MENU for SUCCESS: Government agency red tape often requires administrative hearings to sort out. But lawyers who think the looser rules of the process serve up easier work are likely

MENU for SUCCESS: Government agency red tape often requires administrative hearings tosort out. But lawyers who think the looser rules of the process serve up easier work arelikely to be in for a surpriseAuthor(s): JILL SCHACHNER CHANENSource: ABA Journal, Vol. 84, No. 10 (OCTOBER 1998), pp. 48-53Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840461 .

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LAW PRACTICE ? CLE credit is available from this article and the companion teleconference

How to participate In call-In CLE Through aba Connection programs of the aba Journal, aba Center for cle, and aba Membership Department

What it is The article starting on this page is the basis for a

live cl? program by telephone conference call at 1 p.m. (edt) Oct. 21, at no additional cost to aba members. The aba has requested mcle credit in states that approve a telephone format.

To participate Read "Menu for Success" and on Oct. 21 listen to

the 1-hour program from any Touch-Tone phone in the 50 states or D.C.

To register By telephone: Call the

aba at (800) 285-2221 from 8:30 a.m. to 6:30 p.m. (edt) weekdays, beginning Sept. 21. You will be asked for the membership number from your membership card or Journal mailing label. For state mcle credit, you will need to have your state law license number available. Only one registration can be accepted per caller.

On the Internet: Go to www.abanet.org/cle/connection.html and follow the directions.

Multiple participants in an office who don't need mcle credit should register under one name and listen by speak erphone to free up connections for other aba members.

After registering You will receive by fax an unpublished, toll-free

telephone number to call for the program, a Personal Identification Number to access it, a certificate of attendance and an evaluation form.

On the program date Call the toll-free number a few minutes before

1 p.m. (edt) Oct. 21, and enter your pin. After the program, return the evaluation form.

CLE credit States that accept a telephone format are Ala., Ariz.,

Ark., Calif., Colo., Fla., Idaho, Iowa, Ky., Mo., Mont., Nev., N.H., N.M., N.C., Okla., Ore., R.I., Tenn., Texas, Vt., Va.,

Wash., W.Va., Wis. and Wyo.

Some limitations The aba Connection test project is subject to

modification or discontinuation. Each program is limited to 1,000 phone connections. Registrations for future programs are not accepted. -a?a members may pay $110 per program, if space is available. Only aba Connection programs are available at no cost to members. Other aba-cle programs may require fees.

Next month from ABA Connection Dealing with a friendlier irs.

ABA Connection programs for self-study This month's program and previous ones are available on audiotape. Some programs also are available through aba-cle On Demand, a telephone audio library accessible 24 hours-a-day. For information and costs, call the aba Service Center at (800) 285-2221.

This program Begins at 1 p.m. (edt) Oct 21 and looks at areas of administrative law and the pitfalls lawyers face without informed advice and the right practice skills.

Program co-sponsors Administrative Law and Regulatory Practice; State and Local Government Law sections.

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Government agency red tape often requires administrative hearings to sort out. But

lawyers who think the looser rules of the

process serve up easier work are

likely to be in for a surprise.

ILLUSTRATIONS BY MIKE DAMMER

m. BY JILL SCHACHNER CHANEN t is the kind of matter that hardly any lawyer would con sider unusual: A client has just purchased a piece of land in a rapidly developing area of the city on which to build

a restaurant and bar overlooking the adjacent waterfront. The client asks you to handle the entire deal, and you quick ly agree.

But as the project progresses, it becomes apparent that this is no ordinary deal The land is in the middle of

O a former manufacturing corridor and is still zoned for in dustrial uses. To make matters worse, the city is rationing liquor licenses, and the area where your client wants to open his business has reached its quota.

