctions is vested in the Supreme Court and the Disciplinary Board. Accordingly, while a referee should warn a suspended attorney of the Rule 217 violation, and report the attorney to the Disciplinary Board if he chooses to continue the representation, the referee cannot invoke a Disciplinary Rule to thwart Section 214 of the Law.