Administrative Conference of the United States

SSA DISABILITY BENEFITS PROGRAMS:
THE DUTY OF CANDOR AND SUBMISSION OF ALL EVIDENCE

Final Report: Oct. 15, 2012

This report was prepared by the Office of the Chairman of the Administrative Conference of the
United States. The views expressed do not necessarily reflect those of the Council, the members
of the Conference, or its committees.

CONTRIBUTORS

PAUL VERKUIL
CHAIRMAN
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

MATTHEW LEE WIENER
EXECUTIVE DIRECTOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

GRETCHEN JACOBS
RESEARCH DIRECTOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

AMBER WILLIAMS
ATTORNEY ADVISOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

KATHLEEN CLARK
WASHINGTON UNIVERSITY IN SAINT LOUIS SCHOOL OF LAW
CONSULTANT TO THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

TABLE OF CONTENTS
Introduction ................................................................................................................................................... 1
I.

Adjudication of Disability Benefits Claims: Process, Statute & Regulations...................................... 3
A.

Summary of SSA’s Adjudication Process ........................................................................................ 3

B.

Legal Standards for Submission of Evidence ................................................................................... 5
1.

Social Security Act ....................................................................................................................... 5

2.

Current Regulations ...................................................................................................................... 6

C. SSA’s Recent Rulemaking Initiatives Relating to Representative Conduct & Evidence
Submission Standards ............................................................................................................................... 9

II.

1.

Regulatory Efforts in the 1990s: Conduct Requirements for Representatives .............................. 9

2.

Regulatory Initiatives in the 2000s: Requirements for Submission of Evidence ........................ 13

Perspectives on Information Disclosure: Standards in Other Agencies .............................................. 15
A.

Adjudicative Processes ................................................................................................................... 16
1.

Patent and Trademark Office ...................................................................................................... 16

2.

Department of Veterans Affairs .................................................................................................. 18

B.

Other Types of Agency Programs ................................................................................................... 20
1.

Securities and Exchange Commission ........................................................................................ 20

2.

Internal Revenue Service ............................................................................................................ 22

3.

False Claims Act ......................................................................................................................... 22

III.

Civil Litigation in Federal Court: Discovery & Disclosure Requirements ..................................... 23

A.

1993 Amendments: Imposition of Mandatory Disclosure .............................................................. 23

B.

2000 Amendments: Refinements to Mandatory Disclosure ........................................................... 28

IV. Ethics Standards That Require Disclosure of Information ................................................................. 30
A.

Ethics Considerations for Attorney Representatives....................................................................... 31
1.

Sources of Governing Law ......................................................................................................... 31

2.

The Confidentiality Mandate & Its Exceptions .......................................................................... 31

3. Relationship Between Professional Rules & Federal Agency Standards for Attorneys that
Practice Before Them.......................................................................................................................... 34
B.
V.

Ethics Considerations for Non-Attorney Representatives .............................................................. 35
SSA Regulatory Options to Enhance Disclosure of All Evidence Relating to Disability Claims ..... 37

A.

Guiding Principles .......................................................................................................................... 37

B.

Options ............................................................................................................................................ 39

Appendix A: Methodology ....................................................................................................................... A-1
Appendix B: Comparison of Text of SSA Rulemaking Initiatives Re: Representative Conduct &
Submission of Evidence (1995-2006) ....................................................................................................... A-2
Appendix C: Letter from National Organization of Social Security Claimants’ Representatives ........... A-3
i

Appendix D: Letter from National Association of Disability Representatives ........................................ A-7
Appendix E: SSA Disposition Count by Representation (FY 2005-2011) .............................................. A-9
Appendix F: Excerpts of American Bar Association Model Rules of Professional Conduct (2002) ..... A-10
Appendix G: Excerpts of Federal Rule of Civil Procedure, Rule 26 (1993) ......................................... A-12
Appendix H: GAO Chart Depicting VA Disability Claim Appeal Process ........................................... A-14

