[J-114-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

GARY H. POWELL

v.

UNEMPLOYMENT COMPENSATION 

BOARD OF REVIEW 

JOE KRENTZMAN & SONS, INC.,

Intervenor

APPEAL OF: UNEMPLOYMENT 

COMPENSATION BOARD OF REVIEW

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No. 38 MAP 2016

Appeal from the Order of the 

Commonwealth Court at No. 1704 CD 

2014 dated November 6, 2015 Vacating 

& Remanding the Order of the UCBR at 

No. B-13-09-D-B064 dated August 13, 

2014.

SUBMITTED: September 14, 2016

OPINION

JUSTICE DOUGHERTY DECIDED: March 28, 2017

We granted discretionary review to consider whether an attorney who has been 

suspended from the practice of law by this Court may represent a claimant in 

unemployment compensation proceedings. A divided three-judge panel of the 

Commonwealth Court determined the claimant is entitled to his choice of representative, 

even if that representative is a suspended attorney, and remanded for a new hearing. 

We affirm the decision to remand, but reverse the Commonwealth Court’s holding that a 

suspended attorney may represent claimants in unemployment compensation 

proceedings. 
[J-114-2016] - 2

This case arises from the unemployment compensation claim filed by appellee 

Gary H. Powell.1 The Unemployment Compensation Service Center determined 

appellee was ineligible to receive benefits pursuant to Section 402(b) of the 

Unemployment Compensation Law (the UC Law) because he voluntarily quit his job 

with Joe Krentzman & Sons (employer), without “cause of a necessitous and compelling 

nature.” See 43 P.S. §802(b) (employee ineligible for compensation when 

unemployment is due to voluntarily leaving work without cause of necessitous and 

compelling nature). Appellee challenged the finding and referee Brian L. Parr 

scheduled a hearing to review appellee’s claim. Appellee arrived at the hearing on 

December 5, 2013, with Donald A. Bailey, who stated he was present as appellee’s pro 

bono advocate. Bailey admitted he was suspended from practicing law, by order of this 

Court dated October 2, 2013, for a period of five years.2 Original Record (O.R.) at Item 

12, Notes of Testimony (N.T.) 12/5/13 at 1. Referee Parr allowed Bailey to participate in 

 

1

 Appellee Powell is pro se in this appeal.

2

 The Court’s order stated, in relevant part: 

AND NOW, this 2nd day of October, 2013, upon consideration of the 

Report and Recommendations of the Disciplinary Board dated May 1, 

2013...it is hereby ORDERED that Donald A. Bailey is suspended from 

the Bar of this Commonwealth for a period of five years and he shall 

comply with all the provisions of Rule 217, Pa.R.D.E.

Office of Disciplinary Counsel v. Bailey, No. 1760 DD3, 2013 Pa. LEXIS 2269 (Pa. Oct. 

2, 2013) (per curiam). Bailey’s suspension was based on violations of Pennsylvania 

Rule of Professional Conduct (Pa.R.P.C.) 4.1(a) (lawyer shall not knowingly make a 

false statement of material fact or law), Pa.R.P.C. 8.2(a) (lawyer shall not make a 

statement that he knows to be false or with reckless disregard for its truth or falsity), and 

Pa.R.P.C. 8.4(c) (lawyer shall not engage in conduct involving fraud, dishonesty, deceit 

or misrepresentation). Report and Recommendations of the Disciplinary Board of the 

Supreme Court of Pennsylvania at 16, http://www.padisciplinaryboard.org/look-up/paattorney-search.php (last visited on December 7, 2016).
[J-114-2016] - 3

the hearing, which proceeded until Parr continued the matter to allow service of 

subpoenas on necessary fact witnesses. 

Prior to further proceedings on appellee’s claim, however, employer, which had 

been previously acting pro se, obtained counsel. Employer’s counsel promptly objected 

to Bailey’s participation, asserting Pennsylvania Rule of Disciplinary Enforcement 

217(j)(4)(vii), Pa.R.D.E. 217(j)(4)(vii), prohibits a suspended attorney from appearing in 

any hearing or proceeding before a referee.3 Bailey was given the opportunity to rebut 

employer’s argument that Disciplinary Enforcement Rule 217 prohibited his participation 

and he did so by letter, directing employer’s attorney to review the language of the 

notice of hearing sent to each party, which expressly advised appellee he could 

“represent [him]self or [he] may be represented by an attorney or any other advocate of 

[his] choice.” O.R. at Items 7, 14. See also Section 214 of the UC Law, 43 P.S. §774 

(“Any party in any proceeding under this act before the department, a referee or the 

board may be represented by an attorney or other representative.”).