Matters for the courts to decide? Not really. More like ly, the road to resolution will lead through the fields of ad

ministrative law, a realm that to many lawyers may seem a bit strange and somewhat out of kilter. It is a territory

where rules similar to those of the courtroom are applied but with enough of a twist to leave uninitiated practi

tioners a little dizzy. Encountering the often quirky and occasionally

political ways of government agencies that control zoning, environmental permits and liquor licenses is enough to make some lawyers throw up their hands in frustration. They then refer those matters, as well as workers' compensation, immigration, Social Secu rity and so on, to colleagues with more specialized experience in dealing with such agencies.

Much of the trepidation about administrative law practice stems from the way government con

ducts business. From applying for a government benefit to defending a client in a regulatory enforce

ment action, agencies operate in a manner that is un

Jill Schachner Chanen is a lawyer and writer in Chicago. Her e-mail address is JillChanen@aol. com.

ABA JOURNAL / OCTOBER 1998 49



familiar to many lawyer?. "Administrative law is a whole

different panoply of activity with great similarity to a lot of judicial proceedings but with a lot of differ ences," says Warren Belmar of Pul bright & Jaworski in Washington, D.C., the immediate-past chair of the aba Section of Administrative Law and Regulatory Practice.

But these differences need not be permanently indecipherable. The terrain will seem less foreign once practitioners gain some under standing of the laws, policies and procedures associated with admin istrative agencies.

"The main mistake lawyers make is that they think that be cause a hearing is administrative, it will just be a little thing and they can handle it,* says Ann Young, an administrative law judge in Nash ville, Tenn., who is vice chair of the State Practice and Procedures Com mittee of the National Conference of Administrative Law Judges in the aba Judicial Division

"They will often find out that

they are sadly mistaken. They need to educate themselves."

And practitioners may have little choice but to become more fa

miliar with administrative law. By all indications, and despite promis es by elected officials to shrink gov ernment bureaucracy at all levels, it continues to expand.

For practitioners, this means an increasing likelihood of encoun

tering administrative issues and proceedings, often in conjunction with the kind of work they already are doing.

"There is no way to avoid it," says Ronald Cass, dean of Boston University School of Law and in

coming chair of the administrative law section. "The government has become such a pervasive regulator of so many areas of the economy."

At every level, government enacts legislation creating pro

grams, benefits and pol

50 ABA JOURNAL / OCTOBER 1998

dates of these statutes. Administra tive law, says Cass, is the civil pro cedure that agencies establish to tell people how to obtain benefits, participate in programs, defend themselves against charges of vio

lating rules and regulations, and seek government authorization to engage in certain activities.

A key element in the appar ent complexity of administrative law is the fact that procedures dif fer drastically from agency to agency. There is, however, some

uniformity to federal agency prac tice under the Administrative Prac tice Act. Many states and local gov ernments have similar acts to

help agencies establish rules, regulations and procedures.

A hallmark of adminis- nr trative proceedings is infor- I ?**

mality. Lawyers say it is not {/ uncommon to bypass estab-

* ;

lished procedures and nego tiate directly with regulators to secure the necessary ben efits or permits for their iy clients. In hearings, lawyers | often are constrained only ( V| minimally by rules of evi- # J dence or procedure. ; ?j As a result, adminis- ?M trative proceedings ip| often are more akin :M to pretrial settle- uFj

Those hearings can still be highly adversarial, even if the parties do not necessarily have to present their cases in accordance with strict procedural rules.

And for every instance of infor mality, there are examples of strict rules and regulations that, if not

complied with, can irreparably damage a client's case.

"A lawyer has no idea what to expect without looking into the par ticular rules and practices of a par ticular agency or of an administra tive law judge the lawyer may be appearing in front of," says Young.

Consider everything a lawyer



could encounter?from zoning to business permits to employee in juries to immigration to retire ment?in something so simple as a restaurant.

The Rlflht Zone The restaurants and bars opening in

that old warehouse and manufacturing area are already making it a "hot" entertainment district. To get in on the action, though, will take a zoning change for land with a very limited industrial use and a dynamite water view.

?lmost every lawyer who has handled a real estate transaction

has encountered ques tions regarding land use, be it confirming a use under an exist ing zoning ordinance, changing the zoning on a parcel of land or

obtaining the right for a homeowner to en

large the house past setback lines.

