872 N.W.2d 312
N.D.2015Background
- Blume Construction received a Job Service notice (Nov. 8, 2013) assigning a three-year penalty unemployment tax rate and was required to file a written appeal within 15 days.
- An electronic appeal was submitted Nov. 21, 2013 signed by Craig Fidler, a Colorado-licensed attorney not admitted in North Dakota.
- Blume later advised the agency it had retained Fidler; a hearing was scheduled and later continued, and local counsel became involved, but Fidler never moved for pro hac vice admission in North Dakota.
- The Job Service referee concluded a nonresident attorney who appears or signs pleadings in an administrative action must seek pro hac vice admission; because Fidler did not, the appeal was void and the determination final.
- Blume sought agency review and then district-court review; both affirmed the agency decision. Blume also argued estoppel against Job Service; the court rejected that claim.
Issues
| Issue | Blume's Argument | Job Service's Argument | Held |
|---|---|---|---|
| Whether Fidler’s signing and filing of the electronic appeal constituted unauthorized practice of law making the appeal void | Fidler merely completed a standard electronic appeal form (a mechanical act) and therefore was performing work a non-lawyer could do; safe-harbor under Rule 5.5(b)(5) applies | A corporation must act through an attorney; Fidler applied legal skill in stating alleged errors and relief and did not qualify for Rule 5.5(b) safe harbors because he never sought pro hac vice | Filing and signing the appeal by a nonresident attorney without pro hac vice was the practice of law; safe harbors do not apply; appeal voided |
| Whether preparatory-work safe-harbor (Rule 5.5(b)(3)) protects Fidler’s actions | Filing the appeal was preparatory and he reasonably expected pro hac vice admission | The appeal went beyond preparatory work (it stated alleged errors and legal arguments); preparatory exception does not cover filing the appeal | Not preparatory; Rule 5.5(b)(3) inapplicable; pro hac vice was required |
| Whether Job Service is estopped from declaring the appeal void after accepting it | Job Service accepted the appeal and proceeded for months; Blume relied and retained local counsel, so agency should be estopped from later voiding the appeal | Agency lacked actual/constructive knowledge the signer was an out-of-state attorney and had no duty to notify before appeal period expired | Estoppel not established: Blume failed to prove elements (no evidence agency knew the signer was an out-of-state attorney when it accepted the filing) |
Key Cases Cited
- Carlson v. Workforce Safety & Ins., 765 N.W.2d 691 (N.D. 2009) (nonresident attorney’s filing of a request with legal argument for a corporate party is practice of law; safe-harbor exceptions did not apply)
- Wetzel v. Sehlenvogt, 705 N.W.2d 836 (N.D. 2005) (corporations must act through licensed attorneys; non-attorney representation voids filings)
- Blocker Drilling Co., Ltd. v. Conrad, 354 N.W.2d 912 (N.D. 1984) (elements and burdens for estoppel against a party)