HUSTEDT v. WORKERS COMPENSATION APPEALS BOARD (1980)

Petitioner, Edward F. Hustedt, petitioner, an attorney licensed to practice law in California, petitioned this court for an extraordinary writ to prohibit the Workers' Compensation Appeals Board (Board) from proceeding further in two pending matters captioned as follows:

(1) “In Re Alleged Contempt of Edward F. Hustedt, Esq., WCAB MISC. NO. 114”

(2) “In Re Possible Removal, Suspension or Denial of Privilege to Appear in Proceedings Before Appeals Board, WCAB MISC. NO. 115.”

In the latter proceeding the Board, pursuant to Labor Code section 4907¹ , threatens to suspend petitioner's privilege to appear before it.² We deny the petition.

Both proceedings arose out of petitioner's representation of an employer in a Workers' Compensation claim before the Board, entitled Gallow v. California Hospital Medical Center, WCAB NO. 78 CS 00202. Both proceedings are based on (1) an alleged willful failure to appear at a scheduled hearing, and (2) the filing of a petition for disqualification of a Workers' Compensation judge because of bias and prejudice, which petition allegedly was filed solely for the purpose of delay and allegedly contains false and untrue statements.³

Petitioner's principal contention is that Labor Code section 4907 is unconstitutional insofar as it purports to grant the Board power to discipline licensed attorneys by way of contempt or otherwise. In this position he is joined by the State Bar of California, which has filed an amicus curiae brief.

Labor Code section 4907 has its basis in California Constitution, Article XIV, s 4, which grants to the Legislature plenary power, unlimited by any other provision of the Constitution, to create and enforce a system of workers' compensation including the power to establish a mechanism for the administration of the system and for the expeditious and inexpensive resolution of disputes arising thereunder.⁴

The claim of unconstitutionality, although stated in various ways, i. e., that the statute exceeds the Legislature's authority, contravenes the doctrine of separation of powers and does not harmonize with public policy, is simply that the authority to license and discipline attorneys is, and should remain, exclusively the province of the Supreme Court acting through its administrative arm, the State Bar of California.

The practice of law can be said to consist generally of three forms of professional activity; (1) consultation with clients, (2) drafting and preparation of legal instruments, and (3) advocacy of representation of clients before courts and other tribunals. (See 1 Witkin, Cal. Procedure (2d ed.) Attorneys, s 3, pp. 11-12; People v. Merchants Protective Corp., 189 Cal. 531, 209 P.2d 363.)

Admission to the practice of law as a licensed attorney carries with it the right to engage in those activities and to appear before all the courts of the state. Conversely, it is a crime for a person, other than a licensed attorney, to practice law. (Bus. & Prof. Code, s 6126.)

The State Bar has favored us with a thorough and unassailable analysis of the history and parameters of the Supreme Court's authority in the field of regulating the profession and its practitioners. The Supreme Court's preeminence cannot be questioned. It is important to observe, however, that the Supreme Court, in imposing discipline does not order suspension or disbarment from a particular case, field of practice, or particular court; rather it orders suspension or disbarment from all practice of law. (Smith v. Superior Court, 68 Cal.2d 547, 68 Cal.Rptr. 1, 440 P.2d 65.) Thus the power exercised by the Supreme Court is infinitely more pervasive than that purported to be exercised by the Board.

The issue presented by the instant petition is whether Labor Code section 4907, in granting to the Board the power to suspend or revoke the privilege of any person to appear before it in a representative capacity, as applied to attorneys, constitutes a regulation of the “practice of Law”, which unconstitutionally impinges on the authority of the Supreme Court, and invades the field preempted by the State Bar Act. (Bus. & Prof. Code, ss 6000, et seq.)

The people in adopting the Article XIV, s 4, have spoken in the most clear and comprehensive terms in describing the Legislature's authority. Similarly, the Legislature has left no doubt of its intention in enacting Labor Code section 4907. The language of that statute is clear and unambiguous.

The Legislature's interpretation of the constitutional provision under which it purports to act is entitled to great weight for the reason that the California Constitution, unlike the United States Constitution, does not grant power to the Legislature but instead serves as a limitation on the inherent or residual power of the Legislature. (California Housing Finance Agency v. Patitucci, 22 Cal.3d 171, 148 Cal.Rptr. 596, 583 P.2d 151.)

“The purpose of the doctrine (of separation of powers) is to prevent one branch of the government from exercising the complete power constitutionally vested in another; it is not intended to prohibit one branch from taking action properly within its sphere that has the incidental effect of duplicating a function or procedure delegated to another branch.” (Younger v. Superior Court, 21 Cal.3d 102, at 117, 145 Cal.Rptr. 674, 577 P.2d 1014.)

