Attorney General Opines On Lay Representation At Administrative Hearings

Over three years ago, I wrote that California's Office of Administrative Hearings had requested the California Attorney General provide an opinion answering the following question:

Does the Administrative Procedure Act (Gov. Code, §§ 11340-11529) authorize a party to a proceeding conducted by the Office of Administrative Hearings to be represented by a person who is not an active member of the California State Bar?

A few days ago, the Attorney General finally issued his opinion:

We conclude that the Administrative Procedure Act does not, in itself, authorize a party to be represented in an administrative hearing by a person who is not an active member of the California State Bar.

On the very same day, the Third District Court of Appeal rejected a smog testing facility's challenge to a citation on the grounds that its due process rights were violated when it was represented at an administrative hearing by a non-lawyer.  Davis Test Only Smog Testing v. Dept. of Consumer Affairs, 2017 Cal. App. LEXIS 855.  While not saying so directly, the Court seemed to view the testing facility's argument to be like that of a child who murders her parents and then seeks clemency on the grounds that she is an orphan.

Citing Benninghoff v. Superior Court, 136 Cal.App.4th 61 (2006), the Court acknowledged that representing a party in an administrative hearing constitutes the practice of law, but pointed out:

The conclusion that representing a party in an administrative hearing is the practice of law does not provide a conclusive answer on the issue presented in this case because, in some instances in administrative proceedings, a layperson may practice law. (See, for example, administrative proceedings in which a layperson may represent a party: Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 770 [190 Cal. Rptr. 919, 661 P.2d 1073] [welfare hearings]; Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 913–914 [160 Cal. Rptr. 124, 603 P.2d 41] [Public Utilities Commission hearings]; Bland v. Reed (1968) 261 Cal.App.2d 445, 449 [67 Cal. Rptr. 859].

Note that the Attorney General's opinion makes a distinction between lay representation in formal administrative proceedings governed by Chapter 5 of the Administrative Procedure Act and proceedings governed only by Chapter 4.5.  According to the Attorney General,

The Legislature appears to have left the decision whether to permit lay representation to the discretion of each administrative agency wherever the agency is given discretion to tailor its own procedures. But no discretion is afforded in those cases where Chapter 5 formal procedures are required.

Footnote omitted.