ii

INTRODUCTION
The Social Security Administration’s (“SSA”) disability adjudication system decides
millions of claims annually. As the Supreme Court noted in Richardson v. Perales:
the system’s structure and procedures, with essential determinations
numbering into the millions, are of a size and extent difficult to
comprehend.1
That observation was made over 40 years ago. The Perales case established the validity
under the due process clause of deciders (then hearing examiners, now Administrative Law
Judges (“ALJs”)) engaging in a “three-hat role” of impartial decider while “act[ing] as an
examiner charged with developing the facts.”2 Matthews v. Eldridge later pointed out that, “[t]he
[ALJ] hearing is nonadversary and the SSA is not represented by counsel.”3 The ALJ also
carries a special obligation in Social Security proceedings to develop the record fully and fairly.4
Over the years, the number of claimants represented—by attorneys and by non-attorneys—has
increased dramatically. In this situation, the ALJ’s role in managing and balancing the process
has become ever-more complex.
One important question that has arisen is whether SSA could improve its adjudicatory
process if claimants and their representatives were required to disclose—prior to adjudicatory
proceedings conducted by administrative law judges—complete documentary evidence related to
their disability claim (especially medical evidence in the form of medical records of treating
physicians), even if potentially adverse to their claims. SSA has the authority to regulate the
submission of evidence and the conduct of representatives (whether they are attorneys or nonattorneys).5 Under SSA’s existing regulations, however, it is not clear whether claimants (and
their representatives) must disclose adverse information and under what circumstances they do
so.
With regard to adverse, documentary evidence, claimants’ representatives have
contended that: (1) the existing regulations do not clearly impose an affirmative duty on
claimants (or their representatives) to disclose adverse evidence in the absence of a specific
request from SSA to do so, and that (2) without a clear regulatory-based disclosure obligation,
some attorney-representatives may refrain from doing so to avoid facing difficult questions of
legal ethics under their state bar rules. SSA proposed rules in the mid-1990s, and, again, in the
mid-2000s, to address these issues, but no final rules emerged from these rulemaking efforts that
impose specific obligations on claimants (or their representatives) to submit adverse evidence.6
1

402 U.S. 389, 399 (1971).
Id. at 410.
3
424 U.S. 319, 339 (1976); see also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) (“Social Security proceedings are
inquisitorial rather than adversarial.”).
4
E.g., Byes v. Astrue, 687 F.3d 913, 915-16 (8th Cir. 2012).
5
42 U.S.C. § 406(a)(1) (2012).
6
See, e.g., Soc. Sec. Admin., Administrative Review Process for Adjudicating Initial Disability Claims; Final Rules,
71 Fed. Reg. 16,424, 16,437 (Mar. 31, 2006); Soc. Sec. Admin., Administrative Review Process for Adjudicating
Initial Disability Claims; Notice of Proposed Rulemaking, 70 Fed. Reg. 43,590 (July 27, 2005); Soc. Sec. Admin.,
Federal Old-Age, Survivors, and Disability Insurance and Supplemental Security Income for the Aged, Blind, and
2