After consulting with Unemployment Compensation Board of Review (UCBR) 

counsel, newly assigned referee Susan G. Hess, by letter dated February 6, 2014, 

informed Bailey he would not be allowed to represent appellee and directed Bailey to 

notify appellee he could engage other representation. O.R. at Item 22. Referee Hess 

then conducted further proceedings on March 26, 2014, which appellee attended with 

Andrew J. Ostrowski. Referee Hess determined through questioning that Ostrowski’s 

 

3 Disciplinary Enforcement Rule 217 provides, in relevant part, “a formerly admitted 

attorney is specifically prohibited from engaging in any of the following 

activities:...appearing on behalf of a client in any hearing or proceeding or before any 

judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing 

officer or any other adjudicative person or body.” Pa.R.D.E. 217(j)(4)(vii). The term 

“formerly admitted attorney” expressly includes suspended or administratively 

suspended attorneys. Pa.R.D.E. 102(a).
[J-114-2016] - 4

attorney license had also been suspended.4 O.R. at Item 30, N.T. 3/26/14 at 1. 

Referee Hess then gave Ostrowski the opportunity to argue why Disciplinary 

Enforcement Rule 217 did not preclude his participation in the hearing, id., N.T. at 1-2, 

and ultimately concluded Ostrowski would be permitted only to observe the 

proceedings. Appellee thereafter represented himself, and following the hearing, 

Referee Hess determined appellee was ineligible to receive benefits. 

On appeal, the UCBR affirmed the denial of benefits and also concluded the 

referee properly excluded Bailey and Ostrowski from representing appellee. The UCBR 

opined Referee Hess had correctly addressed the representation issue by notifying 

Bailey and the parties that appellee was not permitted to have a suspended attorney as 

a representative at the continued hearing. UCBR Decision at 3. The UCBR concluded 

Disciplinary Enforcement Rule 217(j)(4)(vii) barred Ostrowski from participating in the 

 

4

 This Court’s order stated, in relevant part:

AND NOW, this 9th day of February, 2010, upon consideration of 

the Report and Recommendations of the Disciplinary Board dated October 

30, 2009...it is hereby ORDERED that Andrew J. Ostrowski is suspended 

from the Bar of this Commonwealth for a period of one year and one day 

and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

Office of Disciplinary Counsel v. Ostrowski, No. 1556 DD3, 2010 Pa. LEXIS 114 (Pa. 

Feb. 9, 2010) (per curiam). Ostrowski’s suspension was based on violations of 

Pa.R.P.C. 1.1 (lawyer shall provide competent representation to a client), Pa.R.P.C. 1.3 

(lawyer shall act with reasonable diligence and promptness in representing a client), 

Pa.R.P.C. 1.15(a) and (b) (safekeeping of property), and Disciplinary Enforcement Rule 

217(e) (formerly admitted attorney shall file verified statement with this Court showing 

compliance with Rule 217). Report and Recommendations of the Disciplinary Board of 

the Supreme Court of Pennsylvania at 11-12, http://www.padisciplinaryboard.org/lookup/pa-attorney-search.php (last visited on December 7, 2016). At the time of the 

hearing, Ostrowski was eligible to seek reinstatement to the practice of law by this 

Court. However, at that time, Ostrowski had not been reinstated by this Court, and thus 

remained suspended from the Bar. See Pa.R.D.E. 218(a)(1) (attorney, who was 

suspended for more than one year, may not resume practice until reinstatement by 

order of the Supreme Court).
[J-114-2016] - 5

hearing, appellee had a sufficient opportunity to find proper legal or non-legal 

representation, and appellee received a full and fair hearing, with the opportunity to 

testify and submit evidence and cross-examine the employer’s witnesses. Id.

Appellee filed a pro se petition for review in the Commonwealth Court and 

employer intervened. A divided panel of the Commonwealth Court vacated the UCBR’s 

ruling and remanded the matter for a new hearing. Powell v. UCBR, 128 A.3d 315 (Pa. 

Cmwlth. 2015).5 The majority analyzed the interplay between Section 214 of the UC 

Law, the reasoning of the Opinion Announcing the Judgment of the Court (OAJC) in 

Harkness v. UCBR, 920 A.2d 162 (Pa. 2007),6and Disciplinary Enforcement Rule 217. 

