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Right to Counsel in Agency Adjudications

A person compelled to appear in person before an agency is entitled to be accompanied, represented, and advised by counsel.[i] If the agency permits, the person can also be represented by other qualified representative.  Moreover, an interested person if business permits, may appear for a party before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding.  It is also provided that each agency shall proceed to conclude a matter presented to it with due regard for the convenience and necessity of the parties or their representatives.

5 USCS § 555(b) does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding.  5 USCS § 554 (b) further provides that, in fixing the time and place for hearings, due regard must be given for the convenience and necessity of the parties or their representatives

However, the right to counsel in an administrative proceeding does not mean that counsel must be provided by the agency.  It only means that a party, if s/he desires, must be allowed to retain an attorney.  Moreover, the government is not obligated to provide a claimant with counsel before the administrative agency in a civil case.  Additionally, government is not required to provide appointed counsel to an indigent appearing in an administrative proceeding.  By advising a party the right of counsel and by providing him/her the list of free and economical legal services, the agency safeguards party’s statutory right to representation.  Additionally, administrative agency allows reasonable time to secure the presence of the representative.

An alien facing civil deportation proceedings has no constitutional right to the appointment of counsel at government expense under U.S. Constitution.  However, Congress has granted an alien the privilege of representation by counsel of his/her choice at his/her own expense.  .An alien has a right to receive due process in deportation proceedings.[ii] Accordingly, right to counsel is interpreted to mean the right to counsel of one’s own choice.[iii]

[i] 5 USCS § 555(b).

[ii]American Refugees v. Immigration & Naturalization Service, 795 F.2d 1434 (9th Cir. Cal. 1986), U.S. Const. amend. V

[iii]Backer v. C.I.R., 5 Cir., 275 F.2d 141, 144 (1961).

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