1

The issue is important because too often ALJs must decide a claimant’s entitlement to
benefits—in particular, whether the claimant is disabled—without knowledge that the decision is
based on an incomplete record. The job of the ALJ can be further complicated because the file
remains “open” in that medical or other records can be added to it as the case progresses through
the hearing process.7
Recent news accounts have documented instances in which
representatives, having collected the claimant’s medical records, disclose only certain documents
that support a claim of benefits while withholding documents that do not.8 The existing
regulations do not clearly proscribe this conduct by representatives—at least so long as it falls
short of evidence tampering, fraud, and other such conduct that quite directly would violate
federal statutory and regulatory law. Given the way the regulations are written, representatives
can observe professional rules mandating the vigorous representation of their clients without
submitting all adverse evidence to the ALJ.9
SSA commissioned the Administrative Conference of the United States (“Administrative
Conference” or “Conference”) to: (1) study the agency’s existing statutory and regulatory
standards (including past rulemaking efforts) regarding the duty of candor and submission of all
evidence by claimants (and their representatives) in the Social Security disability claims process;
(2) survey relevant disclosure and professional conduct requirements from other federal
agencies, as well as other legal resources (such as the Federal Rules of Civil Procedure (“FRCP”
or “Federal Rules”) that may provide guidance on submission of evidence to tribunals whether or
not it may be considered supportive of the disclosing party’s claim or position; and (3) suggest
options for improving SSA’s adjudicatory process and potential regulatory approaches should
the agency elect to undertake future rulemaking relating to the duty of candor or submission of
information.
This study represents a collaborative effort between the Office of the Chairman of the
Administrative Conference and the Conference’s consultant on this project, Professor Kathleen
Clark. We reviewed the statutes, regulations, and other publicly-available information relating to
federal agencies to learn the similarities and differences between SSA’s disability benefits
programs and these agencies’ disclosure and professional conduct standards for adjudications or
other administrative programs; reviewed law review articles, treatises, and other written
materials addressing ethics issues that arise in the context of disclosure standards in
administrative processes; and conducted legal research on a variety of related topics. This
literature review and research was supplemented by interviews (both in-person and by phone)
Disabled; Standards of Conduct for Claimant Representatives; Final Rules, 63 Fed. Reg. 41,404, 41,407 (Aug. 4,
1998); Soc. Sec. Admin., Federal Old-Age, Survivors, and Disability Insurance and Supplemental Security Income
for the Aged, Blind, and Disabled; Standards of Conduct for Claimant Representatives; Notice of Proposed
Rulemaking, 62 Fed. Reg. 352 (Jan. 3, 1997).
7
See Soc. Sec. Admin., Eliminating the Decision Review Board; Reestablishing Uniform National Disability
Adjudication Provisions; Final Rules, 76 Fed. Reg. 24,802 (May 3, 2011) [hereinafter Final Rule Reestablishing
Uniform Nat’l Disability Adjud. Provisions].
8
Damien Paletta & Dionne Searcey, Two Lawyers Strike Gold In The U.S. Disability System, WALL ST. J., Dec. 22,
2011, available at http://online.wsj.com/article/SB30001424052970203518404577096632862007046.html.
9
See The Social Security Administration: Is It Meeting Its Responsibilities to Save Taxpayer Dollars and Serve the
Public? Hearing Before the S. Finance Comm., 112th Cong. (May 17, 2012) (testimony of Comm’r Astrue noting,
in response to a question from Sen. Thune about the Wall Street Journal article, “that there’s [not] a requirement for
all relevant evidence to be provided to the judge. Right now, that is not the law.”).

2

with attorneys, legal academics, and government officials at the Departments of Commerce,
Justice, and Veterans Affairs, as well as numerous informal discussions with SSA officials.
This report lays out the options available to SSA if it wishes to expressly impose an
affirmative obligation on claimants (and, derivatively, their representatives) to submit all
documentary evidence related to their disability claims with the view that a complete record
leads to better, and more fair, adjudication. The report begins in Part I with a brief description of
the administrative process by which individuals seek disability benefits, identifies SSA’s existing
statutory and regulatory authority for imposing affirmative disclosure obligations on claimants
and representatives, and summarizes SSA’s rulemaking efforts to date to impose such disclosure
obligations. Part II discusses how other federal agencies have imposed similar disclosure
obligations in the administrative context, and Part III details how the federal courts have done so
in civil litigation—in both contexts without violating traditional norms of professional conduct
governing an attorney’s representation of his or her client. Part IV then discusses ethical and
other standards of conduct for attorney and non-attorney representatives more generally in
various types of adjudicative proceedings. Finally, Part V lays out the options available to SSA.
In doing so, Part V gives due regard to the thoughtful comments of two professional associations
representing claimants’ representatives submitted in connection with this project at the request of
SSA—the National Organization of Social Security Claimants’ Representatives (“NOSSCR”)
and the National Association of Disability Representatives (“NADR”). Those comments are
reproduced in Appendices C and D, respectively.
I.
A.

ADJUDICATION OF DISABILITY BENEFITS CLAIMS: PROCESS, STATUTE &
REGULATIONS

Summary of SSA’s Adjudication Process

The Social Security Act (“Act”) created two programs—Social Security Disability
Insurance (“SSDI”) and Supplemental Security Income (“SSI”)—to provide monetary benefits to
persons with disabilities who satisfy these programs’ respective requirements.10 Individuals may
qualify for regular payments from the federal government if, among other things, they can show
that they have an impairment that is recognized by SSA as a disability.11 Every year, millions of
people apply for these disability benefits,12 and SSA has created what may be the world’s largest
adjudicative system to process these claims.13
The disability benefits adjudication process begins with the filing of an application with a
SSA field office. Individuals seeking disability benefits may file (and pursue) their own claims
10