A statute should be upheld unless its unconstitutionality appears clearly and unmistakably. (Fox v. Federated Department Stores, Inc., 94 Cal.App.3d 867, 156 Cal.Rptr. 893; L. B. Foster Co. v. County of Los Angeles, 265 Cal.App.2d 24, 71 Cal.Rptr. 16.) Any doubt as to the Legislature's authority to act in a given area must be resolved in favor of the legislative action and the enactment must not be construed to embrace matters not covered by the language of such enactment. (City and County of San Francisco v. Workers' Comp. Appeals Bd., 22 Cal.3d 103, 148 Cal.Rptr. 626, 583 P.2d 151.) Legislative enactments must be construed in a manner that seeks to harmonize the statute and the Constitution. (Welton v. City of Los Angeles, 18 Cal.3d 497, 134 Cal.Rptr. 668, 556 P.2d 1119.)

The Legislature has provided that any party appearing before the Board may be represented by a person who is not an attorney. (Lab.Code, s 5700.) This is consistent with the constitutional mandate to provide an expeditious and inexpensive method of fairly resolving disputes. (Cal.Const., Art. XIV, s 4.)

That provision was upheld in Eagle Indem. Co. v. Industrial Acc. Com., 217 Cal. 244, 18 P.2d 341, where the Supreme Court in upholding the validity of then Section 19(a) of the Workers' Compensation Act (now Labor Code section 5700) also sanctions the power of the Industrial Accident Commission (now the Board) to award attorney's fees to non-lawyer representatives.

If the adjudicatory machinery of the Board is to operate effectively and expeditiously, it is essential that the Board have available to it reasonable means of regulating the conduct of persons who appear before it.

The power of contempt is necessary for a tribunal to conduct orderly proceedings (Smith v. Superior Court, supra). By virtue of Labor Code sections 133 and 134, that power has been given to the Board. The petitioner does not seriously contend that the granting of contempt powers to the Board impinges on the power of the Supreme Court to discipline attorneys, so long as the sanction imposed does not take the form of suspending the privilege to appear before the Board.

Labor Code section 4907 is modest in its scope. The power of the Board extends only to regulating those persons who may appear before it. It does not purport to reach beyond the confines of advocacy before the Board. It cannot be construed as empowering the Board to regulate any other activity or function that might be described as the “practice of law.”

This limitation is illuminated when we examine the converse of the Board's authority. While the Legislature has authorized lay persons to appear before the Board in a representative capacity, it has not and could not authorize a lay person to represent another in processing and appearing on a petition for a writ of review to this court, where only duly licensed attorneys may practice. By the same token the Board could not exercise any authority over attorneys who undertake such representation.

The California Supreme Court in Baron v. City of Los Angeles, 2 Cal.3d 535, 86 Cal.Rptr. 673, 469 P.2d 353, considered a challenge to the validity of an ordinance of the City of Los Angeles regulating the activities of lobbyists by a licensed attorney, who represented clients before the City Council and various city commissions and boards. In establishing a test for whether legislative regulation of the activities of attorneys encroaches on the field preempted by the State Bar Act, the court held at pages 543-544, 86 Cal.Rptr. 673, 469 P.2d 353: “(T)he State Bar act preempts the field of regulation of attorneys only insofar as they are ‘practicing law’ under the act-i. e., performing services in a representative capacity in a manner which would constitute the unauthorized practice of law if performed by a layman the act in its entirety constitutes an exclusive state regulatory scheme only insofar as it governs the activities which only licensed attorneys can lawfully perform.” (Emphasis added.)

We are not unmindful of the fact that a number of attorneys devote substantially all of their professional efforts to the field of workers' compensation and that this area of the law is a recognized specialty. The fact remains, however, that the advocacy portion of that type of practice is open to laymen and lawyers alike. Since advocacy before the Board and its subordinate tribunals is not an activity restricted to licensed attorneys, under the test of Baron v. City of Los Angeles, supra, regulation of such advocacy is not preempted by the State Bar Act or the inherent power of the Supreme Court to regulate the practice of law.

An attorney who opts to appear as an advocate in workers' compensation proceedings is subject to the same rules and regulations as any other person performing in the same role. If the problem is one which the profession feels is intolerable, the solution is legislative action by way of repeal of either Labor Code sections 4907 or 5700. We are of the opinion that the existing scheme does not offend the Constitution or the doctrine of separation of powers. It is well within the Legislature's prerogative.

Turning now to petitioner's other contentions:

If it is true that Hustedt failed, without proper excuse, to appear at a hearing scheduled before the Board, this is clearly a proper basis for contempt. (Arthur v. Superior Court (1965) 62 Cal.2d 404, 408-409, 42 Cal.Rptr. 441, 398 P.2d 777; Chula v. Superior Court (1962) 57 Cal.2d 199, 203, 18 Cal.Rptr. 507, 368 P.2d 107; Rosenstock v. Municipal Court (1976) 61 Cal.App.3d 1, 6-7, 132 Cal.Rptr. 59.)

