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Administrative Practitioners Bill
Reported by House Judiciary Committee

H. R. 4446

(81st Congress—1st Session)

Report No. 905

On June 24, 1949, the House Judiciary Committee reported H. R. 4446, the Administrative Practitioners Bill, too late to include in our June JOURNAL. This bill was introduced by Honorable Francis E. Walter of Pennsylvania in the 81st Congress.

H. R. 4446 was placed on the Consent Calendar of the House, called up for action but passed over, and finally has been removed from the House Calendar upon request. The Report follows:

History, Structure, and Purpose

Legislation has for years been proposed in the Congress on the subject of admissions to practice before administrative agencies. Some 20 bills have been introduced in recent years. When the Administrative Procedure Act was before the House in 1946 it was earnestly argued that it should contain something on the subject. But it was too large and important for fragmentary treatment as a mere part of the Administrative Procedure Act. Subsequent experience with H. R. 2657 and H. R. 7100 of the Eightieth Congress, as well as with H. R. 1566 of this Congress, has demonstrated the need for separate and more comprehensive provision.

From the earliest times, those who represent other people in the courts and before executive bodies have been subjected to regulation. A lawyer is merely a person who has complied with traditional requirements for a license to practice law. The Government of the United States and its agencies leaves the granting of these permits, at least in the first instance, to the courts of the several States, Territories, dependencies, possessions, and the District of Columbia. But there has been a growing system in the executive branch for the administrative admission to practice, and the administrative control, of both lawyers and nonlawyers. It has come about because, in the creation of new governmental agencies to exercise powers of regulation, there has been

1 S. 2944, Mr. Wagner, of New York, 74th Cong.; H. R. 9635, Mr. O'Toole, 75th Cong.; H. R. 4798, Mr. O'Toole, 76th Cong.; H. R. 605, Mr. O'Toole, 77th Cong.; H. R. 2526, Mr. Walter, 77th Cong.; H. R. 94. Mr. O'Toole, 78th Cong; H. R. 4470, Mr. Wickersham, 78th Cong.; H. R. 2323, Mr. Hancock, 78th Cong., S. 1945, Mr. Lucas, 78th Cong.; H. R. 5237, Mr. Smith of Virginia, 78th Cong.; H. R. 5277, Mr. Capozzoli

, 78th Cong.; H. R. 339, Mr. Smith of Virginia, 79th Cong.; H. R. 643, Mr. Wickersham, 79th Cong.; S. 92, Mr. Lucas, 79th Cong.; H. R. 1206, Mr. Walter, 79th Cong.; H. R. 1387, Mr. Hancock, 79th Cong.; S. 572, Mr. Langer, 79th Cong.; S. 740, Mr. McCarran, 79th Cong.; H. R. 3089, Mr. Kefauver, 79th Cong.; H. R. 2657 and H. R. 7100, Mr. Gwynne, 80th Cong.; and S. 746, Mr. Lucas, 81st Cong.

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a natural development of specialized callings as in the realm of rates and accounting. These new specialists, who operate before administrative bodies, have been necessarily subjected to some control in the matter of their practice there.

This dual system of control-one by the courts and the other by some administrative agencies-has produced a number of perennial problems. The study entitled “Admissions to and Control Over Practice Before Federal Administrative Agencies," report of the committee on administrative practice, Bar Association of the District of Columbia, 1938, discusses many of them. Lawyers, although duly licensed and subject to discipline by the courts of both the Federal Government and the several States, have been unnecessarily required to obtain many special licenses from administrative agencies to do what the courts have already authorized them to do. (See the Final Report of the Attorney General's Committee on Administrative Procedure (1941), S. Doc. No. 8, 77th Cong., p. 124). In matters of discipline, lawyers have also thus been subjected to the divided control of both the judicial and administrative branches. In addition, agencies often either license nonlawyer specialists or deal with all representatives regardless of their qualifications or standing.

