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Companies Beware -- Your HR Professional May be Engaged in the Unauthorized Practice of Law

The Kentucky Bar Association (KBA) has taken the position that a non-lawyer who represents a company before the Kentucky Unemployment Insurance Commission (KUIC) is engaged in the unauthorized practice of law. In the KBA's view, only attorneys lawfully may represent a company in such a hearing. Anyone else who engages in such representation (and this includes a company's HR professional, unless he or she happens to be a lawyer) can be fined and can be enjoined from any further practice of law. See Kentucky Bar Ass'n v. Legal Alternatives, Inc .,792 S.W.2d 368 (Ky. 1990). Although the KBA's interpretation is at odds with Kentucky statutory law, which specifically allows non-lawyers to appear at KUIC hearings, its interpretation should nevertheless be given serious consideration for the reasons explained below.

This is not a novel issue. In Kentucky State Bar Assn. v. Henry Vogt Machine Co., 416 S.W.2d 727 (Ky. 1967), the court confirmed that a non-lawyer who attended and participated in a KUIC hearing on behalf of his employer was engaged in the unauthorized practice of law. Similarly, in 1976, the KBA concluded that a layman may not represent a claimant at a hearing before a referee of the KUIC (KBA U-15) (March 1976). The KBA has consistently applied this logic to other areas. For instance, the KBA has concluded that non-attorneys may not practice before a city civil service commission (KBA U-12) (Sept. 1975) and may not practice before the Office of Insurance (KBA U-27) (Oct. 1980). The KBA's interpretation is based on the Kentucky Supreme Court 's Rule 3.020, which provides that "[t]he practice of law is any service rendered involving legal knowledge or legal advice, whether 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 service..."

Subsequent to the KBA's 1976 opinion letter, the Kentucky Legislature amended the Labor Code to provide that "[any] employer in any proceeding before a referee or the commission may represent himself or may be represented by counsel or other agent duly authorized by such employer." KRS 341.470(3)(a). Since that amendment, it has widely been accepted that a non-attorney may represent his or her company before the KUIC and many companies have proceeded accordingly. The KBA, however, believes the legislature lacked the constitutional authority to amend KRS 341.470(3)(a).

While we disagree with the KBA's position and would welcome the opportunity to challenge it in a court of law, the KBA's apparent interest in prohibiting employers from representing themselves before the KUIC presents some immediate concerns for employers. Unless and until the courts decide whether the KBA has authority to declare such self-representation the unauthorized practice of law, we cannot recommend that any company allow a non-lawyer to represent it before the KUIC. Moreover, engaging in such activity clearly would put the individual HR professional in the KBA's cross hairs.

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group. Click here for a complete roster.

This communication is provided as general information rather than legal advice. Questions about individual situations should be addressed to the attorney of your choice. The regulations governing legal advertising in the states of Kentucky, Ohio and Tennessee require that communications of this kind contain the following statement: THIS IS AN ADVERTISEMENT. Kentucky law does not certify specialties of practice.

About Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC is a widely-respected business law firm with approximately 200 legal professionals in six offices, serving local, national and international clients in virtually every industry. A forward-thinking business law firm, Greenebaum is committed to the practice of Breakthrough Law®. For more information, visit

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