Hustedt argues, however, contempt cannot be based upon his petition to disqualify the judge. We do not agree. “Contempt may be committed by an attorney by the filing of briefs, pleadings, affidavits, or other written documents containing contemptuous matter.” (14 Cal.Jur.3d, Contempt, s 36, p. 73.)

“Since bias and prejudice of a judge (is) a ground of objection to his competency, statements made in an affidavit in support of a party's motion for a change of judge will not be regarded as contemptuous, as tending to interrupt the due course of judicial proceedings; such statements are privileged if they state just grounds for disqualification, unless they are wholly irrelevant, immaterial, and offensive to the judge hearing the motion, or unless they are made in bad faith, and the facts are falsely stated with improper intent. Statements in such an affidavit do not warrant a charge of contempt if they merely show the bias and prejudice of the judge against the client, though they may reflect upon the integrity and good faith of the judge. But the filing of an affidavit embodying statements which are in effect a scurrilous and wanton attack on the court, constitutes contempt by both the attorney and his client.” (14 Cal.Jur.3d, Contempt, s 37, pp. 73-74; see In re Ciraolo (1969) 70 Cal.2d 389, 74 Cal.Rptr. 865, 450 P.2d 241; Lamberson v. Superior Court (1907) 151 Cal. 458, 462-464, 91 P. 100; see also In re Buckley (1973) 10 Cal.3d 237, 110 Cal.Rptr. 121, 514 P.2d 1201.)

Thus, Hustedt's mere averment of bias or prejudice by the judge is not a proper basis for contempt. However, Hustedt's petition for disqualification may be grounds for contempt if the statements made therein are known to be false and made in bad faith. This is exactly what Hustedt is charged with, that his petition for disqualification was made in bad faith (purely for purposes of delay) and contains false statements.

Further, irrelevant, insulting, abusive, grossly discourteous or false statements made in Hustedt's petition for disqualification are not protected by the constitutional guarantees of freedom of speech. (Spencer v. Dixon (W.D.La.1968) 290 F.Supp. 531; 14 Cal.Jur.3d, Contempt, s 19, p. 39; Annot. Motion to Disqualify Judge as Contempt (1956) 70 A.L.R.3d 797; 816-817, s 5(c); Ramirez v. State Bar of California (1980) — Cal.App.3d —, 169 Cal.Rptr. 206, 619 P.2d 399.)

Hustedt also attacks the contempt proceedings on the grounds he has been denied a speedy trial. The delays here do not require dismissal of the contempt proceedings as Hustedt has shown no prejudice and part of the delay has been the result of Hustedt's own actions. (Marcus v. Workmen's Comp. Appeals Bd., 35 Cal.App.3d 598, 604-605, 111 Cal.Rptr. 101.) Hustedt requested a continuance of one hearing and has filed massive pleadings with the Board.

As to Hustedt's other alleged procedural irregularities, either they are not meritorious or do not now require dismissal of the contempt proceedings at this stage.

Accordingly, the contempt action may proceed without prejudice for Hustedt to renew his contentions upon completion of the contempt proceedings. Nothing said herein should be construed to express an opinion on whether Hustedt should be found guilty of contempt.

The alternative writ is dismissed and the order previously issued by this court staying the contempt and disciplinary proceedings is vacated.

The petition is denied.

I dissent from the portion of the majority's decision which holds that the Workers' Compensation Appeals Board (WCAB) “may, after a hearing” and obviously after a finding of cause which in its opinion is adequate, discipline attorneys licensed to practice law in this state by the removal, denial, or suspension of the right to “appear” before it, even assuming the word “appear” legally has all the limitations with which it is circumscribed by the court.¹

The fundamental misconception left by the majority opinion is that acting as a representative before the WCAB may somehow not be the practice of law. The Supreme Court decision in Eagle Indem. Co. v. Industrial Acc. Com. (1933) 217 Cal. 244, 18 P.2d 341 and our own decision in Bland v. Reed (1968) 261 Cal.App.2d 445, 448, 67 Cal.Rptr. 859 expressly recognize that practice before the WCAB is the practice of law. It is exactly because acting as another's representative in WCAB proceedings is the practice of law that a specific statutory exception must exist to allow non-attorney representatives. (Eagle Indem. Co., supra, 217 Cal. at pp. 248-249, 18 P.2d 341; Bland v. Reed, supra, 261 Cal.App.2d at p. 448, 67 Cal.Rptr. 859; see Comment, Workmen's Compensation Act: Practice of Law: Right of Laymen to Appear Before Industrial Accident Commission in Representative Capacity (1934) 22 Cal.L.Rev. 121) and why the Supreme Court in Eagle Indem. Co. had to examine whether the legislative enactments allowing lay representatives and permitting them to receive attorneys fees had to “stand the test of judicial inquiry as to propriety and reasonableness.” (Italics added.) (Eagle Indem. Co., supra, at p. 247, 18 P.2d 341; Comment, op. cit. supra, 22 Cal.L.Rev. at p. 122; see also, Annot., Handling, Preparing, Presenting, or Trying Workmen's Compensation Claims or Cases as Practice of Law (1965) 2 A.L.R.3d 724.) Thus, contrary to the apparent analysis of the majority opinion, by permitting lay persons to practice before the WCAB the Supreme Court in Eagle Indem. Co. has not changed the fact that practice before the WCAB is the practice of law.²