Virtually all of these issues bring the lawyer into contact

with a government agency regulating land use, which in most states is found at the

municipal or county level.

A lawyer can per form a variety of func

^ tions in dealing with a land use agency, from the largely adminis trative responsibility of preparing forms necessary to initiate ?ases to the direct

^^^pll^presentation of cli

Tjjiats in hearings be ffare administrative

law judges. Numerous states

have begun to treat public hearings on

zoning issues as

i-judicial, mak them signifi

cantly more formal?of

ten before adminis trative law

judges?and adding time to

the process, says Thomas Pelham of Apgar & Pelham in

Tallahassee, Fla.

"You have to do a much better job of preparing your case," says Pelham, who chairs the Land Use Planning and Zoning Committee of the aba Section of State and Local Government Law. "You cannot just go in and woo a politician, because the change may get challenged in court."

Quasi-judicial or not, public hearings tend to be adversarial in nature. For example, says John Pikarski of Chicago's Gordon & Pikarski, a developer seeking a zon

ing change likely will have expert witnesses to support the request at the hearing. The municipality or

county often presents a supporting or dissenting position, with its own witnesses. Neighbors of the proper ty also have the right to be heard and often are represented by law yers. All witnesses testify under oath subject to cross-examination.

Evidentiary rules, however, tend to be looser in hearings than in court proceedings.

But in Florida, Pelham says, formalization of the hearing proc ess has changed evidentiary stan dards. Evidence now must be rele vant. Neighborhood groups can no longer show up and urge the agency to reject the request on the basis of unsubstantiated claims of such things as increased traffic flow, he says.

As with all administrative agencies, there is an appellate process for zoning and other land use decisions. Appeals may first have to be exhausted within the agency, but some agency rules per mit appeals to go directly to court after the agency has made its initial decision.

Both Pikarski and Pelham caution neophytes about represent ing clients in these cases without the assistance of experienced coun sel, and they cite two keys to suc

cessfully navigating cases through land use agencies where experience can be particularly handy.

Pikarski says a lawyer's artful ness in presenting a client's request to a zoning commission can make all the difference. "I have seen good cases lost by neophytes," he says, "because there are certain terms of art, certain methods of approach that, if not used, can create an im proper image for your client. A poor presentation can ruin a good case."

Pelham advises considering the number of players involved in a

typical land use matter and recog

nizing their political concerns. "In the land use business," he

says, aa whole array of forces comes into play?all the neighborhood groups, environmental groups, gov ernment officials and even state agencies that may have an interest in your project. It is much more

complex than just handling a claim with an insurance company."

License to Drink A slew of business licenses and

permits?each administered by a different agency?are usually necessary for any business. For a restaurant, the biggest trophy may be the liquor license.

Ever since Prohibition ended in 1933, a complex, often confusing patchwork of local and state regula tions has grown around all aspects of the alcoholic beverage industry. As a result, there are few common alities among jurisdictions in the li censure process.

In Florida, for example, where many municipalities ration liquor licenses, obtaining one sometimes is as easy as filing an application before the quota is reached, says Richard Blau of the Tampa office of Miami-based Holland & Knight. Blau chairs the Beverage Alcohol Practice Committee of the aba's ad ministrative law section.

In other jurisdictions, obtain ing a liquor license can be a drawn out process in which the approval of the licensing commission as well as a variety of related agencies must be sought, says Barry Holt, a solo practitioner in Chicago.

