Parties Beware: Your Qualified Representative in an Administrative Proceeding Might Not Be Qualified to Represent You If You Decide to Pursue an Appeal
Florida’s Administrative Procedure Act[1] allows parties to be represented by qualified representatives, who are not members of The Florida Bar, in administrative proceedings. However, once the matter is appealed to a district court of appeal (DCA), a qualified representative may no longer be permitted to continue with his or her representation. In this article, I explain the dichotomy between administrative law and appellate law as it pertains to qualified representatives and opine as to whether such a dichotomy should continue to exist in light of access to justice issues currently affecting our state.
Why Qualified Representatives Can Participate in Administrative Proceedings
“The Administrative Procedure Act was designed to foster easy access to administrative determinations in contested proceedings.”[2] The design includes allowing parties to have qualified representatives represent them in administrative proceedings.[3] A party seeking to be represented by a qualified representative must first “file a written request with the presiding officer[[4]] as soon as practicable.”[5] The presiding officer must then make a determination whether the person named by the party is capable of representing the party as a qualified representative.[6] The presiding officer’s determination involves consideration of the person’s 1) knowledge of jurisdiction; 2) knowledge of the Florida Rules of Civil Procedure relating to discovery in an administrative proceeding; 3) knowledge regarding the rules of evidence, including the concept of hearsay in an administrative proceeding; 4) knowledge regarding the factual and legal issues involved in the proceeding; and 5) knowledge of and compliance with the Standards of Conduct for Qualified Representatives that are found in F.A.C.R. 28-106.107.[7]
Based on the rule criteria that presiding officers use to determine whether someone should be a qualified representative, it would seem that qualified representatives are engaging in the unlicensed practice of law. Indeed, they are. However, the Florida Supreme Court found that qualified representatives in administrative proceedings can engage in the unlicensed practice of law without consequence. In The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980), the court found “the draftsmen of the 1974 revision of chapter 120 clearly intended to increase flexibility and informality in the administrative process by expanding public access to agency rationale and action, consistent always, however, with minimal administrative due process rights for those whose rights are affected by agency action.”[8] Thus, the legislature had created the concept of qualified representatives. In doing so, it “oust[ed] the [c]ourt’s responsibility in proceedings before agencies, and…could convert [the unauthorized practice of law] into authorized representation.”[9] Therefore, the Supreme Court lacks jurisdiction to regulate the practice of qualified representatives in administrative proceedings.
Why Qualified Representatives Cannot Participate in Appellate Proceedings
When an administrative matter is appealed to a DCA, the scope of a qualified representative’s representation often comes to an abrupt end. This author has seen cases n which a DCA will enter an order rejecting pleadings filed by a qualified representative, and mandating the party either proceed on their own (if an individual) or retain a Florida-licensed attorney to represent them in the matter. Why? Simply put, once an administrative matter is appealed to a DCA, it falls under the jurisdiction of the judicial branch, which has the authority to make its own rules of practice and procedure before the courts.[10] The Florida Rules of Judicial Administration allows parties to be represented only by Florida-licensed attorneys, foreign attorneys who meet certain criteria, and eligible law students.[11] The Florida Rules of Judicial Administration apply to appellate proceedings as well, unless there is an express conflict with the Florida Rules of Appellate Procedure,[12] and there is nothing in the Florida Rules of Appellate Procedure that allows parties to be represented by qualified representatives (other than foreign attorneys).
Appellate courts have expressly prohibited officers or employees of a corporation from representing the corporation in an appellate proceeding. This is because “[a] corporation, unlike an individual, may not appear in court ‘in proper person’ and represent itself…. Thus, any pleading purporting to be signed by [a] corporate officer is a nullity and has no effect.”[13] This principle holds true even if the officer or employee of a corporation was a qualified representative in the administrative proceeding below. For example, in Magnolias Nursing and Convalescent Center v. Department of Health and Rehabilitative Services, 428 So. 2d 256 (Fla. 1st DCA 1982), the court noted that, while the non-attorney individual who represented the corporation in the underlying administrative proceeding was allowed to do so under F.S. Ch. 120, the individual could not continue to represent the corporation on appeal. Accordingly, the court gave the appellant a fixed period of time to have an attorney appear on its behalf, or it would dismiss the appeal.[14]
Other nonlawyer qualified representatives who appear on behalf of a party in an administrative proceeding are also prohibited from continuing their representation once the matter has been appealed. For example, in Forman v. State Department of Children & Families, 956 So. 2d 476 (Fla. 4th DCA 2007), the Fourth DCA prohibited the daughter of a party from filing a brief in an administrative appeal stemming from a final order denying Medicaid benefits. The court did so even though the daughter claimed she had the right to represent the party on appeal because of a power of attorney. The court found that the daughter’s “power of attorney to act on her mother’s behalf authorizes her to act as her mother’s agent, not as her mother’s attorney at law.”[15] It went on to cite Florida’s common law rule that pleadings filed by a nonlawyer on behalf of another are a nullity, as stated in the case of Torrey v. Leesburg Regional Medical Center, 769 So. 2d 1040 (Fla. 2000). Nevertheless, the court gave the appellant 30 days in which to 1) file an amended brief signed by the appellant; 2) secure the representation of an attorney who would file an amended brief; or 3) file proof that the daughter was an attorney licensed to practice law in Florida.[16]
Should Appellate Courts Allow Qualified Representatives to Represent Parties in an Appeal?