A literal reading of article XIV, section 4 of the California Constitution by which the Legislature is “expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers' compensation, by appropriate legislation, ” (Italics added) lends a complexion of validity to Labor Code s 4907.

I respectfully suggest that the Legislature in its zeal to empower the WCAB with complete autonomy as a court of original jurisdiction in all matters within the embrace of the language of article XIV, section 4, overlooked the fact that nothing in that language defining the objectives of and creating a complete system of workers' compensation authorizes, or legally or pragmatically requires a limitation or elimination of the sole jurisdiction of the Supreme Court of this state with respect to the admission of persons to practice law in this state or to their official reprimand, suspension and/or disbarment after admission.

The high purpose of the constitutional provision is emphasized in City and County of San Francisco v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 103, 115, 148 Cal.Rptr. 626, 583 P.2d 151 in which the court, speaking of the plenary power of the Legislature, says:

“(T)he initial sentence of article XIV section 4 affirms the legislative prerogative in the workers' compensation realm in broad and sweeping language, declaring that: ‘The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers' compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability, and their dependents for death incurred or sustained by said workers in the course of their employment, irrespective of the fault of any party.’ (Italics added.) Moreover, section 4 goes on to specifically provide that the Legislature's ‘plenary power’ in this realm includes the power to ‘fix and control the method and manner of trial of any such dispute (and) the rules of evidence (applicable to) the tribunal or tribunals designated by it’ and, quite significantly, also declares that the broad legislative power should be exercised ‘to the end that the administration of (the workers' compensation) legislation shall accomplish substantial justice in all cases expeditiously, inexpensively and without incumbrance of any character ’ ”

There are, however, limits to Legislature's power in the field of workers' compensation. As succinctly summarized by 2 Witkin, Summary of California Law (8th ed. 1973) Workmen's Compensation, s 3, pp. 853-854:

“The theory of our courts has been that any parts of the statute which are outside the scope of the constitutional enabling provision are invalid. This was held to be the case, e. g., with the original statutory definition of independent contractor (Flickenger v. Ind. Acc. Com. (1919) 181 C. (Cal.) 425, 432, 184 P. 851; Fidelity etc. Co. v. Ind. Acc. Com. (1923) 191 C. (Cal.) 404, 406, 216 P. 578); the rehabilitation fund for disabled employees (People v. Yosemite Lumber Co. (1923) 191 C. (Cal.) 267, 270, 216 P. 39; 12 Cal.L.Rev. 58; 18 Cal.L.Rev. 276; 2 So.Cal.L.Rev. 389); the earlier statutes providing for a ” subsequent injuries fund“ (Commercial Cas. Ins. Co. v. Ind. Acc. Com. (1930) 211 C. (Cal.) 210, 214, 295 P. 11; People v. Standard Oil Co. (1933) 132 C.A. (Cal.App.) 563, 564, 23 P.2d 86; 19 Cal.L.Rev. 325); and a legislative attempt to give the Commission power to adjudicate or enforce the contractual liability arising under an insurance policy (Glass Containers v. Ind. Acc. Com. (1953) 121 C.A. (Cal.App.2d) 656, 657, 264 P.2d 148, infra, s 95).

“These decisions struck down provisions of considerable importance, not because of lack of legislative authority under the police power to regulate the particular subjects, but rather because of the basic assumption that the constitutional enabling provision authorizes creation of a new type of court and judicial proceeding, and dispenses with jury trial, only with respect to subjects falling within its express terms, and that the provision refers expressly to liability of employers to compensate ‘their workmen’ and ‘their dependents.’ Hence, under this theory, the Legislature cannot create liability against those dealing with independent contractors, nor can it compel an employer to compensate the employees of some other person.” (Italics in original.)

A fair analysis of the plenary powers conferred on the Legislature “to create, and enforce a complete system of workers' compensation” shows that the single purpose of article XIV, section 4, was and is to establish a tribunal with original jurisdiction limited to differences and disputes between workers and their employers within the embrace of a defined jurisdiction and to endow that tribunal with all the authority required to accomplish that objective. Thus, article XIV, section 4, authorizes the Legislature to make “full provision for vesting power, authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; all of which matters are expressly declared to be the social public policy of this State, binding upon all departments of the State government.”

