Bench & Bar

JAN 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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45 BENCH & BAR | Issued: July 2017 Amended November 17, 2017 K E N T U C K Y B A R A S S O C I A T I O N Unauthorized Practice of Law Opinion U-65 e Board of Governors of the Kentucky Bar Association orig- inally adopted U-65 as a formal unauthorized practice opinion at its meeting in July 2017 under the provisions of Kentucky Supreme Court Rule (SCR) 3.530. U-65 was then published in the September/October issue of the Bench & Bar, as required by SCR 3.530(11). Since that publication, the Unauthorized Practice Committee of the Kentucky Bar Association became aware of a necessary amendment relating to Endnote 1. e Board adopted that amendment at its meeting on Nov. 17, 2017, and the amended version of U-65 is published below. Note that SCR 3.530 provides in part: "Both informal and formal opinions shall be advisory only." QUESTION: May an insurance or claims adjuster, who is an employee of a Worker's Compensation insurer, its third-party administrator or a self-insured employer, complete and file on behalf of the insured a Form 110-Settlement Agreement with the Department of Workers' Claims? ANSWER: No. REFERENCES: KRS 342.265(1); KRS 304.9-070; KRS 304.9- 430; 806 KAR 9:030; SCR 3.020; KBA U-3; KBA U-4; KBA U-12; KBA U-15; KBA U-17; KBA U-27; KBA U-37; KBA U-45; KBA U-48; KBA U-52; KBA U-56; KBA U-57; KBA U-61; KBA U-64; Winkenhofer v. Chaney, Ky., 369 S.W.2d 113 (1963); Kentucky State Bar Assn. v. Henry Vogt Machine Co., Ky., 416 S.W.2d 727 (1967); Kentucky State Bar Association v. Lakes, Ky., 443 S.W.2d 248 (1969) OPINION e question has been raised as to whether a non-attorney employee of a Worker's Compensation insurer or another similarly situated entity may prepare forms required for the settlement of a Work- er's Compensation claim. ere is ample authority in Kentucky jurisprudence supporting the conclusion that such an action, when engaged in by a non-attorney, constitutes the unauthorized practice of law in this jurisdiction. I. It is well established that the representation of parties before Kentucky administrative agencies constitutes the practice of law in Kentucky. e practice of law is defined in SCR 3.020 as follows: [A]ny 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. It has been well established in Kentucky that representation of parties before an administrative agency falls under the definition of SCR 3.020. is issue was specifically addressed in relation to the Kentucky Department of Workers' Claims in KBA U-64 and in KBA U-52: The KBA, in Opinion U-52, addressed these issues in part when presented with the question of whether or not a non-lawyer may represent parties before the Kentucky Department of Workers' Claims. e opinion held that non-attorneys may not represent parties before the agency because "[r]epresentation of parties before administrative agencies is the practice of law, as it necessarily involves legal advice, counsel and advocacy." Also, U-52, summarizing previous related opinions, stated: Non-lawyers have been prohibited from representing cor- porations and individuals before the Kentucky Department of Transportation (Opinion KBA U-3); before a city civil service commission (Opinion KBA U-12); before the Ken- tucky Unemployment Insurance Commission (Opinion KBA U-15); before the Kentucky Board of Tax Appeals (Opinion KBA U-17) and in quasi-adjudicative proceed- ings before zoning boards and zoning authorities (Opinion KBA U-43) See also Kentucky State Bar Assn. v. Henry Vogt Machine Co., Ky., 416 S.W.2d 727 (1967). is position is consistent with numerous other KBA Opinions which indicate that dealing with legal claims pending before administrative bodies falls within the purview of SCR 3.020, with- out significant exception. 1 II. e practice of law is implicit in the initiation, prepa- ration, and settlement of administrative claims, and can extend to the preparation of standard forms if said preparation implies the application of skills set forth in SCR 3.020. e practice of law is not limited to the actual appearance of a party at the formal litigation of claims (or e.g., the deposition of witnesses, the filing of petitions and motions before adjudicative bodies), but may extend into preparation, negotiation, evaluation, and extrajudi- cial settlement of legal issues (even if those functions appear to be perfunctory or ministerial) if carrying out those functions requires "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." See SCR 3.020. B&B MARKETPLACE UNAUTHORIZED PRACTICE

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