42 U.S.C. §§ 401(b), 1381 (2012).
42 U.S.C. § 423(d) (2012).
12
In fiscal year 2011, over 3.2 million people applied for disability benefits. SSA’S FY 2011 PERFORMANCE AND
ACCOUNTABILITY REPORT 8 (2011), available at http://www.ssa.gov/finance/2011/Full%20FY%202011%20
PAR.pdf.
13
Securing the Future of the Disability Insurance Program: Hearing Before the H. Subcomm. on Soc. Sec., 112th
Cong. (June 27, 2012) (statement of Michael Astrue, Comm’r, Soc. Sec. Admin.) [hereinafter Astrue June 2012
Testimony], available at http://www.ssa.gov/legislation/testimony_062712.html; see also Heckler v. Campbell, 461
U.S. 458, 461 n.2 (1983) (quoting JERRY L. MASHAW ET AL., SOCIAL SECURITY HEARINGS AND APPEALS, xi (1978));
see also Appendix E: SSA Disposition Count by Representation (FY 2005-2011), A-9 (Sept. 28, 2012) (chart
provided by SSA detailing annual number of dispositions from 2005 to 2011).
11

3

or they may choose to enlist the assistance of a representative, who may or may not be an
attorney. Over the last several decades, the number of claimants with representatives has risen
dramatically.14 For example, according to a recent study by the Social Security Advisory Board
(“SSAB”), the percentage of claimants represented by attorneys at ALJ hearings has nearly
doubled since 1977 (from about 35% to 76%), while use of non-attorney representatives has
experienced a steady increase since 2007.15 In recent years, however, the percentage of
represented claimants (relative to total annual dispositions) has remained fairly stable. 16 As of
2011, non-attorneys represented claimants in about 22% of disability cases.17 If SSA makes a
decision in favor of a claimant represented by an attorney or an “eligible non-attorney”
representative that results in the payment of past due benefits, and a fee agreement is approved,
SSA will pay the representative a fee award equal to 25 percent of the past-due benefits (less a
special assessment) up to a cap set by SSA.18
Once an application is received by the SSA field office, the case is sent to a federallyfunded state Disability Determination Service (“DDS”) for the initial steps in the adjudication
process. In most states, a team consisting of a state disability examiner and a state agency
medical or psychological consultant makes an initial determination of eligibility on behalf of
SSA.19 If an individual’s claim is denied—in most states—the claimant may seek
reconsideration20 by another DDS team, composed of a different examiner and medical or
psychological consultant. 21
If the claim is denied again, the individual may appeal his or her case to a SSA ALJ.22
The ALJ reviews the case de novo and may award benefits prior to the hearing based on the
record or decide the claim after an adjudicative hearing.23 A claimant may appeal an adverse
ALJ decision to the SSA Appeals Council, which makes a determination based on the record that
had been before the ALJ (including the ALJ hearing).24 A claimant whose application for
benefits is finally denied by SSA may seek judicial review in a federal district court based on the
full administrative record and subject to the substantial evidence review standard.25

14

SOCIAL SECURITY ADVISORY BOARD, ASPECTS OF DISABILITY DECISION MAKING: DATA AND MATERIALS 60 fig.
55. (2012), available at http://www.ssab.gov/Publications/Disability/GPO_ Chartbook_FINAL_06122012.pdf.
15
Id.
16
See Appendix E, supra note 13.
17
Id.
18
20 C.F.R. § 404.1730 (2012); see also 20 C.F.R. § 416.1530 (2012).
19
42 U.S.C. §§ 405(b), 1383(c)(1)(A) (2012).
20
Astrue June 2012 Testimony, supra note 13.
21
Id.
22
Astrue June 2012 Testimony, supra note 13; 42 U.S.C. §§ 405(b)(1), 1383(c)(1)(A) (2012).
23
Astrue June 2012 Testimony, supra note 13; 20 C.F.R. §§ 404.929, 416.1429 (2012).
24
20 C.F.R. §§ 404.967-404.968, 416.1467-416.1468 (2012). Note that “[t]he Act does not require administrative
review of an ALJ’s decision. If the AC issues a decision, it becomes [SSA’s] final decision. If the AC decides not
to review the ALJ’s decision, the ALJ’s decision becomes [SSA’s] final decision.” Astrue June 2012 Testimony,
supra note 13.
25
42 U.S.C. §§ 205(g), 405(g), 1383(c)(3), 1631(c)(3) (2012). A claimant must exhaust all administrative remedies
before appealing to the federal court. The claim is appealable in federal court only after the AC has issued a
decision or has refused to review the case.