The Legislature, among other statutes, enacted Labor Code sections 133 and 134, effectively granting the WCAB substantially the same powers of any court of record including the power of contempt.

While accepting the WCAB as an important court of record and one of vast constitutionally specialized original jurisdiction, it is certainly no more important than a superior court of this state. The superior court does not have nor does it attempt to burden itself with the power to hold or to hear a proceeding which has for its single purpose, the discipline of a licensed lawyer to practice before it or to suspend or disbar such lawyer for cause even though the conduct of the lawyer involved was committed in the immediate presence of the judge of that court, irrespective of the fact that the same conduct may be the subject of disciplinary proceedings through the State Bar affecting the offender's license.³ Certainly, the judge of the court in question may decide the offender is chargeable with contempt and proceed to hold a hearing to determine whether there is guilt and punish the offender for contempt alone.

I know of no common sense reason why the WCAB needs the literal power apparently conferred upon it by Labor Code section 4907 and as pointed out above, it is not warranted by any language in article XIV, section 4 of the California Constitution. If the legislative history of Labor Code s 4907 intended it as it literally reads, it clearly accomplished nothing to place the WCAB in a position to accomplish the stated objective of article XIV, section 4, and it is unconstitutional as well as vague, inconsistent with, and paradoxical to the prime purpose of article XIV, section 4 “to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability, and their dependents for death incurred or sustained by the said workers in the course of their employment, irrespective of the fault of any party” and “to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.” (Ante, fn. 3.)

Labor Code section 4907 merely burdens the WCAB with responsibilities it is not equipped to properly assume. Further, there are some most disturbing aspects to the WCAB's purported power to discipline attorneys.

As observed by counsel and Amicus Curiae, there is a dramatic difference between disciplinary proceedings under the State Bar Act and Labor Code section 4907.

Provisions of the State Bar Act (Bus. & Prof.Code, ss 6000 et seq.) and the Rules of Professional Conduct detail the standards of conduct for attorneys. The State Bar has also adopted rules of procedure for disciplinary matters.⁴

The WCAB, on the other hand, has not formally adopted rules of attorney conduct nor published procedural rules for disciplinary matters. Labor Code section 4907 standard for discipline is “for violation of this chapter or for other good cause.” The reference of “this chapter” refers to Division 4, Part 2, chapter 1 of the Labor Code which concerns payment and assignment of claims and attorneys' liens and fees. “Good cause” finds no definition in the statute nor has the WCAB extensively explored it.

Violation of the WCAB's rules concerning attorneys' fees is a ground for disciplinary proceedings through the State Bar as the administrative arm of the Supreme Court. (See Coviello v. State Bar (1953) 41 Cal.2d 273, 259 P.2d 7.) Obviously, “good cause” under Labor Code section 4907 encompasses the standards of attorney conduct established pursuant to the State Bar Act, the Rules of Professional Conduct and decisional law. Thus, WCAB disciplinary proceedings are merely duplicative of those available through the State Bar and ultimately by the Supreme Court. Accordingly, where the WCAB feels disciplinary proceedings are warranted, the matter should be referred to the State Bar.⁵

Further, as already noted (ante, fn. 3), appellate review of the WCAB's exercise of its authority under section 4907 is limited to the inquiry of whether substantial evidence supports the WCAB's decision (Lab.Code, ss 5810, 5950-5956) and the appellate courts are expressly prohibited from exercising their “independent judgment” on the evidence (Lab.Code, s 5952). In contrast, the State Bar's disciplinary recommendations are not binding on the Supreme Court and the Supreme Court exercises its independent judgment in fixing the appropriate discipline.

Of particular concern is the WCAB's “double threat” that it has over attorneys. The same body that can find an attorney appearing before it to be in contempt can also suspend him from the practice of law before it. As demonstrated by the present matter, WCAB contempt and disciplinary proceedings often proceed in tandem. This has particularly grave overtones when one considers the potential inhibiting effect it will have on counsel in pressing his client's rightful interests before the WCAB.

Further, the broad power of the WCAB, for “good cause,” to remove, deny or suspend the privilege of an attorney to appear before it, is potentially unlimited in certain respects. The Labor Code does not define “good cause”. Conceivably under the color of “good cause” the WCAB could even remove an attorney's right to appear before the WCAB on grounds that it finds the attorney not competent to practice workers' compensation law.

Finally, the reality of practice before the WCAB must be recognized. It was not by mere chance that workers' compensation was one of the first three areas in California to become a certified legal specialization. The nature of legal practice today is such that many lawyers work full time before the WCAB and their livelihood will be needlessly jeopardized by the WCAB having the right of suspension or disbarment.⁶

For the foregoing reasons, I would hold that to the extent Labor Code 4907 purports to grant the WCAB power to deny, revoke or suspend the right of attorneys licensed to practice law in this state to appear before the WCAB, it is unconstitutional as encroaching upon the inherent judicial power of the Supreme Court.

