The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6787 February 10, 1994 CORPORATIONS: Appearance on behalf of a corporation before the Michigan Underground Storage Tank Financial Assurance Policy Board Corporate staff attorneys, not licensed to practice law in Michigan, are not engaged in the unauthorized practice of law when they appear before the Michigan Underground Storage Tank Financial Assurance Policy Board. Honorable Paul Wartner State Senator The Capitol Lansing, Michigan You have asked a question which may be phrased as follows: Whether corporate staff attorneys, not licensed to practice law in Michigan, are engaged in the unauthorized practice of law when they appear before the Michigan Underground Storage Tank Financial Assurance (MUSTFA) Policy Board? The MUSTFA Policy Board hears claims pursuant to section 18(1) of the Michigan Underground Storage Tank Financial Assurance Act, 1988 PA 518, MCL 299.801 et seq; MSA 13.29(201) et seq, which provides: (1) If the administrator denies a claim or work invoice, or request for indemnification, the owner or operator who submitted the claim, work invoice, or request for indemnification may, within 14 days following the denial, request review by the board. Upon review by the board, the administrator shall approve the claim, work invoice, or request for indemnification if the board determines upon review that the claim, work invoice, or request for indemnification substantially complies with the requirements of this act. However, the board shall not approve a claim, work invoice, or request for indemnification for a release that was discovered prior to July 18, 1989. These claims are submitted by owners or operators of underground storage tank systems who are seeking funds under the statute for corrective action or indemnification. The power to determine who may represent parties in proceedings before administrative agencies is reposed in the Legislature, not the courts. In State Bar of Mich v Galloway 124 MichApp 271; 335 NW2d 475 (1983), aff'd on other grounds, 422 Mich 188; 369 NW2d 839 (1985), the Court of Appeals stated: [W]hile the inherent power of the courts is paramount as to matters relating to the administration of judicial functions (i.e., regulation of the practice of law in courts), the same is not true in other areas of the practice of law. The holdings in several cases suggest that the supreme inherent power of the judiciary does not extend beyond legal practice in the courts. Administrative agencies such as the MESC are created by the Legislature pursuant to its power to delegate nonlegislative functions to such agencies. Const1963, art 4, Sec. 1. We do not believe the judiciary has the inherent power to assert ultimate authority over the practice of law in proceedings before the MESC. An attempted exercise of such authority would violate the separation of powers doctrine. Const1963, art 3, Sec. 2. However wise or unwise the Legislature's decision to allow employers to be represented by nonattorney agents before the MESC, the Court may not disturb that decision. 124 MichApp at pp 280, 282-283. In Galloway, supra, the Supreme Court considered the statutes prohibiting the unauthorized practice of law by individuals, MCL 600.916; MSA 27A.916, and corporations, MCL 450.681; MSA 21.311. Nevertheless, the Supreme Court affirmed the Court of Appeals decision that the plain language of section 31 of the Michigan Employment Security Act, MCL 421.31; MSA 17.533, authorized nonattorneys to represent employers in administrative hearings under that statute. 422 Mich at 197. In enacting the Administrative Procedures Act of 1969, MCL 24.201 et seq; MSA 3.560(101) et seq, the Legislature did not choose to include any provision requiring that a person must be licensed as an attorney in order to represent a party before an administrative agency in a contested case. (1) Nor is any such requirement contained in the MUSTFA Act itself. Historically, by administrative rule, many administrative agencies of state government have allowed nonattorneys to represent parties in proceedings before the agencies. Some agencies have required, by administrative rule, that parties may only be represented by themselves or by attorneys. (2) In light of this statutory pattern and historical practice, it must be concluded that the statutes prohibiting the unauthorized practice of law by individuals, MCL 600.916; MSA 27A.916, and corporations, MCL 450.681; MSA 21.311, do not apply to appearances on behalf of claimants before the MUSTFA Policy Board. Rather, the controlling provisions are the specific MUSTFA Act and the administrative practices implementing that statute. The consistent administrative practice before the MUSTFA Policy Board has been that claimants need not be represented by lawyers in presenting claims under section 18(1) of the MUSTFA Act. (3) The Policy Board has permitted claimants to be represented by themselves, family members, friends, environmental consultants, and designated company representatives, as well as by attorneys. The construction of a statute by the agency that administers the statute is entitled to respectful consideration and will not be overruled by the courts without cogent reasons. Oakland Bd of Education v Superintendent of Public Instruction 401 Mich 37, 41; 257 NW2d 73 (1977). It is my opinion, therefore, that corporate staff attorneys, not licensed to practice law in Michigan, are not engaged in the unauthorized practice of law when they appear before the Michigan Underground Storage Tank Financial Assurance Policy Board. Frank J. Kelley Attorney General (1 Congress, in passing the federal Administrative Procedures Act, declined to restrict the right to practice before administrative agencies to lawyers)
(2 See Attachment 1 in the Brief for Amicus Curiae Attorney General, dated May 25, 1984, filed in the Michigan Supreme Court in Galloway, supra)
(3 Administrative rules implementing the MUSTFA Act are presently being drafted and will soon be considered at a public hearing)
See section 22a of that statute.