4

As the volume of disability claims filed annually has risen,26 so too have the number of
disability awards.27 And given the increased role of both legal and non-legal representatives in
what had been a largely ALJ-directed non-adversary process, some have raised questions
whether the role of representatives has increased the number of unjustified awards. 28 As will be
discussed below, SSA has attempted to modify its process for adjudicating disability claims to
account for increases in the number and complexity of claims, as well as the rising number of
represented claimants.29
B.

Legal Standards for Submission of Evidence

During the disability claim adjudication process, claimants generally have the burden of
proving that they qualify as disabled.30 Both claimants and their representatives must also avoid
filing false claims or otherwise engaging in fraud.31 Less clear is whether, and under what
circumstances, claimants (and their representatives) have an obligation to fully disclose evidence
to SSA that relates to their claim. Must claimants (and their representatives) only provide SSA
with evidence that supports their disability claim? Or do they need to submit or disclose all
evidence related to their claim, even if some such evidence may be viewed as adverse to their
claim? The following parts describe the existing statutory and regulatory guidance on these
issues.
1. Social Security Act
The Act authorizes the imposition of a civil monetary penalty of $5000 against anyone
who makes a statement or representation for use in determining eligibility for disability benefits
and:
omits . . . or otherwise withholds disclosure of . . . a fact which the person knows
or should know is material to the determination of . . . benefits . . . , if the person
knows, or should know, that the statement or representation with such omission is
false or misleading or that the withholding of such disclosure is misleading.32
While the statute defines “material fact” broadly to include any fact that “the Commissioner of
Social Security may consider in evaluating whether an applicant is entitled to benefits,”33 it also
26

See SOCIAL SECURITY ADVISORY BOARD, supra note 14, at 6 figs. 1a & 1b (statistics on SSDI and SSI
applications filed annually from 1975 to 2010); Appendix E, supra note 13 (annual case dispositions from 2005 to
2011).
27
See SOCIAL SECURITY ADVISORY BOARD, supra note 14, at 15 fig. 10a.
28
Damian Paletta & Dionne Searcey, supra note 8.
29
See infra Part I.C.
30
20 C.F.R. § 404.1512(a) (2012) (“In general, you have to prove to us that you are blind or disabled.”).
Independent of the claimant’s obligation to carry his or her disability claim, the ALJ also bears a duty to develop a
full record upon which to base a decision. E.g., Byes v. Astrue, 687 F.3d, at 915-16; Thornton v. Schweiker, 663
F.2d 1312, 1316 (5th Cir. 1981); see also Perales, 402 U.S. at 410 (noting ALJ duty to investigate facts and develop
arguments both for and against granting benefits).
31
20 C.F.R. §§ 404.549(1)-(3), 404.471, 416.1340(1)-(3) (2012).
32
42 U.S.C. § 1320a-8(a)(1)(C) (2012).
33
42 U.S.C. § 1320a-8(a)(2) (2012) (emphasis added). Compare this broad definition of materiality with the
narrower definition adopted by the PTO, infra note 131.

5

prohibits the omission or withholding of material facts only where the individual knows or
should know that the omission or withholding is “misleading.”34 The statute also states that:
The Commissioner of Social Security shall have full power and authority to make rules
and regulations and to establish procedures, . . . which are necessary or appropriate to
carry out [the] provisions [of this title], and shall adopt reasonable and proper rules and
regulations to regulate and provide for the nature and extent of the proofs and evidence
and the method of taking and furnishing the same in order to establish the right to
benefits hereunder.35
The Commissioner thus has the power to issue regulations establishing procedures for the
production of evidence, which forms the basis for adjudicating disability claims. Moreover, the
Commissioner has the “power to [require] the production of any evidence that relates to any
matter under investigation.”36 If SSA were to decide to clarify that claimants and their
representatives have an obligation of candor and to submit certain evidence, these provisions
would seem to provide the statutory authority for such a position.
2. Current Regulations
SSA’s current regulations regarding the obligation of claimants and their representatives
to disclose evidence that would be adverse to a disability claim appear to be ambiguous. The
regulations specifically require a claimant and his or her representative to provide evidence that
supports his or her disability claim, but are less clear regarding any obligation to provide
evidence that would not support the claim.
a. Standards for Claimants
SSA regulations explain to claimants that they bear the burden of demonstrating that they
qualify for benefits: “You must provide medical evidence showing that you have an
impairment(s) and how severe it is during the time you say that you are disabled.” 37 That
regulation also instructs claimants to “bring to [SSA’s] attention everything that shows that you
are blind or disabled.”38 These mandates suggest that claimants must provide evidence that
supports their claim for disability, but not evidence that would undermine such a claim.
34