FOOTNOTES

1.  Labor Code section 4907 provides:“The privilege of any person, including attorneys admitted to practice in the Supreme Court of the state to appear in any proceeding as a representative of any party before the appeals board, or any of its referees, may, after a hearing, be removed, denied, or suspended by the appeals board for a violation of this chapter or for other good cause.”

2.  As yet the Board has neither disciplined petitioner nor found him in contempt. Thus, there is the initial question of whether the court should interfere at this stage of the proceedings. Labor Code section 5955 expressly provides that in a proper case a “ ‘writ of mandate shall lie from the Supreme Court or a court of appeal.’ ” (Fidelity & Cas. Co. of New York v. Workers' Comp. Appeals Bd. (Harris) (1980) 103 Cal.App.3d 1001, 1008, 163 Cal.Rptr. 339.) Mandate is a proper remedy where the constitutionality of the Board's acts is called into question. (Harris, supra, at p. 1009, 163 Cal.Rptr. 339.) The writ of prohibition is also available in appropriate cases. (See Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 89-90, 293 P.2d 18.)

3.  The “petition for disqualification of judge” alleged that the judge in question was biased and prejudiced in that (1) prior to becoming a workers' compensation judge, the judge accused petitioner of stealing clients and of being unethical and that he would get even, (2) the judge accused petitioner of representing Nazis, and (3) the judge labeled the employer's representative a Nazi. The judge disqualified himself from the case because, while he maintained petitioner's allegations were untrue, the petition had inflamed and prejudiced the judge.

4.  Article XIV, s 4 of the California Constitution provides:“The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers' compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability, and their dependents for death incurred or sustained by the said workers in the course of their employment, irrespective of the fault of any party. A complete system of workers' compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workers and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workers in the course of their employment, irrespective of the fault of any party also full provision for securing safety in places of employment, full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury full provision for adequate insurance coverage against liability to pay or furnish compensation; full provision for regulating such insurance coverage in all its aspects, including the establishment and management of a State compensation insurance fund; full provision for otherwise securing the payment of compensation; and full provision for vesting power, authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; all of which matters are expressly declared to be the social public policy of this State, binding upon all departments of the State government.“The Legislature is vested with plenary powers, to provide for the settlement of any disputes arising under such legislation by arbitration, or by an industrial accident commission, by the courts, or by either, any, or all of these agencies, either separately or in combination, and may fix and control the method and manner of trial of any such dispute, the rules of evidence and the manner of review of decisions rendered by the tribunal or tribunals designated by it, provided, that all decisions of any such tribunal shall be subject to review by the appellate courts of this State. The Legislature may combine in one statute all the provisions for a complete system of workers' compensation, as herein defined.“The Legislature shall have power to provide for the payment of an award to the state in the case of the death, arising out of and in the course of the employment, of an employee without dependents, and such awards may be used for the payment of extra compensation for subsequent injuries beyond the liability of a single employer for awards to employees of the employer.“Nothing contained herein shall be taken or construed to impair or render ineffectual in any measure the creation and existence of the industrial accident commission of this State or the State compensation insurance fund, the creation and existence of which, with all the functions vested in them, are hereby ratified and confirmed.”

1.  The majority limits the definition of the WCAB's power to suspend the right of an attorney to “appear” before the WCAB to advocacy before the WCAB. It is assumed that the majority refers to both physical appearances of an attorney before the WCAB and the filing with the WCAB of pleadings, petitions, etc. by the attorney. The majority, however, holds that the WCAB has no authority to prevent an attorney to counsel clients, write letters, prepare documents for filing with the WCAB by other attorneys, and otherwise engage in the practice of the field of workers' compensation law under the California Workers' Compensation Act. There are three problems with the majority's limitation of the meaning of “appear”.First, it substantially emasculates the WCAB's purported power pursuant to Labor Code s 4907. The WCAB may rightly complain that so severely limiting its authority so handicaps it that its power is essentially ineffective.Secondly, sole practitioners and small firms are more severely affected than large firms. The large firm can financially afford to have an attorney suspended from practice before the WCAB; the suspended attorney can remain in the firm's office, preparing pleadings for other attorneys in the firm, interviewing clients and witnesses, reviewing medical reports and records, checking files, etc. The sole practitioner, on the other hand, can have his workers' compensation practice effectively destroyed since he cannot appear with his client before the WCAB. Similarly, a small law firm may not be able to afford to have one of its members sit in the office all day because of his suspension by the WCAB.Finally, the majority's definition of “appear” in Labor Code section 4907 perhaps has interesting consequences concerning the right of a lay person to represent parties before the WCAB. Labor Code s 5700 provides that “Either party may be present at any hearing, in person, by attorney, or by other agent”. (Italics added.) It is section 5700 that gives lay persons the right to represent other parties before the WCAB. Under the majority's definition of “appear” in section 4907, query to what extent a lay representative may properly counsel others concerning workers' compensation matters beyond the scope of “appearance” before the WCAB.

