페이지 이미지
PDF
ePub

be eligible for credentials under section 5. For the purposes of this Act the Credentials Committee shall appoint a Secretary, have such staff, other assistance, or advisory services or committees as may be required, incur obligations, make rules, issue individual notices by mail requiring the renewal of credentials from time to time, fix compensatory admission and renewal fees, and require the submission of necessary information from any person or agency. Receipts shall be deposited in the Treasury of the United States as a trust fund to be drawn upon for the purposes of this Act as the Credentials Committee may direct; and there is hereby appropriated to such fund for such purposes for the fiscal year in which this Act is approved, and for each fiscal year thereafter, the unexpended balance in such fund at any time.

This section contemplates that a central Credentials Committee shall be created as is often done in the States respecting admissions to the bar. In each of the several States there is a centralized court system headed by a supreme court. But in the Federal Administrative system there is no central or top administrative agency to perform the same function. For that reason it is necessary to create one by this bill for purposes of admissions to practice. However, since its functions will soon become routine, it is to be an uncompensated and ex-officio body as is customary in State practice. It is important that its members shall be high officials in the executive branch. It is also important that the legal profession be represented as is done in the States. Within these limitations as expressed in section 3 of the bill, it is proper that the detail of the set-up be provided by Executive order and thereby remain flexible. The Credentials Committee thus may also be placed in some appropriate department (such as the Department of Justice) for socalled housekeeping purposes.

In order to limit admissions to those who seriously desire to pursue such a calling, and in order to make the system self-supporting, as is often done in such cases, fees should be fixed by the Credentials Committee from time to time on a compensatory basis and be made available to defray expenses. Since applicants for such admissions will run into many thousands, such fees will, however, be modest if not merely nominal. Moreover, in order to prevent the roll of practitioners from becoming out of date and thus causing difficulty in administering the system proposed, it is necessary that the Credentials Committee have authority to require renewals by mail as occasion may require. The authority to "require the submission of necessary information from any person or agency” does not amount to the subpena power but means merely that (1) Federal agencies shall submit relevant data on request and (2) applicants for admission to practice must produce necessary information or run the risk of being denied the credentials they seek.

Unauthorized Practice Prohibited Sec. 4. No person shall practice, hold himself out as a practitioner, or in any other manner assume so to practice before any agency without credentials or except as authorized under this Act. Nothing in this Act shall be deemed to permit any person to practice law in any place or to hold himself out impliedly or expressly as authorized to do so. No person shall in any manner or form engage in the solicitation or procurement of employment (involving practice) for another holding credentials hereunder, nor shall holders of credentials participate therein. Practice as attorneys subject to section 5 shall be governed by the canons of professional ethics generally applicable to members of the bar of courts. Agents admitted to practice pursuant to section 6 shall be subject to the same requirements (including limitations on solicitation, advertising, and division of fees) adapted and promulgated in the form of rules by the credentials committee. Individuals admitted to practice under section 5 or 6 shall honor, and presiding and deciding officers in any agency proceeding shall conduct themselves in accordance with, the canons of judicial ethics generally applicable to members of the judiciary.

The first sentence of section 4, when coupled with the definitions in section 2 above, is the enforcement clause for the whole bill. The second sentence is simply a declaration of the obvious fact that an admission to Federal administrative practice does not authorize a nonlawyer to practice law. The third sentence, prohibiting solicitation through a third party, would not, of course, preclude anyone from recommending, or referring business to, a practitioner upon request and without compensation. The adoption or adaptation of standards of conduct by the last three sentences of the section are necessary because, at least from a technical point of view, the recognized canons of professional and judicial ethics are inapplicable to administrative practice both because it is administrative and because many practitioners are not lawyers. In the absence of such provision, very few administrative agencies have attempted to state or enforce standards of conduct. A large part of the difficulty has been the simple lack of statutory authority for agencies to have and enforce such standards. The bill seeks to remedy this lack.