An earlier version of this statute did not include the provision limiting its application to those who know or should
know that the omission or withholding of information is misleading. Professor Robert Rains has observed with
respect to the earlier version that it “is at least arguable that a representative violates [that] provision if he or she
submits favorable evidence to an ALJ but withholds other evidence that he or she deems unfavorable to the claim.”
Robert E. Rains, The Myth of the State-Bar Bar to Compliance with Federal Rules on Production of Adverse
Evidence, 92 CORNELL L. REV. 363, 373 (2007) [hereinafter Myth of the State-Bar Bar].
35
42 U.S.C. § 405(a) (2012).
36
42 U.S.C. § 405(d) (2012) states in full:
For the purpose of any hearing, investigation, or other proceeding authorized or directed under this title, or
relative to any other matter within the Commissioner’s jurisdiction hereunder, the Commissioner of Social
Security shall have power to issue subpoenas requiring the attendance and testimony of witnesses and the
production of any evidence that relates to any matter under investigation or in question before the
Commissioner of Social Security.
37
20 C.F.R. §§ 404.1512(c), 416.912(c) (2012).
38
20 C.F.R. § 404.1512(a) (2012) (emphasis added); see also 20 C.F.R. § 416.912(a) (2012).

6

On the other hand, that same regulation includes language suggesting a duty to disclose
not just information that helps show that the claimant is disabled, but also any information that
helps SSA assess whether the claimant is disabled. Claimants must provide “medical and other
evidence that [SSA] can use to reach conclusions about your medical impairment(s) and, if
material to the determination of whether you are disabled, its effect on your ability to work.”39
This provision could be read to support a requirement that claimants disclose information
adverse to their claim of disability. NOSSCR has pointed to this provision as support for its
contention that a “claimant is already required to disclose material facts in his or her claim for
benefits.”40 However, we do not understand NOSSCR’s view of the existing regulatory
reference to “material” factual evidence to encompass medical records or other information that
may be considered adverse to the claimant’s disability claims.
Claimants are also required to provide “evidence, without redaction, showing how your
impairment(s) affects your functioning during the time you say that you are disabled, and any
other information that [SSA] need[s] to decide your claim.”41 SSA adopted this “without
redaction” requirement in 2006 in lieu of a more robust disclosure requirement it had proposed
the previous year.42 The regulation does not define “without redaction,” and one commentator
has characterized this lack of definition as “troubling.”43 On the one hand, the phrase could be
interpreted narrowly to mean that if a claimant provides a particular document, he or she must
provide the entire document without any redactions.44 Or, on the other hand, it could be
interpreted broadly to include all records related to a claimant’s impairment. For example,
would a claimant be free to pick and choose among the documents in his or her hospitalization
records, or would he or she be required to disclose hospitalization records in their entirety? 45
b. Standards for Representatives
Representatives who see their role as one of pure advocacy—assisting clients to obtain
benefits within the bounds of the law—can point to several regulations that support their view.
Representatives are required “to obtain the information and evidence that the claimant wants to
submit in support of his or her claim and forward the same to” SSA.46 This provision seems to
envision that a representative’s role is to help a claimant obtain benefits rather than to help SSA
determine whether a claimant is eligible for benefits.
The regulation also requires
39

