Regulating Representatives in Agency Adjudicative Proceedings

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Agencies can promote ethical practices by adopting rules of conduct for attorneys and other representatives in adjudication.

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Many federal agencies conduct adjudicative proceedings and permit parties to those proceedings to be represented by attorneys or others. Almost fifty agencies have rules governing the participation and conduct of these representatives—a number which has steadily increased since the mid-20th century.

Agency rules governing representatives in adjudicative proceedings address many topics, including who may serve as a representative, what rules of conduct apply to these representatives, and how the agency enforces the rules of conduct.

Last fall, I served as a researcher for an Administrative Conference of the United States (ACUS) project to examine the nature of these rules and how they work in practice, and then to make recommendations about how agencies might improve existing rules or whether they should adopt new ones. This project built upon my prior study, “The Laws of Agency Lawyering,” and culminated in a set of ACUS recommendations entitled, “Regulation of Representatives in Agency Adjudicative Proceedings.”

My research involved a series of interviews with a select group of eight agencies that have rules of conduct for representatives in adjudicative matters. The agencies whose officials I interviewed offered a representative range of agency types and regulatory approaches.

My research led to a report that describes agency rules concerning qualifications for attorney and non-attorney representatives, the structure and content of agency rules of conduct for representatives, and the procedures for enforcing these rules. The report also addresses the accessibility of these rules, agency guidance concerning them, the frequency of disciplinary actions taken, and the publication of disciplinary orders. In addition, the report includes an appendix that compiles the most commonly addressed topics in existing agency standards of conduct, with citations to agency rules on these topics.

A key finding in the report is that great variety exists among the agencies in their rules of conduct. The differences span many dimensions, including whether agencies permit non-attorney representatives (and who may qualify), how agencies label their rules, where they choose to locate them in the Code of Federal Regulations, whether agencies incorporate other rules of conduct or create their own, what topics agency rules address, how agencies enforce their rules, and what sanctions they impose for violations.

Based on the findings from my research, ACUS adopted several recommendations offering options for agencies to consider when adopting or modifying rules governing representatives. In addition, the recommendations identify best practices for ensuring that rules are shared widely and understood by representatives, parties, and the public.

ACUS groups its recommendations under seven headings.

First, ACUS recommends that agencies “consider adopting rules governing the participation and conduct of representatives in adjudicative proceedings to promote the accessibility, fairness, integrity, and efficiency of those proceedings.”

Second, ACUS advises agencies that have decided to adopt rules of conduct for representatives to consider several factors: whether to draft their own rules or to adopt those implemented by other authorities or organizations; what topics their rules might address; and whether to harmonize rules within an agency or across agencies.

Third, ACUS recommends that agencies specify in their rules of conduct the procedure the agency will use to respond to an allegation of a violation. In its recommendation, ACUS includes a list of topics that these procedural rules should address.

Fourth, ACUS asks agencies to include in their rules of conduct the actions they will take if an agency determines that a violation has occurred, including, for attorneys, referral to other authorities or reciprocal discipline.

Fifth, ACUS advises agencies to consider what rules to apply to non-attorney representatives permitted to practice before the agency. In particular, ACUS recommends that agencies determine whether these rules should be the same as those for attorney representatives or modified in some ways.

Sixth, ACUS recommends several practices for increasing transparency of agency rules of conduct. These recommendations include using an agency’s website to publish the following: rules or links to rules using a clearly identified and easily located heading; qualifications for representatives and a summary of the disciplinary process; explanatory materials such as comments or illustrations; and disciplinary actions taken.

Finally, ACUS notes that it will consider whether to publish model rules of conduct for representatives practicing before agencies.

Attorney and non-attorney representatives who practice before agencies perform an important service in providing effective advocacy for their clients and helping to ensure the just and efficient operation of agency adjudications. Agency rules of conduct for these representatives can in turn ensure that these representatives conform to the highest ethical and professional standards.

This ACUS project has taken an important first step toward improving the form, content, and enforcement of agencies’ rules of conduct governing representatives in adjudicatory proceedings. Agencies can improve the transparency and effectiveness of their rules by following the ACUS recommendations and guidelines.

George M. Cohen

George M. Cohen is an associate dean and professor at the University of Virginia Law School. He served as the author of the research report underlying the ACUS recommendations discussed in this essay.