For example, Chicago's rev enue department administers the liquor license process, but applica tions must first be circulated to a

variety of other agencies for prelim inary approvals. They then go to the city licensing commission for final approval before the revenue

department issues the licenses. In this process, says Holt, a

lawyer has little to do after prepar ing and submitting the application on behalf of a client. But staying in touch with the commission can help a lawyer answer any questions re

lating to the license request. The ultimate success in obtain

ing a liquor license actually may lie in the groundwork that must be done even before the application is submitted. This often includes deal ing with local political representa tives and neighborhood groups, as well as other government bodies,




such as the police department. Further complications can

arise in seeking to transfer licenses from former to new owners of exist

ing establishments. Another large part of liquor

licensing practice is defending clients in enforcement actions for such violations as sell- >

ing alcoholic beverages to a minor. This almost al- /?f ways involves adversarial / ? hearings. /40

Liquor license revo- / -^/J cation proceedings re-

\#j||p semble criminal trials in some respects. The local ^ffllS agency issues charges in jHL - the form of a complaint, /'^S??f Blau explains, to which ( -???B the respondent can-ja?JH^ reply in a number ^flj^^B of ways, includ- ^^^ / ^ ^ ing plea bargain- f

^^^?fm ing or demanding . a hearing.

;

But like many other adminis trative proceedings, liquor license enforcement hearings tend to be less formal than an actual trial, says Blau. "The concerns and for

malities about advocating in front of a jury [including rules of evi dence] are not there."

The Pain of Employee Injuries One reality of business is that

employees inevitably get hurt on the job. At a restaurant, a chef burns a hand, a waiter slips on a stray tomato, a flying cork pops a bartender in the eye. All of that brings another administrative agency into the mix?the state workers' compensation system.

Every state has a form of work ers' compensation covering injuries to employees in the course of their work. Unfortunately, each system is different, except in one respect, say lawyers: Workers' compensa tion hearings are some of the most formal in the administrative prac tice area.

Lawyers have a more clearly defined role in this process at the state level than in most proceed ings of local government adminis trative bodies. But in most workers' comp cases, lawyers do not get in volved until controversies arise about the validity of claims or the amount of compensation being sought, explains Mary Lou Hill of

Ogletree, Deakins, Nash, Smoak & Stewart in Greenville, S.C.

Disputed claims are resolved in hearings before the state work ers' compensation agency. Hill likens those hearings to civil trials because of their formality.

Unlike most other administra tive proceedings, the parties to a workers' comp claim generally may engage in discovery. In some juris dictions, however, it is severely lim ited. In North Carolina, for exam

ple, the parties are required to limit their interrogatories, and deposi tions may only be taken with the consent of all parties or at the order of the agency commissioner.

The bulk of the evidence at a workers' comp hearing is medical, provided through witnesses and treatment records. Hill says it is not uncommon to stipulate to the medical evidence to be introduced at the hearing, and many commis sioners presiding over these cases

require the parties to submit pre hearing briefs narrowing the issues for review.

Hill notes, however, that some

proceedings have their quirks. If a claim in South Carolina is based on

disfigurement, for instance, the in

jured employee must be present at the appeal so the reviewing com

missioners can see the injury. Despite the similarities be

tween workers' compensation pro ceedings and civil trials, she says

many inexperienced practitioners are undone by the subtle differences.

"In North Carolina, a lawyer

can get in trouble for ?an ex parte conversa

tion with the treating physician, while in South Carolina, this is

permissible," she says by way of example.

"There are very spe / i 4 cific rules you must know

?7///ja - Or you can jeopardize

\J*?f your client's case. You

] *)5L can get *n trou^le taking

4hh the occasional case."

Bonier Bureaucracies >' Even local restaurants

y-v can be global concerns.

^jjW When the strategy is to have chefs from around the

W world prepare their native W cuisines, someone will have ^

? to cruise the federal

?j^Hfe bureaucracies for isHff authorization for them to

py^p enter and work in the United

While lawyers practicing in some administrative areas only have to learn their way around one

agency, those with immigration practices have to interact with three bodies, all federal: the Immi

gration and Naturalization Service, the Department of State, and the

Department of Labor. Each has ju risdiction over separate issues re

lating to immigration, including de

portation, employment of aliens and granting visas.

The expanding roles of these bodies have changed the way immi

gration lawyers work, says Harry Joe of Jenkens & Gilchrist in Dal las, a vice chair of the Immigration Law Committee in the aba General Practice, Solo and Small Firm Sec tion. "It has clearly evolved from one of federal court litigation to a federal administrative practice," he says.

