The AG’s Opposition to Lay Representation in ALJ Cases: Bad Law, Bad Policy

By Michael Asimow

Michael Asimow is a Visiting Professor of Law, Stanford Law School, and Professor of Law Emeritus, UCLA School of Law. Mr. Asimow is co-author of the Rutter Group California Practice Guide—Administrative Law and was a consultant to the California Law Revision Commission’s 1995 amendments to the adjudication provisions of the Administrative Procedure Act. He also served as consultant to the Administrative Conference of the United States in its 2016 project to adopt best practices for evidentiary hearings outside the Administrative Procedure Act.

Lay representation refers to representation of a client by a non-lawyer or by a lawyer not admitted to practice in California. Lay representation is common and well accepted in both California and federal administrative law.

In Opinion No. 14-101,¹ the California Attorney General ruled that lay representation is not permitted in California administrative adjudications heard by administrative law judges (ALJs) employed by the Office of Administrative Hearings (OAH). Opinion 14-101 is wrong and should be ignored by ALJs in cases in which a private party wishes to be represented by a non-lawyer or by a lawyer not admitted in California. If an ALJ refuses to allow lay representation in reliance on the AG’s opinion, the resulting agency decision should be judicially challenged.²