The Commonwealth Court acknowledged Disciplinary Enforcement Rule 217 

specifically prohibits formerly admitted or suspended attorneys — such as Bailey and 

Ostrowski — from “appearing on behalf of a client in any hearing or proceeding or 

before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, 

hearing officer or any other adjudicative person or body.” Powell, 128 A.3d at 320, 

quoting Pa.R.D.E. 217(j)(4)(vii) (emphasis omitted). The court also recognized Section 

214 of the UC Law allows a party in unemployment compensation proceedings to be 

represented by “an attorney or other representative,” including non-attorneys. The court 

then noted that, in Harkness, the OAJC concluded representation of a party before a 

 

5

 Judge Brobson authored the majority opinion and was joined by Judge McCullough. 

Judge McGinley dissented without opinion. Prior to issuing its final decision, the 

Commonwealth Court issued an earlier order and opinion, Powell v. UCBR, 1704 C.D. 

2014, 2015 Pa. Commw. LEXIS 398 (Pa. Cmwlth. Sept. 17, 2015), but withdrew it upon 

motion for reconsideration, Powell v. UCBR, No. 1704 C.D. 2014, 2015 Pa. Commw. 

LEXIS 484 (Pa. Cmwlth. Nov. 6, 2015), and on the same day substituted the opinion 

found at 128 A.3d 315.

6

 The Harkness OAJC was authored by Chief Justice Cappy, and joined by Justice 

Baer. Justice Saylor concurred in the result only, without opinion. Justice Eakin wrote a 

dissenting opinion, which was joined by Justice Castille. Former Justices Nigro and 

Newman did not participate. 
[J-114-2016] - 6

unemployment compensation referee does not constitute the practice of law because 

such proceedings are “largely routine and primarily focused on creating a factual basis, 

or record, by which the referee can render a decision” and the nature of the proceedings 

is remedial and designed to be brief and informal. Powell, 128 A.3d at 320, quoting 

Harkness, 920 A.2d at 166, 168-69 (OAJC). 

The Commonwealth Court concluded the UCBR improperly precluded 

suspended attorneys Bailey and Ostrowski from representing appellee because Section 

214 of the UC Law gives a party the statutory right to choose his representative before 

an unemployment compensation referee, and under Harkness such representation does 

not constitute the practice of law. Powell, 128 A.3d at 320. The court rejected the 

UCBR’s reliance upon the Disciplinary Enforcement Rules for its contrary decision 

because, in its view, enforcement of the Disciplinary Enforcement Rules falls within the 

exclusive authority of the Pennsylvania Supreme Court and the Disciplinary Board. Id.

at 321, citing Pa.R.D.E. 201(a) (exclusive disciplinary jurisdiction of Supreme Court and 

Disciplinary Board under these rules extends to attorney admitted to practice law in 

Commonwealth and formerly admitted attorney). The court acknowledged this Court 

previously held a suspended attorney in contempt for violation of Disciplinary 

Enforcement Rule 217(j) for representing claimants in unemployment proceedings. 

Powell, 128 A.3d at 321, citing In the Matter of David Louis Bargeron, No. 1073 DD3, 

2011 Pa. LEXIS 1695, at *1 (Pa. July 27, 2011) (per curiam) (holding suspended 

attorney in contempt of Rule 217(j) and ordering attorney to immediately cease and 

desist from all activities in connection with representation of claimants and employers in 

unemployment compensation proceedings and comply with all provisions of Rule 217). 

The Commonwealth Court nevertheless concluded it was more consistent with Section 

214 of the UC Law and Disciplinary Enforcement Rule 217(j) for the referee to allow a 
[J-114-2016] - 7

suspended attorney to participate, advise him that his continued representation could 

subject him to sanctions for violation of Disciplinary Enforcement Rule 217, and report 

the attorney to the Disciplinary Board for further action as in Bargeron. Powell, 128 

A.3d at 321.

The UCBR filed a petition for allowance of appeal, and we granted review of the 

following question: “Should a Commonwealth agency be required to allow a suspended 

attorney to represent a party in its hearings and proceedings?” Powell v. UCBR (Joe 

Krentzman & Sons, Inc.), 134 A.3d 448 (Pa. 2016). 

