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Representation by Counsel at Agency Adjudications

Representation by counsel is not a universal right.  However, rules of natural justice implies right of legal representation.  Common law did not guarantee representation by counsel to persons involved in administrative proceedings.

A person compelled to appear in person before an agency is entitled to be accompanied, represented, and advised by counsel.[i] A party can be represented by other qualified representative if the agency permits him/her.  The Administrative Procedure Act, 5 USCS § 555(b), grants a plaintiff the right to employ counsel if s/he desires.  At the same time, the government is not obligated to provide a claimant with counsel before the administrative agency in a civil case.

According to 5 USCS § 500, a member in good standing of the bar of the highest court of a state can apply for representing a person before an agency.  Accordingly, the attorney applying must file a written declaration to the effect that the attorney is qualified to represent before the agency.  Additionally, the attorney will have to show that he/she is authorized to represent his/her client.  However, qualifications prescribed in 5 USCS § 500 do not apply to practice before the U.S. Patent and Trademark Office.

In order to represent a person before the Internal Revenue Service of the Treasury Department, qualification to practice as a certified public accountant is required.  The certified public accountant should also file a declaration to the effect that s/he is currently qualified to the post of public accountant, and also s/he is authorized to represent his/her client before the Treasury Department.[ii]

Federal Administrative Procedure Act does not prevent a non-attorney or a non-certified public accountant to represent before an agency provided, agency rule permits.[iii] Additionally, former employee of an agency is prohibited from making representation before the agency.[iv] Membership in the reserves or the National Guard does not bar an otherwise qualified individual from practicing before an agency.  Moreover, a person qualified to represent in agency is not barred on the ground that s/he is a member of reserves or National Guard.[v]

If the appearance is sought, the notice of proceedings should be given to the person making representation.  Any notice or written communication to the party for hearing must be given to the representative on his/her appearance before the agency and filing declaration.  If the representation is by more than one person, agency may give notice to any one representative.[vi].  However, Administrative Procedure Act is silent on the procedure to be followed in case of appearance by non attorney or non-certified public accountant.  In such circumstances discretion is with the agency to prescribe rules for appearance.

A Social Security claimant has both a statutory and a regulatory right to receive notice that s/he may obtain the assistance of counsel or that of a non-attorney representative during the administrative review of his/her application for an award of benefits.[vii]

Regulation and conduct of proceedings in agency are provided in 5 USCS § 500(d)(2).  An agency prescribing rules for admission to practice before the agency, may also frame rules for discipline and disbarment of the representatives.  In order to exclude a member from practicing before the agency, his/her contemptuous and disruptive conduct must be established.

Statutory right to counsel provided under 5 USCS § 500 can be waived by the party.  There is no rule to the effect that a party’s case will be adversely affected due to the lack of effective representation.  Every administrative decision is supported by strong evidence, even in the absence of representation.  In the absence of representation the administrative law judge need to be more conscious to bring forth all relevant facts and circumstances before giving the judge’s decision.

Common law position regarding right to counsel is as follows:

  • There is no universal/absolute right to counsel
  • Legal representation is desirable and the exercise of discretion by tribunal should favor it; and
  • There may be some exceptional circumstances where participation of counsel is inimical to the functioning of the tribunal.[viii]

[i] 5 USCS § 555(b).

[ii] 5 USCS § 500(a)(2)(c).

[iii] 5 USCS § 500(d)(1)..

[iv] 5 USCS § 500(d)(3).

[v] 5 USCS § 502.

[vi] 5 USCS § 500.

[vii] 42 USCS § 406(c), Collado v. Astrue, 2009 U.S. Dist. LEXIS 78053 (S.D.N.Y. 2009).

[viii] Administrative Law: Cases, text and materials By David J. Mullan

Inside Representation by Counsel at Agency Adjudications