Again, lawyers are subjected to professional and ethical requirements and disabilities, while with some notable exceptions, nonlawyers are generally either not subject to them at all or are less stringently regulated. Regulation which has been found advisable for the one should surely apply as well to others who undertake to perform similar functions. A nonlawyer who is disqualified from practice before one administrative agency is still left his specialized calling in its nonadministrative aspects or before other administrative agencies. in the court of his admission to practice, a lawyer, subjected to the same type of discipline, normally loses his right to practice his profession anywhere and everywhere. Even more important, however, is the daily subjection of lawyers to extensively stated and judicially expounded canons of professional ethics for which, again with some notable exceptions, there is often no real or effective counterpart among nonlawyer specialists. This lack not only leaves the latter free to disregard accepted ideas of good professional conduct but, in the administrative field, tends to undermine the application of standards of conduct to any practitioner whether he be lawyer or nonlawyer.

If special training and licensing are necessary for practice by lawyers, it is reasonable to suppose that there are similar reasons for controlling practice by nonlawyers. Modern government is so intricate that no man should be permitted to hold himself out as a professional unless he has met professional requirements. To say this is not to disparage the nonlawyer specialist but to place him upon a real professional footing. Moreover, the public is entitled to representation by persons not only of good moral character but equipped with the necessary technical skill and understanding of professional responsibilities. Practically all of the States have such legislation, which their courts have executed and expounded "for the better security of the people against

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incompetency and dishonesty.'2 The Federal Government can afford nothing less for the due protection of the people of the whole United States in their dealings with national administrative agencies.

The present bill, after extensive hearings on H. R. 2657 in the Eightieth Congress, has now been drawn with a view to setting up a system for administrative practitioners which shall be adequate to the needs of today but, at the same time, will utilize past experience and preserve the necessary authority of individual administrative agencies. Section 1 contains only the short title. Section 2 contains definitions. Section 3 provides for a Credentials Committee. Section 4 deals with the regulation of practice. Section 5 simplifies the admission of lawyers to Federal administrative practice. Section 6 provides for the issuance of credentials to nonlawyers. Section 7 relates to disciplinary proceedings. Section 8 contains miscellaneous provisions necessary to effectuate the system proposed.

In short, the bill provides for the licensing and discipline of administrative practitioners. This requires a definition of "practice" (sec. 2) and a method for the admission of lawyers (sec. 5) and nonlawyers (sec. 6). Provision is made for the maintenance of standards of conduct of such licensed practitioners (sec. 4) and for the disciplinary proceedings (sec. 7). Nothing essentially new is proposed, since in each of these aspects of the subject there has been long experience. The bill simply seeks to shape a system which will operate in modern government with due provision for the functions of a great variety of recently created or newly expanded administrative agencies.

Explanation of Provisions
In the following explanation there appears each section of the bill
in italics followed by a paragraph or more of analysis or explanation:

Title
Section 1: This act may be cited as the Administrative Practitioners
Act.

The proposed statute is called a Practitioners Act because it relates to the licensing and regulation of practitioners before administrative agencies. In these days when administrative agencies have taken over much of the work formerly left to the courts, it is timely that there be regulation of such practitioners before such agencies just as there has long been the licensing of lawyers by the courts. Individual agencies have heretofore attempted such regulation, some on an elaborate scale. But many agencies have paid little if any real attention to the matter. Moreover, diverse requirements by the different administrative agencies

2 People ex rel. Chicago Bar Association v. Goodman (366 Ill. 346, 8 N. E. 2d 941, cert. denied, 302 U. S. 728). See also the following representative decisions: Bump v. District Court of Polk County (232 la. 623, 5 N. W. 2d 914); Goodman v. Beail (139 Ohio St. 427, 200 N. E. 470); People v. Alfani (227 N. Y. 334; 125 N. E. 671); Opinion of the Justices (289 Mass. 607, 194 N. E. 313); Matter of Co-operative Law Co. (198 N. Y. 479, 92 N. E. 15); Meunier v. Bernich (La.) (170'So. 567).

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of the Government are confusing to both lawyers and nonlawyers and in most cases fail to constitute a satisfactory system for even one agency. The provisions and comments which follow explain how it is proposed that regulation of administrative practice be achieved and be given a measure of uniformity by this bill.