Credentials of Attorneys

Sec. 5. Any individual shall be given credentials as an attorney by the credentials committee upon (1) the production of evidence that he is a member in good standing of the bar of the highest court of any State, Territory, possession, the District of Columbia, or of any Federal court; and (2) his written statement that he is engaged in the practice of law in such jurisdiction or, if that is not the case, submittal of reasonable and satisfactory evidence of character and fitness. Possession of credentials under this section shall entitle the holder to practice before any agency except that any agency which pursuant to statute has for more than 7 years prior to the adoption of this Act required attorneys to demonstrate additional special technical competence may continue to do so under reasonable rules, and no credentials authorizing practice before such agency shall be issued until such agency shall have certified to the credentials committee that the applicant has met such requirements. Any agency may provide that an attorney without credentials may act for or represent another solely in connection with a particular agency proceeding.

Under the existing system of administrative practice, lawyers who are already admitted to practice before the highest courts of the land must secure admission to numerous administrative agencies as well. Such repetitious admission requirements for lawyers as such are unreasonable, unnecessary, and provocative of much complaint. However, granted that some form of control is needed for the protection of the public and the administrative agencies, section 5 of the bill provides for one centralized admission. The first sentence of the section restates the general practice in State and Federal courts as well as in some administrative agencies. The exception in the second sentence is designed to preserve the Patent Office system whereby, unlike other agencies with admission requirements, competence and experience beyond that of a member of the bar in good standing has long been required, is expressly authorized by existing law (35 U. S. C. 11), and is generally accepted by the bar. The last sentence provides, as is common in the courts, for admission to practice for the purpose of a particular or occasional case where there is ground for so doing and no evasion of the requirements is apparent.

Credentials for Agents Sec. 6. So long as and to the extent that any agency shall find it necessary in the public interest and in the interest of parties to agency proceedings before it to authorize practice by individuals not subject to section 5 and provides by generally applicable rule therefor, any such individual may be admitted hereunder to practice as an agent before such agency. The Credentials Committee shall issue credentials to applicants under this section if (1) such agency, after such examination or investigation as it may find necessary for the purpose, determines and certifies that the applicant possesses necessary competence as well as undertanding of ethical responsibilities and (2) the Credentials Committee is satisfied that the applicant is of good moral character and repute. The credentials committee shall also issue credentials to individuals who present a certificate from any agency that, prior to the effective date of this section, they have been authorized to practice before such agency and are in good standing there. Under this section no individual shall be admitted to practice in proceedings to which sections 7 and 8 of the Administrative Procedure Act apply or in which the governing statute provides only for appearances in person or by attorney or counsel except that, in either case, any agency may certify such individuals for such practice before it where it has done so by rule requiring investigation and examination of applicants for more than 7 years prior to the adoption of this Act.

As is presently the case, the bill leaves the admission of nonlawyers largely to the individual agencies concerned. Since nonlawyers may not have had specialized training and may not have been otherwise licensed for professional duties, the second sentence of the section requires an agency to determine whether, in its informed judgment and after such examination or investigation as may be necessary, the appli

ܕܕ

cant possesses such scientific training, experience, special competence, peculiar technical ability, knowledge of legal requirements, understanding of ethical responsibilities, or other qualifications as may be requisite to the adequate performance of the duties of a practitioner for the protection of clients and the attainment or preservation of their rights.

It is to be noted that the requirement in sections 5 and 6 of “good standing" and "good moral character and repute" may, in the light of section 3 authorizing the use of advisory services, be ascertained in whole or part by the Credentials Committee on the basis of records or certificates of organizations or agencies engaged in licensing (upon examination and showing of good standing, moral character, and repute) and discipline of professional personnel such as lawyers or certified public accountants.

Previously licensed nonlawyer practitioners will be entitled, by the third sentence of section 6, to new credentials under this bill enabling them to continue in their practice. However, once so given credentials, they will thereafter and in all other respects be subject to the responsibilities, disabilities, and requirements applicable to those receiving credentials for the first time under the bill.