Id.
Letter from Nancy G. Shor, Exec. Dir. Nat’l Org. of Soc. Sec. Claimants’ Reps., to Amber Williams, Admin.
Conf. of the U.S. 2 (Sept. 14, 2012) (citing 20 C.F.R. §§ 404.1512(a), 416.912(a)) (copy attached as Appendix C:
Letter from Nat’l Org. of Soc. Sec. Claimants’ Reps., A-3 (Sept. 14, 2012) [hereinafter NOSSCR 2012 Letter].
41
20 C.F.R. §§ 404.1512(c), 416.912(c) (2012) (emphasis added).
42
See discussion infra Part I.C.2.
43
Myth of the State-Bar Bar, supra note 34, at 382, n.113. Professor Rains suggests that it is “common for attorneys
not to submit—and for ALJs not to want—everything in a claimant’s medical record” due to the volume of the
record or the irrelevancy of certain materials. Id.
44
Id. (“Unquestionably, an attorney who submits altered evidence is subject to disciplinary proceedings as well as
possible criminal proceedings.”).
45
Id. (“When a claimant has been hospitalized, for instance, it is common for his or her representative to obtain and
submit only some of the records, such as admission and discharge summaries and operation records, and withhold
other lengthy documents such as nursing notes.”)
46
20 C.F.R. §§ 404.1740(b)(1), 416.1540(b)(1) (2012) (emphasis added).
40

7

representatives to “assist the claimant in bringing to [SSA’s] attention everything that shows that
the claimant is disabled or blind.”47 This language could be interpreted to provide a one-way
ratchet, permitting representatives to assist the claimant in coming forward with information that
helps his or her claim, rather than providing all the information that would aid SSA in assessing
eligibility. Finally, the regulations require a representative to “assist the claimant in providing,
upon [SSA’s] request, evidence” that is relevant to his or her claim.48 This provision suggests
that while the representative must help a claimant comply with SSA’s requests for evidence, he
or she does not otherwise have an affirmative obligation to disclose evidence to SSA.
Therefore, while it is clear that representatives may not make false or misleading
statements or presentations,49 it is less clear whether they have an obligation to submit all
evidence, including adverse evidence, to SSA. The regulations require representatives to “be
forthright in their dealings with” SSA,50 but the term “forthright” is not defined. Whether this
obligation simply requires truthfulness or whether it contemplates a more active role in
developing a full record is an open question for some. The regulations do not explicitly address
whether representatives have an obligation to disclose to SSA evidence that may potentially be
contrary to a client’s disability claim.
The regulations do further instruct representatives to “[c]onduct his or her dealings in a
manner that furthers the efficient, fair and orderly conduct of the administrative decisionmaking
process.”51 Indeed, the regulation requires representatives to “comport themselves with due
regard for the nonadversarial nature of the proceedings by complying with [SSA] rules and
standards, which are intended to ensure orderly and fair presentation of evidence and
argument.”52 But it is not clear what (if any) legal significance SSA believes stems from “the
nonadversarial nature of the proceedings.” In some sense, nonadversarial and ex parte
proceedings have common roots and at least one state bar has issued an opinion stating that
representatives should conduct themselves as if the proceedings before SSA are ex parte.53 This
is an important connection since ex parte proceedings impose legal ethics standards that require a
claimant’s attorney to provide all information that would be material to a claim—both favorable
and unfavorable.54 In addition, the Supreme Court of the United States has characterized SSA
proceedings as “inquisitorial,”55 which emphasizes the judge-directed nature of the SSA
47

Id. (emphasis added).
20 C.F.R. §§ 404.1740(b)(2), 416.1540(b)(2) (2012) (emphasis added).
49
Representatives must not:
Knowingly make or present, or participate in the making or presentation of, false or misleading
oral or written statements, assertions or representations about a material fact or law concerning a
matter within our jurisdiction.
20 C.F.R. §§ 404.1740(c)(3), 416.1540(c)(3) (2012).
50
20 C.F.R. §§ 404.1740(a)(2), 416.1540(a)(2) (2012).
51
20 C.F.R. §§ 404.1740(b)(3), 416.1540(b)(3) (2012).
52
20 C.F.R. §§ 404.1740(a)(2), 416.1540(a)(2) (2012) (emphasis added).
53
Ala. State Bar Ass’n Disciplinary Comm’n, Op. 1993-06 (1993), available at http://www.alabar.org/ogc/
fopDisplay.cfm?oneId=79 (“It is the opinion of the Disciplinary Commission that Rule 3.3(d) of the Rules of
Professional Conduct of the Alabama State Bar applies to lawyers participating in hearings before a Social Security
Administrative Law Judge adjudicating social security disability, retirement, and survivor claims.”)
54
See discussion infra Part IV.A.2.a.; see also MODEL RULES PROF’L CONDUCT 3.3(d) (1982); Henderson v.
Shinseki, 131 S. Ct. 1197 (2011); infra note 138 (describing Department of Veterans Affairs (“VA”) proceedings as
ex parte and equating them with SAA proceedings).
55
Sims, 530 U.S. at 111; see also 20 CFR § 404.900(b) (2012).
48