2.  Eagle Indem. Co. upheld section 19(a) of Workers' Compensation Act (now Labor Code section 5700) which permitted any party before the Industrial Accident Commission (now the WCAB) to be represented by someone not an attorney. The Supreme Court also sustained the power of the Commission to award attorneys fees to the claimant's non-lawyer representative.The Board urges that it is clear by Eagle Indem. Co. that the Supreme Court has resolved the question herein and there is no conflict between Labor Code section 4907 and the judiciary's power over the practice of law. However, as the State Bar points out Eagle Indem. Co. did not directly concern the power of the then Commission to discipline attorneys and the court's passing remark of the power of the Commission to discipline attorneys should be considered merely dicta. Eagle Indem. Co. only approved legal representation by non-attorneys in proceedings before the Commission.Indeed the fact that Eagle Indem. Co. did not resolve the question herein can be seen by the subsequent decision of the Court of Appeal in Brophy v. Industrial Acc. Com. (1941) 46 Cal.App.2d 278, 115 P.2d 835. In Brophy, an attorney was the subject of contempt proceedings and also disciplinary proceedings. At the hearing in these proceedings the attorney refused to testify because of the nature of the proceedings, criminal (for contempt) and disciplinary. The Commission therefore ordered that he be suspended for 30 days and if he continued to refuse to testify he would be disbarred from practice before the Commission.The court in Brophy, in a majority opinion written by then Presiding Justice Peters, held the order purporting to suspend Brophy was invalid because the order to show cause which initiated the proceedings had not been served until after the time it was returnable, and also because the Commission lacked jurisdiction to compel Brophy to testify in the proceedings because of their dual nature (i. e., both civil and criminal) in violation of his constitutional rights. By so invalidating the Commission's order, the court found it unnecessary to decide whether Labor Code section 4907 was either invalid for uncertainty (the power to discipline for “good cause” being argued as vague) or based upon the rationale “such a general grant of power is void.” (Brophy, supra, at p. 282, 115 P.2d 835.)Accordingly, I do not find Eagle Indem. Co. to be controlling on the validity of Labor Code section 4907 as it applies to attorneys.Further, it is observed that in Eagle Indem. Co. the Industrial Accident Commission urged that lay representatives were needed in workers' compensation matters as “numerous claimants for compensation are indigent and their claims are of such a character and the compensation allowed by the Commission is so small as not to justify the engagement or service of a member of the bar, and that without the right to have a lay representative the claimant would ofttimes be unrepresented” (Id. at p. 249, 18 P.2d 341.) Eagle Indem. Co., of course, was decided in 1933 and the situation has dramatically changed. Workers' compensation law is a certified legal specialization in California; experienced lawyers regularly practice before the WCAB representing both employers (and their insurance carriers) and injured employees. It is doubtful that today an injured worker would have difficulty in obtaining an experienced workers' compensation attorney and be forced to turn to a lay representative.While apparently there are a few lay persons still representing injured workers before the WCAB (see, e. g. In re Alleged Contempt of Louis Moran (WCAB en banc opinion, 1980) 45 Cal.Comp. Cases 519), the vast majority of lay persons practicing before the WCAB are “hearing representatives” for insurance carriers.