Unrepresented parties are a common occurrence in administrative proceedings. According to one source, the percentage of cases heard each fiscal year by the Division of Administrative Hearings (DOAH) where at least one party is unrepresented ranges from 30% to over 60%, depending on whether child support matters are included in the denominator.[17] It would not be too far afield to speculate that the majority of such pro se parties do not prevail in their cases at hearing. While there are no statistics available to quantify the success rates of parties who are represented by a qualified representative, this author believes it would be notably higher than that of pro se parties if such statistics were available.
However, administrative law and appellate law are two different animals. The knowledge requirements an individual must possess in order to be granted status as a qualified representative do not include knowledge of the appeals process or the Florida Rules of Appellate Procedure. But is that enough to justify prohibiting qualified representatives (except for foreign attorneys) from appearing on behalf of parties in an administrative appeal? After all, if a presiding officer determines an individual has the requisite knowledge of jurisdiction, the Florida Rules of Civil Procedure, and the rules of evidence,[18] then why cannot that same individual learn and grasp the appellate process? Are qualified representatives a key to closing the access to justice gap when it comes to appeals?
Unfortunately, those questions cannot be answered at this point because it is clear that qualified representatives become involved in the unlicensed practice of law when they cross over from the administrative process to the appellate process, since appeals fall under the jurisdiction of the judicial branch. Until and unless the Florida Supreme Court considers creating an exception that allows for qualified representatives to continue representing parties in an administrative proceeding at the appellate level, the dichotomy will continue to exist, and parties who cannot afford to retain Florida-licensed attorneys will have to proceed with their appeals by themselves.
Conclusion
Qualified representatives are a concept unique to administrative law. The concept was created to help parties attain access to justice without incurring the expense of hiring a Florida-licensed attorney. However, for the foreseeable future, the concept will continue to be strictly confined to the administrative arena, leaving parties who appeal an administrative matter to a DCA with the choice of either proceeding on their own or incurring the costs of hiring a Florida-licensed attorney to represent them.
[1] Fla. Stat. Ch. 120. All statutory references in this article are to the 2019 version of the Florida Statutes.
[2] Suzanne Van Wyk, Closing the Justice Gap: Qualified Representatives? 38 Admin. L. Section Newsletter at 20 (Mar. 2017).
[3] See Fla. Stat. §120.57(1)(b) (emphasis added) (“All parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders, to file exceptions to the presiding officer’s recommended order, and to be represented by counsel or other qualified representative.”)
[4] F.A.C.R. 28-106.102 defines “presiding officer” as “an agency head, or member thereof, who conducts a hearing or proceeding on behalf of the agency, an administrative law judge assigned by the Division of Administrative Hearings, or any other person authorized by law to conduct administrative hearings or proceedings who is qualified to resolve the legal issues and procedural questions which may arise.”
[5] F.A.C.R. 28-106.106(2)(a).
[6] F.A.C.R. 28-106.106(2)(b)-(c).
[7] F.A.C.R. 28-106.106(4).
[8] Moses, 380 So. 2d at 415.
[9] Id. at 418.
[10] See Fla. Const. art. V, §2(a) (“The supreme court shall adopt rules for the practice and procedure in all courts….”).
[11] See F.A.C.R. 2.505 and 2.510.
[12] See Fla. R. App. P. 9.010.
[13] Daytona Migi Corp. v. Daytona Auto. Fiberglass Inc., 417 So. 2d 272, 274 (Fla. 5th DCA 1982).
[14] Magnolias Nursing & Convalescent Ctr., 428 So. 2d at 258.
[15] Forman, 956 So. 2d at 477.
[16] Id.
[17] Suzanne Van Wyk, Closing the Justice Gap: Qualified Representatives? 38 Admin. L. Section Newsletter at 20 (Mar. 2017).
[18] See F.A.C.R. 28-106.106(4).
Richard J. Shoop is the agency clerk for the Agency for Health Care Administration. He attended the University of Miami, obtaining a B.A. in history with general honors in 1996 and a J.D. in 1999. He began his legal career at the Quincy office of Legal Services of North Florida, Inc. In 2001, Shoop joined the State of Florida, first with the Agency for Health Care Administration and then with the Department of Health as a prosecuting attorney for the Boards of Medicine, Osteopathic Medicine, and Psychology. Shoop has been a member of the Administrative Law Section’s Executive Council since 2009, and is a past chair of the section.
This column is submitted on behalf of the Administrative Law Section, Brian A. Newman, chair, and Lyyli Van Whittle, editor.