The UCBR asserts the Commonwealth Court’s decision undermines the attorney 

disciplinary system created to protect legal consumers from persons found unqualified 

to serve as attorneys. The UCBR argues the Commonwealth Court ignored the plain 

language of Section 214 of the UC Law which authorizes representation by either an 

“attorney” or “other representative” and Bailey and Ostrowski fall in neither category as 

they are “formerly admitted attorneys.” UCBR Brief at 12-13. In the UCBR’s view, the 

court’s reliance on Harkness is misplaced because the two-Justice OAJC addressed 

representation by non-attorneys, but did not account for “formerly admitted attorneys” 

who have been suspended and therefore are prohibited by the Disciplinary Enforcement 

Rules from appearing before a referee. According to the UCBR, the Disciplinary 

Enforcement Rules do not simply govern the practice of law, but also the conduct of 

attorneys and formerly admitted attorneys. Id. at 13-14, citing Pa.R.D.E. 201(a) 

(exclusive jurisdiction of Supreme Court and Disciplinary Board extends to any formerly 

admitted attorney whose actions constitute violation of Disciplinary Enforcement Rules). 

The UCBR argues this Court — through disciplinary proceedings — determined Bailey 

and Ostrowski were unqualified to represent clients when they purported to represent 

appellee, and the ruling below subverts this determination. 
[J-114-2016] - 8

In addition, the UCBR rejects the Commonwealth Court’s conclusion that 

Referee Hess, by precluding Bailey and Ostrowski from representing appellee, was 

improperly prosecuting and enforcing the Disciplinary Enforcement Rules. The UCBR 

argues instead the referee was simply honoring this Court’s suspension orders. The 

UCBR contends this Court’s disciplinary authority will be undermined if an agency 

allows a suspended attorney to violate the Disciplinary Enforcement Rules by appearing 

before the agency as a party’s representative. The UCBR further argues the 

Commonwealth Court’s decision frustrates the public protection aspects of those Rules. 

The UCBR asserts the process outlined by the Commonwealth Court involving an afterthe-fact complaint to the Disciplinary Board about a suspended attorney’s participation 

in agency proceedings does not undo or mitigate harm that may have occurred to the 

parties or to the timeliness and accuracy of the unemployment compensation 

adjudicative process. The UCBR posits allowing representation of a party by a 

suspended attorney creates potential error in agency proceedings and undermines the 

finality of agency decisions. 

The Office of Disciplinary Counsel (ODC) filed an amicus curiae brief in support 

of the UCBR’s position. The ODC argues the UCBR is authorized to prohibit 

suspended attorneys from representing clients in unemployment compensation 

proceedings and the UCBR did not invade this Court’s jurisdiction in affirming the 

referee’s decision to do so here. The ODC notes suspended attorneys are qualitatively 

different from non-lawyer representatives who may otherwise appear before agencies 

on behalf of claimants — suspended attorneys are not only prohibited from the practice 

of law, but also from conducting other law-related activities. Amicus Brief at 19-20, 

citing Pa.R.D.E. 217(j)(4)(vii) (formerly admitted attorney prohibited from appearing 

before administrative referees or boards). According to the ODC, the distinction 
[J-114-2016] - 9

between suspended attorneys and non-lawyer representatives is based not on legal 

ability, a characteristic rendered immaterial by the Harkness plurality’s conclusion that 

proceedings before the UCBR do not constitute the practice of law, but on the basis of 

the lack of ethical fitness to act as an advocate. The ODC argues the UCBR properly 

exercised its authority pursuant to Section 503 of the Administrative Agency Law, which 

provides an “agency may, upon hearing and good cause shown, preclude any person 

from practice before it.” See 2 Pa.C.S. §503. The ODC posits the Commonwealth 

Court’s decision actually contravenes this Court’s authority by permitting a suspended 

attorney to ignore the Court’s suspension orders. Further, the Commonwealth Court’s 

decision places referees in an ethical quandary because allowing a suspended attorney 

to violate Disciplinary Enforcement Rule 217 may be seen as assisting in a violation of 

the Rules of Professional Conduct, which itself may be professional misconduct. 

Amicus Brief at 22-23, citing Pa.R.P.C. 8.4 (professional misconduct includes engaging 

in conduct prejudicial to administration of justice). The ODC also contends the 

Commonwealth Court’s analysis is faulty based upon an overly broad interpretation of 

the term “enforce,” as used in the court’s theory the referee and UCBR overstepped 

their bounds by “enforcing” the Court’s order. The ODC asserts a referee’s refusal to 

participate in or to allow a violation of the law does not amount to unauthorized 

“enforcement” of this Court’s order. 

