The Proper Scope of Nonlawyer Representation in State Administrative Proceedings: A State Specific Balancing Approach
Administrative adjudication has become an essential aspect of the American system of government as the need for dispute resolution outside the courtroom increases. To foster alternative dispute resolution, the authorization of nonlawyers to appear as representatives in administrative proceedings presents a viable response to increasing litigation costs and a burdened court system. Accordingly, the federal administrative system, through broad enabling statutes, allows individual agencies to prescribe the proper scope of nonlawyer representation of clients during agency proceedings. The individual states, however,have not adopted such a uniform approach. The inability of the individual states to establish an adequate regulatory system largely can be traced to separation of powers concerns regarding the proper regulatory body to govern representation in quasi-judicial proceedings before state administrative agencies. The failure of states to prescribe guidelines for nonlawyer representation presents significant due process concerns and may result in inconsistent ad hoc determinations. To prevent potential unauthorized practice of law violations, the individual states, in accordance with each particular state's regulatory scheme, should clarify the proper scope of nonlawyer representation before the state administrative system.
In 1988 the Tennessee General Assembly granted its State Board of Equalization (the "Board"), a legislatively created administrative agency,' the power to certify persons to appear as official representatives during agency proceedings. The Tennessee legislation, House Bill 1482, allows nonlawyers who meet specified criteria to serve as counsel for clients in a quasi-judicial setting.6 Although House Bill 1482 is consistent with Tennessee's longstanding tradition of allowing nonlawyer representation before other state administrative agencies, the statute, in prescribing standards to govern nonlawyer representation before the Board, seems inconsistent with existing Tennessee law." Furthermore,the Tennessee legislature's express assertion of regulatory power over representation before state agencies may implicate due process concerns caused by inadequate representation and infringe upon the Tennessee Supreme Court's inherent power to regulate the practice of law.