The last sentence of the section imposes two limitations. The first is that, where statutes permit representation only by "attorney” or "counsel,” nonlawyers are not given the right to practice under this bill. The second is that nonlawyers shall not, under this bill, be admitted to practice in formal proceedings subject to sections 7 and 8 of the Administrative Procedure Act (see the comment respecting this subject in section 2 above). However, in either case, if for 7 years or more (as in the case of the Interstate Commerce Commission) an agency has been examining and licensing nonlawyers for such practice, it may continue to do so under this bill. It is to be noted that this provision does not change the situation of accountants in tax matters before the Bureau of Internal Revenue because practice there is neither limited by statute to attorneys or counsel nor are the proceedings subject to sections 7 and 8 of the Administrative Procedure Act. The latter comprehend only those proceedings held pursuant to statutory requirement of a hearing and not otherwise exempted from such sections, in which rules of evidence are applied, cross-examination is a matter of right, and a record is made as a basis for decision and judicial review. These provisions do not in any event apply to other proceedings even though argument or views are heard and a record is in fact made for convenience as, for example, in informal proceedings of the Securities and Exchange Commission where lawyers or accountants present views.

Disciplinary Proceedings Sec. 7. Every agency conducting proceedings subject to this Act shall by rule provide that for good cause any person holding credentials shall (1) be censured, or (2) be suspended from practice in the particular case in which misconduct occurs or from all cases before it for a period not to exceed ninety days, or (3) be subjected to proceedings for the revocation of credentials as hereinafter provided in this section and with or without suspension from practice by the agency concerned pending the final determination thereof. Where cause therefor appears and unless the holder consents to an order of revocation and surrenders all his credentials, the agency shall (1) in the case of any individual holding credentials under section 6 issue an order revoking his credentials and (2) in the case of an individual holding credentials under section 5 either (a) refer the matter to appropriate and existing State or Federal judicial disciplinary authorities or (b) issue an order revoking his credentials if applicable statutes expressly provide both for such action by the agency and for judicial review thereof. Any agency order of censure, suspension, or revocation of credentials shall be entered only upon opportunity for hearing and upon the record thereof; and all such orders shall be subject to judicial review. Notice of all such proceedings shall be given the credentials committee, and, for the purposes of this section, it shall act in lieu of agencies in cases in which misconduct is unrelated to any agency proceeding and no interested agency undertakes to act in the

case,

The first sentence of this section recognizes for the first time in statutory language that it is appropriate for administrative agencies to utilize a variety of disciplinary powers. The courts have long done so, whereas statutes relating to the administrative process have been barren or fragmentary on the subject. The second sentence recognizes the necessary difference in the exercise of the ultimate form of discipline in the case of the nonlawyer as compared with the lawyer. The former has not been admitted to practice by courts and hence is not subject to judicial discipline. The latter has been so admitted, there exists a ready forum for disciplinary proceedings, and any such action solely by an administrative agency is bound to have effect upon a lawyer's standing before the bar. Consequently, it is the design of this bill that the right to administrative practice shall, for appropriate cause, be revoked by administrative agencies in the case of nonlawyers and by judicial authorities in the case of lawyers except in the single case of the Patent Office, where by statute provision is made for both revocation by the administrative agency of a lawyer's right to practice and for judicial review thereof (35 U. S. C. 11). The bill would thus supersede the present authority of the Treasury Department (5 U. S. C. 261), the Veterans' Administration (38 U. S. C. 102), and the Interior Department (5 U. S. C. 493).

However, as stated above, agencies would be given the express authority to censure, to suspend for a limited period, to wholly revoke credentials or institute proceedings therefor, and in the latter case to suspend pending the final determination thereof. For the first time an administrative agency would be authorized by statute to refer cases to the appropriate State or Federal judicial disciplinary authorities. In the case of either a nonlawyer or a lawyer any absolute order of censure, suspension, or revocation by an administrative agency must be entered after an opportunity for hearing and upon the record thereof (thereby becoming subject to section 5 of the Administrative Procedure Act) and

« 이전계속 »