Appellee argues the UCBR was without jurisdiction to deny him his right to the 

representative of his choice and by doing so violated his rights under Pennsylvania law, 

the Pennsylvania Constitution and the First, Seventh and Fourteenth Amendments to 

the United States Constitution. Appellee argues pursuant to Harkness and Bargeron he 

was entitled to be represented by Bailey and Ostrowski and that the referee had no right 

to determine who “any other representative was.” Appellee’s Brief at 7, 9. Appellee 
[J-114-2016] - 10

asserts the referee’s decision left him unable to “defend” himself or “present his case” 

and “denied [him] a lawful hearing.” Id. at 4, 7. Appellee summarily alleges the UCBR 

violated his rights to equal protection and substantive due process by denying him the 

representation of his choice. He further “objects to the unconstitutional nature of the 

vaguely and in-artfully composed” Disciplinary Enforcement Rules and the 

unconstitutional way those rules were applied to him by the UCBR, which did not have 

the authority to deny him “the representation of ‘other representatives’ such as Mr. 

Bailey and Mr. Ostrowski.” Id. at 10.

As the issue before us involves a pure question of law, our standard of review is 

de novo and our scope of review is plenary. Harkness, 920 A.2d at 166 n.2, citing 

Buffalo Twp. v. Jones, 813 A.2d 659, 664 n.4 (Pa. 2002). Our careful review reveals 

the Commonwealth Court erred in reversing the UCBR and directing it to allow 

individuals who have been suspended from the practice of law to participate in 

unemployment compensation proceedings on behalf of a claimant. We consider 

suspended attorneys to be different from non-lawyer representatives who are 

authorized to participate in unemployment compensation matters pursuant to Section 

214 of the UC Law. Instead, suspended attorneys are individuals who have actually 

been sanctioned by this Court for violations of the Rules of Professional Conduct and 

now are “formerly admitted attorneys” who are expressly prohibited from appearing on 

behalf of a client “in any hearing or proceeding” pursuant to Disciplinary Enforcement 

Rule 217(j)(4)(vii). Suspended attorneys may therefore not act as the non-lawyer 

representatives referred to in Section 214. We reject appellee’s claim he has a 

constitutional right to be represented by suspended attorneys who have been 

specifically precluded by this Court’s rules from acting as his representative. 
[J-114-2016] - 11

The Pennsylvania Constitution vests this Court with the authority to regulate the 

practice of law. PA. CONST. art. V, §10(c) (“The Supreme Court shall have the power to 

prescribe general rules governing practice, procedure and the conduct of all 

courts,...including the power to provide for...admission to the bar and to practice 

law....”). Pursuant to its authority, “this Court has adopted Rules of Professional 

Conduct and Rules of Disciplinary Enforcement, which govern the conduct and 

discipline of attorneys.” Commonwealth v. Stern, 701 A.2d 568, 571 (Pa. 1997); see 

also Pa.R.D.E. 103 (“The Supreme Court declares that it has inherent and exclusive 

power to supervise the conduct of attorneys who are its officers (which power is 

reasserted in Section 10(c) of Article V of the Constitution of Pennsylvania) and in 

furtherance thereof promulgates these rules.”). 

We first review this Court’s OAJC in Harkness, on which the Commonwealth 

Court relied but which we conclude is inapposite. In Harkness, the employer was 

represented in unemployment compensation proceedings by a tax consultant who was 

not — and never was — an attorney. The referee allowed the representation over the 

claimant’s objection, and the UCBR affirmed on appeal. The en banc Commonwealth 

Court reversed, determining it was error to allow a non-attorney tax consultant to 

represent the employer. Harkness v. UCBR, 867 A.2d 728 (Pa. Cmwlth. 2005) (en 

banc), rev’d by Harkness v. UCBR, 920 A.2d 162 (Pa. 2007). The court ruled the 

employer’s tax consultant was improperly engaging in the practice of law because he 

conducted cross-examination of witnesses, made decisions regarding evidentiary 

matters and offered closing legal arguments; the court found such practice by a nonlawyer was prohibited by Shortz v. Farrell, 193 A. 20 (Pa. 1933),7

and the UC Law, as 

 

7

 In Shortz, this Court held an insurance adjuster who prepared and filed pleadings, 

appeared at hearings before referees, examined and cross-examined witnesses and in 

