State SC to decide if suspended attorneys can handle unemployment matters

By Jamie Kelly | Jun 10, 2016

HARRISBURG — A long-running case about whether a suspended attorney can represent someone during an unemployment compensation appeal is headed toward a final resolution with the state Supreme Court agreeing to take the case.

The case centers around whether the Unemployment Compensation Review Board was justified in refusing to allow Don Bailey, a Harrisburg-area lawyer whose license to practice was suspended for five years in 2013, and Andrew Ostrowski, another suspended attorney, to represent Gary Powell in a 2013 appeal of a denial of unemployment compensation.

In November, a Commonwealth Court ruling remanded the case back to the board, saying that someone doesn’t have to be a lawyer in order to be a representative at such a hearing.

Zachary Zawarski, an attorney who handles unemployment appeals, said that in Pennsylvania, hearings before a UCRB referee are administrative hearings and don’t require a law license in order to represent a claimant.

“In unemployment cases, claimants are allowed to have a non-legal adviser represent them,” he told the Pennsylvania Record. “It's not a requirement that the person representing the claimant be a licensed attorney.”

In a May filing, the UCRB argues that while that is the case, because attorneys are only suspended for cause, the commonwealth has a special interest in protecting the public from them, and that they should be barred from representing claimants. Powell has a deadline of June 27 to file a response, and a hearing date has not yet been set.

In cases in which someone is seeking unemployment compensation, the process starts with an application, and then the claimant receives a letter accepting or denying the claim, Zawarski said.

“I represent a lot of individuals at the referee hearing level,” he said.

“When a client sees me, they've typically received a denial of their unemployment claim in the mail, and they're informed they have 15 days to file an appeal. If I feel that there's a valid case and that they should be entitled to unemployment benefits, we submit the appeal, and the case will be scheduled three or four weeks later, where the claimant will be able to present their case as to why they should be entitled to unemployment benefits.”

Zawarski, who was not involved in the Powell case, said the referee hearings aren’t held in an actual courtroom, but that they resemble a court hearing in many ways.

“They generally follow the typical courtroom procedure, where the party with the burden of proof would testify first,” he said.

“After they testify, the other party would have the ability to ask them questions on cross-examination. Once they rest their case, the other party would provide their direct testimony in the matter, and once they're finished with that, the first party has the opportunity to cross examine them.

"Referees often allow the legal representative or the representative from the employer make a closing statement at the end of the hearing. Hearings also follow the rules of evidence, so a party has the opportunity to make objections to certain things, for example, hearsay.”

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