Employment Law Report
Kentucky Supreme Court’s Decision Clarifies the Kentucky’s Unauthorized Practice of Law Doctrine
By: Alexa J. Elder
On March 24, 2022, the Kentucky Supreme Court held that a non-lawyer does not engage in the unauthorized practice of law by requesting an administrative hearing on behalf of a corporate entity. The decision, Cabinet for Health & Fam. Servs. v. Appalachian Hospice Care, Inc., provides important clarification pertaining to the unauthorized practice of law doctrine in Kentucky. No. 2021-SC-0082-DG, 2022 WL 883017, at *1 (Ky. Mar. 24, 2022).
The dispute in Appalachian Hospice Care, began in 2017 when the Cabinet of Health and Family Services (the “Cabinet”) informed Appalachian Hospice (“Appalachian”) that it had been overpaid over $100,000 for Medicaid services. Appalachian disagreed with the overpayment amount and Appalachian’s CEO, Sharon Branham (“Branham”), a non-attorney, sent a two-sentence letter to the Cabinet requesting the dispute be resolved at an administrative hearing. Shortly thereafter, an order scheduling the administrative action was entered. However, prior to the hearing, the Cabinet asserted that Branham’s request for an administrative hearing on Appalachian’s behalf constituted the unauthorized practice of law and moved for dismissal. In response, Appalachian argued that the mere penning of a letter requesting an administrative hearing did not constitute the unauthorized practice of law. Accepting the Cabinet’s position, the Secretary dismissed the administrative action.
Appalachian appealed and the Franklin Circuit Court reversed the Secretary’s decision, concluding that Branham’s request was not equivalent to the practice of law. The Cabinet appealed the unfavorable ruling and the Kentucky Court of Appeals affirmed. The Kentucky Supreme Court granted discretionary review to resolve the single question of whether or not a non-attorney’s request for an administrative hearing on behalf of his/her corporate employer constituted the unauthorized practice of law. Ultimately, the court concluded, it does not.
SCR5 3.020 defines the practice of law as “any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services.” Performing such services by “non-lawyers” for “others” represents the unauthorized practice of law.
For example, in another recent decision, Nichols v. Kentucky Unemployment Ins. Comm’n, the Kentucky Court of Appeals observed the “well-established” principle that representation of a corporate or non-natural entity by a non-attorney during an unemployment hearing implicates the unauthorized practice of law. No. 2017-CA-1156-MR, 2022 WL 67403 (Ky. App. Jan. 7, 2022). Indeed, such conduct is strictly forbidden as it involves representation or advocacy on behalf of another party and thus constitutes the “practice of law” under Kentucky rules and precedent.
Appalachian Hospice Care recognized this limitation, noting that acting as a legal representative before an adjudicatory tribunal, in addition to other conduct, including but not limited to filing a forcible detainer action and questioning witnesses, constitutes the practice of law because it requires the filing of court documents and/or a specialized knowledge of the law and/or legal procedures. On the other hand, however, the Court explained that the mere crafting of a simple, two-sentence letter requesting an administrative appeal does not meet this threshold. Specifically, the Court noted that Branham’s request for an administrative hearing did not require she possess any specialized legal knowledge and certainly no legal rights were being adjudicated at that stage of the proceedings. According to the Court, “anyone with a modicum of intelligence and the ability to read and write could have responded to the directives contained in the Cabinet’s letters regarding appeal rights from an unfavorable decision. No specific form or format was required, nor was compliance with the civil rules.” Thus, the Court concluded, Branham did not engage in the unauthorized practice of law.
This holding confirms that a non-attorney’s mere request for an administrative hearing on its employer’s behalf does not constitute the unauthorized practice of law, and provides additional guidance pertaining doctrine. However, employers should still be aware that non-attorney representation at adjudicatory hearings remains prohibited under the ruling. Readers can review the full decision by clicking here.