(continued...)
[J-114-2016] - 12

well as regulations promulgated pursuant to the UC Law. Harkness, 867 A.2d at 731, 

citing 43 P.S. §862 (limiting fees charged by counsel or other duly authorized agent

representing individuals); 34 Pa. Code §101.41 (approval of counsel fees for individuals 

represented by counsel or authorized agent). Notably, the court examined Section 702 

of the UC Law, 43 P.S. §862, which addresses limitations on fees sought by a 

claimant’s counsel or duly authorized agents, and concluded because Section 702 

addressed only fees for a claimant’s counsel or agent, the UC Law did not authorize 

non-lawyer representation for employers. Id. at 732 n.6. Thus, the Commonwealth 

Court held only a claimant — and not an employer — could be represented by a nonlawyer in unemployment compensation proceedings. Id. at 731-32. 

This Court granted allocatur to consider “whether a non-employee, non-lawyer 

may represent an employer in unemployment compensation proceedings.” Harkness, 

920 A.2d at 166 (OAJC). A plurality reversed the Commonwealth Court, with two 

justices reasoning that a non-attorney representing an employer in unemployment 

compensation proceedings does not constitute the unauthorized practice of law, and 

otherwise does not violate the relevant UC Law provisions. Id. at 169 (OAJC). First, 

the Harkness OAJC states the character of the activities performed in unemployment 

compensation proceedings, together with the informal nature of those proceedings, the 

minimal monetary amounts at issue and the long history of non-lawyer representative 

participation suggested the public did not need the protection that serves as the basis 

for classifying certain activities as the practice of law. Id. at 168. Second, the OAJC 

notes the wording of other provisions of the UC Law demonstrates both employers and 

claimants may be represented by non-lawyers. Id. at 170-71, citing 43 P.S. §822 

 

(...continued)

general conducted litigation in workmen's compensation cases was engaged in the 

unauthorized practice of law. Shortz, 193 A. at 21.
[J-114-2016] - 13

(parties and their attorneys or other representatives of record shall be notified of time

and place of hearing and referee’s decision).8

The legal conclusions expressed in the Harkness OAJC in no way alter our 

analysis of the issue before us because that case is distinguishable on its facts. 

Harkness involved a non-lawyer tax consultant and the case revolved, in substantial 

part, around the distinction between who may represent claimants and who may 

represent employers. Moreover, the critical question regarding which party may engage 

a non-lawyer representative in unemployment compensation proceedings was 

definitively resolved by the General Assembly after the hearing in that case, and while 

the matter was on appeal. See 43 P.S. §774 (“Any party in any proceeding under this 

act before the department, a referee or the board may be represented by an attorney or 

other representative.”); see also Harkness, 920 A.2d at 171 (Eakin, J., dissenting, joined 

by Castille, J.).

In any event, notwithstanding the statements in the Harkness OAJC regarding 

non-lawyer representatives and the nature of unemployment compensation 

proceedings, as well as Justice Todd’s similar statements in dissent regarding “nonattorneys,” it is clear suspended attorneys like Bailey and Ostrowski are in a different 

class from “non-lawyer representatives” who may appear on behalf of any party in 

unemployment compensation proceedings. Suspended attorneys are “formerly 

 

8

The dissent opined the tax representative was engaged in the unlawful practice of law 

under Shortz. Harkness, 920 A.2d at 171 (Eakin, J., dissenting, joined by Castille, J.). 

The dissent also observed that, following the underlying unemployment compensation 

hearing, the General Assembly enacted Section 214 of the UC Law, expressly allowing 

any party to be represented by “an attorney or other representative.” In the dissent’s 

view, the “other representative” language encompasses a corporate officer or member 

of the employer’s own staff, but does not include a non-employee representative 

because allowing such representation would infringe on this Court’s authority to regulate 

the practice of law, including defining the practice of law. Id. at 172.
[J-114-2016] - 14

admitted attorneys” who remain subject to the Disciplinary Enforcement Rules and the 

terms of this Court’s orders relating to their suspensions. Specifically, the suspension 

orders in this case provided Bailey and Ostrowski “shall comply with all the provisions of 

Rule 217, Pa.R.D.E.” Bailey, 2013 Pa. LEXIS 2269, at *1; Ostrowski, 2010 Pa. LEXIS 

114, at *1. Rule 217 expressly prohibits these attorneys from “appearing on behalf of a 

client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, 

court, public agency, referee, magistrate, hearing officer or any other adjudicative 

person or body.” Pa.R.D.E. 217(j)(4)(vi). The Commonwealth Court’s conclusion that 

the unemployment compensation referee and the UCBR could not apply the terms of 

Rule 217 and this Court’s suspension orders in its tribunals was error. 

