Non-Lawyer representation in arbitration?

Although the right to legal representation in arbitration is well-settled, the use of non-lawyers to represent disputants in the arbitral process is not.

In Florida, non-lawyers representing parties in securities arbitrations are deemed to be engaged in the unauthorized practice of law. See Florida Bar Advisory Opinion on Non-lawyer Representation in Securities Arbitration, 696 So.2d 1178, 22 Fla.L.Weekly S388 (date). Securities arbitration may present a special case. The Florida court specifically noting that the opinion did not address the “propriety of non-lawyer representation in any other form of arbitration.” Id. Apparently, the drafters of the revised Uniform Arbitration Act thought so also. The drafters considered adding “or any other person” after “attorney” in the section providing for representation in arbitration; however, they expressed particular concern over the possibility that “incompetent and unscrupulous individuals, especially in securities arbitration,” would hold themselves out in arbitration. ULA ARB §16, Comment 2 (2000) (emphasis added). Nevertheless, the drafters purposely avoided prohibiting non-lawyer representation by noting that §16 “is not intended to preclude, where authorized by law, representation in an arbitration proceeding by individuals who are not licensed to practice law.” Id.
State law governs the unauthorized practice of law. Because the “practice of law” is defined very broadly in Georgia, representation in arbitration could easily fall into the definition. See OCGA §15-19-50; see also discussion §15:6 infra. Nevertheless, neither federal nor state arbitration law empowers a court to intervene in an arbitration when a non-lawyer is representing a party, nor is non-lawyer representation is a ground to vacate an award. In addition, there is no authority to support discipline for lawyers serving as arbitrators or representatives of other parties in such arbitrations. Arguably, the “freedom to contract” rationale that underlies so much of the pro-arbitration trend in case law, particularly at the federal level, supports the parties’ choice of representation. After all, they need not select lawyers as arbitrators. In some instances, federal law may actually preempt state limitations on representation. See, e.g., 36 USCA §220529(b)(4) (allowing parties in certain sports arbitrations to be represented by an attorney “or by any other authorized representative”(emphasis added)).
Finally, judicial deference to arbitration custom would favor non-lawyer representation in many traditional arbitration settings in which legal issues are secondary, e.g., factual and technical disputes in construction or commodities association trading, or where arbitration is part of a religious or cultural identity, e.g., Bet Din arbitration in Jewish communities. EM/DY

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One response

  1. Non-lawyer should be allowed to represent consumers at arbitration proceedings if these non-lawyer can pass some sort of proficiency exam that certifies them as capable and competant representatives in arbitration hearing forums. This is just one way consumers can be aided in disputes that end up in arbitration forums rather than the courts.

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