May 19, 1976
Mr. Joe Norton
Executive Secretary
Public Utilities Commission
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-56
Appearing before an agency in contested case proceeding constitutes practice of law
Dear Mr. Norton:
In your request for an opinion you state that a non-attorney has been licensed as a Class B practitioner by the Interstate Commerce Commission. He has inquired as to whether he can be afforded the same status before the South Dakota Public Utilities Commission.
The specific question you ask is whether a non-attorney may practice before the PUC.
Whether a non-attorney may appear before the PUC on behalf of another depends upon whether such an appearance constitutes the practice of law. The practice of law, pursuant to SDCL 16-18-1, requires licensing and membership in the State Bar Association. A party violating the requirements is subject to conviction of a misdemeanor. (SDCL 16-18-30.)
The general weight of authority is that the representation of others before a state public utilities or service commission constitutes the practice of law if such appearance is associated with the protection, enforcement, or defense of the legal rights and duties of another. (13 A.L.R. 3d 812.) Stated another way, an appearance constitutes the practice of law if the commission takes action of a judicial or quasi-judicial nature. State ex rel. State Bar of Wisconsin v. Keller, 114 N.W. 2d 796, 116 N.W. 2d 141.
It is my opinion that an administrative proceeding which involves a "contested case" is a judicial proceeding affecting the substantive rights of a party. A contested case is defined in subdivision (2) of SDCL 1-26-1 as:
A proceeding, including but not restricted to rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing but the term shall not include the proceedings relating to rule-making other that rate-making.
Therefore, in all such proceedings, a party representing another would, in my opinion, be engaged in the practice of law. Despite the fact that an administrative agency is not a court of record, the record from a contested case is generally the basis for appeal to the circuit court. An aggrieved party appeals from said record rather than initiating a trial de novo. (SDCL 1-26-30, et seq.)
Unlike many other states, South Dakota has no legislation defining "practice of law." Perhaps a clarification should be attempted in this matter.
In addition, the Supreme Court, pursuant to article V, § 12 and SDCL 16-3, could adopt more definitive rules in this regard.
The answer to your specific question, subject to the conditions herein set forth, is NO.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:LLV:dk