Our decision is informed by an understanding that the purpose of the attorney 

disciplinary process, including proceedings which may result in this Court’s issuance of 

suspension or disbarment orders, is to determine whether an attorney is fit to act as an 

advocate in legal and law-related activities and proceedings. See Office of Disciplinary 

Counsel v. Campbell, 345 A.2d 616, 620 (Pa. 1975) (purpose of disciplinary 

proceedings is not punishment, but rather to determine fitness of officer of the court to 

continue in that capacity). Moreover, orders of suspension or disbarment are designed 

to protect the public from attorneys who have been deemed unfit and to maintain the 

public’s regard for a profession imbued with its trust. Id. The reports and 

recommendations returned to this Court by the Disciplinary Board in both Bailey’s and 

Ostrowski’s disciplinary proceedings recommended suspension in order to accomplish 

these salutary objectives. Moreover, the Court’s orders specifically directed Bailey and 

Ostrowski to comply with the provisions of Disciplinary Enforcement Rule 217 while they 

remained suspended. Bailey, 2013 Pa. LEXIS 2269, at *1; Ostrowski, 2010 Pa. LEXIS 
[J-114-2016] - 15

114, at *1.9 Consequently, this Court determined Bailey and Ostrowski were unfit at all 

relevant times to appear on behalf of an individual “in any hearing or proceeding or 

before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, 

hearing officer or any other adjudicative person or body.” Pa.R.D.E. 217(j)(4)(vi). 

We also conclude the referee and UCBR did not infringe upon this Court’s 

jurisdiction over attorney discipline as argued by appellee. Indeed, in precluding 

participation by suspended attorneys, the lower tribunals were actually recognizing and 

upholding the force and effect of this Court’s orders with regard to the two attorneys’ 

suspended status.10 Cf. Slater v. Rimar, Inc., 338 A.2d 584, 589 (Pa. 1975) (although 

breaches of Rules of Professional Conduct may be subject of disciplinary action, trial 

courts need not await such proceedings, but may restrain improper conduct pursuant to 

court’s inherent power to control pending proceedings and a duty to supervise conduct 

 

9 Because the suspension orders are enforceable specifically against them as 

individuals, it was incumbent upon Bailey and Ostrowski as formerly admitted attorneys 

to decline the opportunity to represent appellee. See, e.g., Pa.R.D.E. 217(a) (formerly 

admitted attorney must notify clients of suspension status and advise clients to seek 

legal advice elsewhere); Pa.R.D.E. 217(b) (formerly admitted attorney must notify 

clients involved in pending administrative proceedings of suspension); Pa.R.D.E. 

217(c)(3) (formerly admitted attorney must give notice of suspension to “any other 

tribunal, court, agency or jurisdiction in which attorney is admitted to practice”); 

Pa.R.D.E. 217(e)(1) (formerly admitted attorney must file with Secretary of the 

Disciplinary Board verified statement of compliance with Pa.R.D.E. 217). This duty is 

distinct and separate from appellee’s statutory right to select a representative. 43 P.S. 

§774.

10

 The dissent notes the UCBR as an executive agency is not bound by this Court’s 

suspension orders. Dissenting Slip Op. (Todd, J. dissenting) at 6-7. There is no 

dispute, however, that formerly admitted attorneys appearing before the Board are 

surely bound by this Court’s suspension orders. See, e.g., Pa.R.D.E. 217(j) (formerly 

admitted attorney may not engage in any form of law-related activities in the 

Commonwealth except in limited circumstances). Accordingly, the UCBR correctly gave 

due deference to this Court’s conclusion the suspended attorneys were unfit to 

represent clients in any hearing or proceeding or before a referee or any other 

adjudicative person or body. 
[J-114-2016] - 16

of lawyers appearing before court).11 Moreover, the referee’s decision to preclude 

participation by the suspended attorneys is supported by separate statutory authority. 