Definitions

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Sec. 2. Terms shall have the same meaning as in the Administrative Procedure Act (Public Law 404, 79th Cong.) except that the term "agencyshall not include the Tax Court of the United States. "Individual" means a natural person. "Credentialsmeans certificates and other evidence of admission to practice issued pursuant to this Act. Credentials Committee" means the agency established pursuant to section 3. "Practice" means regularly appearing, participating, or offering to do so on behalf of others for a consideration in agency proceedings as the whole or part of a profession, calling, business, or trade. Nothing in this Act shall prevent appearance or participation in an agency proceeding (1) as a witness; (2) for a limited or special purpose; (3) by an individual on his own behalf; (4) by a partner on behalf of the partnership; (5) by an officer or regular full-time employee of any State, local government, or agency thereof or of the United States on behalf of such government or agency; or (6) if permitted by rule of the agency

any proceeding not conducted pursuant to section 7 or 8 of the Administrative Procedure Act, by an officer or regular full-time employee of a corporation or other organization on its behalf.

The adoption of the definitions in the Administrative Procedure Act not only simplifies the bill but is significant for present purposes because those definitions limit the bill. Thus “agency proceeding, defined in the Administrative Procedure Act and hence applicable where used in this bill, means only a regulatory proceeding and therefore does not include advisory functions, commercial-type transactions with agencies (such as some of the work of customhouse brokers), or mere applications or requests for information. Similarly an agency” does not include the customs courts or public authorities composed of representatives of parties. Express exemption of the Tax Court has been included to demonstrate the proper interpretation of the Administrative Procedure Act in this regard.

The definition of practice is basic to the whole bill. “Regularly appearing, participating, or offering” eliminates occasional instances in which attorneys or others appear before administrative agencies as an incident to some other proper activity. (See also the last sentence of section 5 below). "On behalf of others” eliminates the appearance of a person on his own behalf to give data or to express views if an agency will otherwise permit him to do so in a given proceeding. “For a consideration” exempts religious, fraternal, benevolent, philanthropic, charitable, labor, veterans, and other organizations of a nonprofit nature in their legitimate fields of endeavor. "Agency proceeding," as explained in the previous paragraph, means only a regulatory proceeding.

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"As the whole or part of a profession, calling, business, or trade" again emphasizes that the regulated activities are those in which persons engage as a business or profession.

The final sentence of the section enumerates six situations in which the bill does not apply. But, of course, in any of them an agency, within the scope of its powers, may modify these exemptions. The latter are also in many respects merely a specification of exemptions which would follow in any event from the general language of the definition of “practice” as set forth in the previous paragraph. (1) "As a witness" is self-explanatory. (2) “For a limited or special purpose” is designed to take care of those situations in which a person appears not as a formal party for all procedural purposes but merely to present data or views with the permission of the agency involved. Examples are the appearances of boards of trade or chambers of commerce to present, much in the fashion of a witness, the general positions they have taken as to a given matter. Farm cooperatives or labor unions may similarly appear to give evidence or state views. Where they are full parties, as in the case of proceedings brought against them by name, they are normally represented by counsel. (3) An appearance by an individual on his own behalf” would include those persons who in the contemplation of law stand in the stead of any individual. Thus an individual may be represented in an appropriate case by his parent, guardian, administrator, trustee, and so on. (4) The appearance of a partner on behalf of a partnership is traditional and arises out of the legal nature of partnerships. (5) The appearance of public officials for public purposes is an apparent necessity. (6) If not exempted by the provisions discussed above, corporate or organizational appearances through officers or employees are limited to proceedings in which sections 7 and 8 of the Administrative Procedure Act do not apply. The reasons for this limitation are that, in the first place, the proceeding is a so-called formal one in which there is a presiding officer and a record is being made much in the fashion of a court proceeding. Secondly, the record is that upon which judicial review may be had so that the proceeding is in effect a part of the court process. However, even then the limitation need not be taken as precluding corporate or organizational appearances by officers or employees because the latter may be admitted to such practice under section 5 of the bill and in certain circumstances under section 6 of the bill.

Credentials Committee

Sec. 3. There shall be established and operative (as the President shall provide by Executive order in conformity with this Act) a Credentials Committee of five members who shall be designated by the Attorney General, serve without compensation, issue certificates of admission and renewals thereof, and perform other functions required by this Act. Three shall be a quorum. Four shall be designated from among officers then serving in the executive branch by and with the consent of the Senate. One shall be an attorney engaged in the private practice of law representative of the legal profession. Not less than three shall hold or

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