The federal bodies involved in

immigration matters have become increasingly bureaucratic, says Joe, and that has greatly reduced the amount of adjudication in this area to the point that it is rare now for

immigration matters to proceed to

hearings. Direct human contact has been

almost eliminated in some cases, such as a request to change the sta tus of an alien resident from stu dent to worker. Joe says the ins has set up nationwide service cen

ters, jokingly called "black holes"

by practitioners, where applications

52 ABA JOURNAL / OCTOBER 1998



for these status change requests are filed. The only way to check on the status of an application is through an automated telephone system.

Experienced immigration law yers, however, frequently know the inside numbers of the agency ser vice centers and can get answers for their clients to expedite the process.

Edward J. Carroll of Carroll & Scribner in Burlington, Vt., offers another example of how lawyers can expedite administrative pro cesses in immigration matters even in setups primarily involving pa perwork.

Lawyers must understand the

policy sensitivities of the Labor De partment when trying to obtain a work visa for an alien whom a client wants to employ, says Car roll, another vice chair of the gener al practice section's Immigration Law Committee.

The paperwork must artfully acknowledge the Labor Depart ment's interest in assuring that for

eign nationals will not take work from qualified U.S. citizens while still arguing that the alien should be hired, says Carroll.

"It is not something that can be done intuitive- 4 ly," he adds. ? ": \

^ _

Dealing with the State Depart ment also requires finesse, and sometimes ingenuity, as well. Car roll and Joe note that decision

making in the immigration field is not always bound by the same rig id rules and procedures typical of other areas.

Joe recalls a case in which a

longtime U.S. citizen was trying to bring his adult daughter into the country from China. Despite ample evidence of their familial relation

ship, the State Department reject ed the application on grounds of fraud.

In what was to his knowledge the first case of its kind, Joe con vinced State Department officials to accept blood test results as

proof that his clients were father and daughter. Then he traveled to

Washington, where he persuaded an acquaintance at the State De partment to reopen the case. Final ly, the daughters entry application

was granted. "You have to have

connections," says Joe. "You

have to

know who the people are in these agencies, how they work, how they think and what they are looking for. There is a high amount of diplo macy involved because they have so much discretion."

While the lack of formal guide lines and rules of disclosure for de cision-making in some aspects of the immigration field can be frus trating to lawyers, it can also make their work easier.

For example, says Carroll, evi dence submitted in a matter does not always have to be authenticat ed to the same extent as would be required in a trial. Generally, wit nesses are not subject to cross-ex

amination, and rules of evidence do not apply.

"The agency is willing to accept the truthfulness of the evidence submitted," Carroll observes.

While immigration matters rarely bring lawyers before federal administrative law judges, hear

ings constitute the bulk of practice in the Social Security field.

These hearings generally in volve challenges to denials of claims for disability benefits, says

Mark Bronstein of Kehoe, Doyle, Playter & Novick in Boston.

Much of the legal work in So cial Security cases is devoted to de

veloping the necessary medical and vocational evidence to establish the client's entitlement to the benefit.

Like so many other types of ad ministrative proceedings, Social Se

curity hearings are procedurally in formal?there is no discovery, rules of evidence are not strictly applied, and claimants are not subject to cross-examination.

But lawyers play an intensive advocacy role at hearings in trying to show administrative law judges why the physical conditions of ap plicants have rendered them un able to work and therefore eligible for benefits, Bronstein says.

Social Security law is getting harder for the neophyte to enter, says Bronstein, which increasing

ly is the case in many other areas of administrative law, as well.

"The regulations are get ting more complex and are

changing more frequently," he says. "Seat-of-your-pants advo

cacy is no longer efficient." It's that way in a lot of ad

ministrative practices. Even when all anyone wants is a chance for a

good seat in one of the area's hottest new dining spots.

* ? * ^^"f^?BPS^^g,




Documents

MENU for SUCCESS: Government agency red tape often requires administrative hearings to sort out. But lawyers who think the looser rules of the process serve up easier work are likely