See, e.g., 2 Pa.C.S. §503 (“Any Commonwealth agency may, upon hearing and good 

cause shown, preclude any person from practice before it.”). The Commonwealth 

Court’s suggested alternative method of confronting the problem of suspended 

attorneys appearing in agency proceedings — allowing participation but referring the 

attorney to the Disciplinary Board — does not mitigate the harm to the party, and 

actually undermines the timeliness and finality of the UC adjudicative process, where a 

party might later have reason to object to the award based on participation of an 

ethically or otherwise compromised attorney. See, e.g., 34 Pa. Code §101.104(c)(2) 

(pursuant to Section 504 of UC Law, 43 P.S. §824, UCBR, in its discretion, may remand 

to referee to take additional evidence if “[i]t appears that there may have been a denial 

of a fair hearing under the rules”). Cf. Johnson v. WCAB, 321 A.2d 728, 730 (Pa. 

Cmwlth. 1974) (proof that claimant’s counsel was incompetent might constitute good 

cause to allow rehearing). 

With regard to appellee’s constitutional argument the referee and the UCBR 

violated his rights to equal protection and substantive due process by denying him the 

representative of his choice, we note neither the United States Constitution nor the 

Pennsylvania Constitution guarantees the right to representation in civil proceedings, 

 

11 We recognize unemployment compensation referees are not imbued with the same 

powers as a trial court, but they are nevertheless authorized to regulate the course of 

hearings and to take other action necessary or appropriate to the discharge of the 

duties vested in them. See 1 Pa. Code §35.187(1), (10) (“Presiding officers...shall have 

the authority, within the powers and subject to the regulations of the agency,” to 

regulate the course of hearings and to “...take other action necessary or appropriate to 

the discharge of the duties vested in them, consistent with the statutory or other 

authorities under which the agency functions and with the regulations and policies of the 

agency.”).
[J-114-2016] - 17

although such right is guaranteed in criminal proceedings. See, e.g., U.S. CONST. 

Amend. 6 (“In all criminal prosecutions, the accused shall enjoy the right...to have the 

Assistance of Counsel for his defence.”); PA. CONST. Art. I, §9 (“In all criminal 

prosecutions the accused hath a right to be heard by himself and his counsel...”). To 

the extent the United States Supreme Court suggested in Powell v. Alabama, 287 U.S. 

45 (1932), albeit in dicta, that a court’s refusal to hear a party’s representative in a civil 

case could constitute a denial of due process, the High Court conditioned its statement 

on the court’s refusal being “arbitrary,” which is clearly not the case here. Id. at 69 (“If in 

any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a 

party by counsel, employed by and appearing for him, it reasonably may not be doubted 

that such a refusal would be a denial of a hearing, and, therefore, of due process in the 

constitutional sense.”). Even in the context of criminal proceedings, this Court has 

opined “the right to be represented by counsel of one’s own choice is not absolute, 

however. The right to counsel may be impaired or eliminated by state regulation which 

is designed to provide for overriding state interest....” Commonwealth v. Hess, 617 

A.2d 307, 314 (Pa. 1992). Thus, a party’s right to a representative or counsel of choice 

may be circumscribed where necessary, particularly in a case like this one, which is 

expressly encompassed by the restrictions of this Court’s suspension order and 

Disciplinary Enforcement Rule 217. Appellee has provided no applicable support for his 

claim of constitutional entitlement, and in light of this Court’s clear authority to establish 

standards for the conduct of attorneys in order to protect the public from unfit advocates 

and thereby maintain the public’s confidence in the legal system, we conclude appellee 

is not entitled to be represented by a suspended or disbarred attorney in unemployment 

compensation proceedings.
[J-114-2016] - 18

Accordingly, we affirm the Commonwealth Court’s decision to remand for further 

proceedings, but reverse its holding a suspended attorney may represent claimants in 

unemployment compensation proceedings. The matter is remanded for further 

proceedings consistent with this opinion, including a hearing before an unemployment 

compensation referee during which appellee may choose to proceed pro se or with 

qualified representation.12

Affirmed in part and reversed in part. Jurisdiction relinquished.

Chief Justice Saylor and Justices Donohue, Wecht and Mundy join the opinion.

Justice Baer files a concurring and dissenting opinion.

Justice Todd files a dissenting opinion.

 

12

 We recognize Justice Baer would not allow appellee another opportunity to obtain 

eligible representation at a new hearing. The position has facial appeal. However, we 

note the legal landscape before today’s decision included Harkness, supra, where this 

Court held — in a different context — that representation of individuals in 

unemployment compensation hearings did not constitute the practice of law, and may 

have been read to support appellee’s decision to hire suspended attorneys. As the 

question regarding suspended attorneys has now been squarely presented and 

addressed for the first time in this case, we consider a remand the proper course.