3.  Our courts have consistently supported the position that the exclusive right to determine who is qualified to practice law is an inherent power of the judiciary. (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 147 Cal.Rptr. 631, 581 P.2d 636; Stratmore v. State Bar (1975) 14 Cal.3d 887, 889-890, 123 Cal.Rptr. 101, 538 P.2d 229; Emslie v. State Bar (1974) 11 Cal.3d 210, 225, 113 Cal.Rptr. 175, 520 P.2d 991; In re Bogart (1973) 9 Cal.3d 743, 750, 108 Cal.Rptr. 815, 511 P.2d 1167; Brotsky v. State Bar (1962) 57 Cal.2d 287, 300, 19 Cal.Rptr. 153, 368 P.2d 697; In re Lavine (1935) 2 Cal.2d 324, 328, 41 P.2d 161, 42 P.2d 311; Brydonjack v. State Bar (1929) 208 Cal. 439, 443, 281 P. 1018.) “We deem it established without serious challenge that legislative enactments relating to admission to practice law are valid only to the extent they do not conflict with rules for admission adopted or approved by the judiciary. When conflict exists, the legislative enactment must give way.” (Merco Constr. Engineers, Inc. v. Municipal Court, supra, 21 Cal.3d at pp. 728-729, 147 Cal.Rptr. 631, 581 P.2d 636.) It is the judiciary and not the Legislature that is the final policy maker with respect to the admission to practice law. (Id. at p. 731, 147 Cal.Rptr. 631, 581 P.2d 636.) Thus the judiciary may invalidate Labor Code section 4907 if it offends the separation of powers clause (Cal.Const., art. III, sec. 3). (Merco Constr. Engineers, Inc., supra, 21 Cal.3d 724, 147 Cal.Rptr. 631, 581 P.2d 636.)The enactment of article XIV, section 4 did, of course, effect a repeal pro tanto of state constitutional provisions in conflict therewith and enabled the Legislature, so far as limited by article XIV, section 4, itself to provide a complete, workable scheme unhampered by limitations contained in the State Constitution. (Subsequent etc. Fund v. Ind. Acc. Com. (1952) 39 Cal.2d 83, 88, 244 P.2d 889.) However, such a repeal pro tanto of conflicting constitutional provisions extend only “in so far as necessary” to permit enactment of a complete workers' compensation system. (See Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691, 97 Cal.Rptr. 1, 488 P.2d 161.) In this regard, it is clearly unnecessary for the establishment of a complete system of workers' compensation that the judiciary's exclusive power to discipline attorneys must be infringed upon by the WCAB. The WCAB has contempt power; discipline can be achieved through the State Bar.In purporting to grant disciplinary power to the WCAB the Legislature has not made the WCAB an administrative arm of the Supreme Court as is the State Bar. This distinction is important.“(The State Bar) is not an administrative board in the ordinary sense of the phrase. It is sui generis. In disciplinary matters (and in many of its other functions) it proceeds as an arm of this court. If the Legislature had not recognized this fact, and made provisions therefor, the constitutionality of those portions of the State Bar Act which provide for the admission, discipline and disbarment of attorneys could have been seriously challenged on the ground of legislative infringement on the judicial prerogative. ((Italics added.)) Historically, the courts, alone, have controlled admission, discipline and disbarment of persons entitled to practice before them (6 Cal.Jur.2d, Attorneys at Law, s 9, p. 135; People v. Turner, 1 Cal. 143 (52 Am.Dec. 295); Barton v. State Bar, 209 Cal. 677, 680-681, 289 P. 818; Brydonjack v. State Bar, 208 Cal. 439, 443, 281 P. 1018, 66 A.L.R. 1507). In adopting the statutory system now existing in California, the Legislature did not attempt to alter this basic concept By section 6078 (of the Business and Professions Code) the Board of Governors of the State Bar may only recommend suspension or disbarment. Final action can only be taken by this court. While the board is given the power to take lesser disciplinary action on its own authority, as already pointed out such action is made reviewable by this court (s 6082, supra ).” (Brotsky v. State Bar, supra, 57 Cal.2d at pp. 300-301, 19 Cal.Rptr. 153, 368 P.2d 697.)Labor Code section 4907 attempts to vest directly with the WCAB the independent power to remove, deny or suspend the privilege of attorneys to appear before the WCAB. Judicial review of such action by the WCAB is subject to a petition for writ of review but the standard of review is substantial evidence in light of the entire record (Lab. Code, ss 5810, 5850-5956) and the court is expressly prohibited from exercising “its independent judgment” on the evidence (Lab. Code, s 5952). In contrast, while the Supreme Court ordinarily attaches great weight to the State Bar's disciplinary recommendation (Hamilton v. State Bar (1979) 23 Cal.3d 868, 878, 153 Cal.Rptr. 602, 591 P.2d 1254; Weir v. State Bar (1979) 23 Cal.3d 564, 570, 576, 152 Cal.Rptr. 921, 591 P.2d 19), the Supreme Court exercises its independent judgment in fixing the appropriate discipline. (Cain v. State Bar (1979) 25 Cal.3d 956, 960-961, 160 Cal.Rptr. 362, 603 P.2d 464; Weir, supra, at p. 576, 152 Cal.Rptr. 921, 591 P.2d 19.)

4.  The Rules of Procedure of the State Bar of California are published in West's Annotated California following Business and Professions Code section 6087 and in West's California Rules of Court (1980) pp. 404-440.

5.  Suspension from the practice of law by the Supreme Court, is of course, a more severe penalty than suspension from practice before the Board. The Supreme Court does not order suspension or disbarment from a particular case or field of practice; rather the Supreme Court orders suspension of disbarment from all practice of law. (Smith v. Superior Court (1968) 68 Cal.2d 547, 559-560, 68 Cal.Rptr. 1, 440 P.2d 65.)

6.  Discipline of lay representatives by the WCAB in contrast is constitutional. (Eagle Indem. Co., supra.) As disciplinary action through the State Bar for such lay representatives appears unavailable, there is a clear necessity for the WCAB to have such power over lay representatives to protect the parties whom they represent and to prevent illegal or unethical practices before the WCAB.

COMPTON, Associate Justice.

FLEMING, J., concurs.