8

disability process. As the Perales case emphasized, in his or her three-hat role, the ALJ
represents the government’s interests, while acting as the fact-finder and “develop[ing]
arguments both for and against granting benefits.”56 However these proceedings are
characterized (as nonadversarial, ex parte, or inquisitorial), the duty of representatives can be
heightened but it still needs to be adequately clarified.
C.

SSA’s Recent Rulemaking Initiatives Relating to Representative Conduct &
Evidence Submission Standards

This part describes SSA’s past attempts to clarify and communicate its expectations of
the duties of claimants and the role of their representatives.
1.

Regulatory Efforts in the 1990s: Conduct Requirements for Representatives
a. The 1997 Notice of Proposed Rulemaking

On January 3, 1997, SSA issued a notice of a proposed rulemaking (“NPRM”), which
imposed obligations on representatives to produce evidence.57 No regulations of this nature had
been proposed before, and while SSA acknowledged that most claimant representatives acted in
an exemplary manner, SSA’s experience with representatives who engaged in misconduct
provided the impetus for these proposed rules.58 With these proposed regulations, SSA intended
to “establish standards of conduct and responsibility for persons serving as representatives and
further define [SSA’s] expectations regarding [representative] obligations to those they represent
and to [SSA].”59
The agency had spent several years prior to 1997 compiling feedback from claimants and
eliciting opinions from the representative community to help craft its proposed rule. 60 Common
claimant complaints included the manner and timing in which representatives submitted
evidence, or failed to submit evidence altogether.61 SSA sent a draft rule in 1995 to 33
representative organizations. The agency received 92 responses.62
The 1995 draft language requested that a representative “[e]xercise diligence in
developing the record on behalf of his or her client by obtaining and submitting, as soon as
possible, all information and evidence intended for inclusion in the record.”63 It also requested
that representatives “[p]romptly comply, at every stage of the administrative review process,
with [SSA’s] requests for information and evidence”64 and provide evidence relating to the
“matters at issue.”65
56

Sims, 530 U.S. at 111; see also Perales, 402 U.S. at 400-01, 410.
62 Fed. Reg., supra note 6.
58
Id. at 353
59
Id. at 352.
60
SSA gathered 600 complaints made by claimants from 1988 to 1997 regarding representative malfeasance and
beginning in 1995, elicited feedback from 33 organizations that comprised the representative community. Id. at 353.
61
Id.
62
Id.
63
Id. at 354.
64
Id. at 355.
65
Id. at 354.
57

9

The representative community’s most prominent concern with the 1995 draft involved an
apparent dichotomy between the traditional role of an attorney in providing zealous advocacy
and protecting confidential client information, and the draft language’s proposed rules of
conduct. Some responses stated that such a rule was unnecessarily redundant, since attorneys
were already governed by their state bar’s code of conduct.66 Furthermore, many felt that this
rule “might place them in violation of their own [s]tate bar rules.”67
In the comments accompanying its 1997 NPRM, SSA attempted to assuage the first
concern by asserting the need for a uniform system of conduct. Not only do bar ethics rules vary
from state to state, but they also do not apply to non-attorney representatives. 68 Moreover, if
misconduct does occur, disciplinary actions before state bars against attorney representatives
may require the production of confidential, personal information. However, federal statutes,
such as the Social Security Act and the Privacy Act, may prohibit the disclosure of such
information, therefore precluding state bars from conducting disciplining proceedings. 69
To address the representative community’s concern about confidentiality, when SSA
formerly issued its 1997 proposed rule, it revised the 1995 draft rule’s language. Instead of
disclosing information, a representative was required to notify SSA when a claimant does not
consent to disclosure.70 SSA, however, strongly affirmed that representatives must not
“deliberate[ly or] purposeful[ly] withhold [. . .] information or evidence”; such conduct would
not only violate state bar rules, but also federal law.71 SSA further affirmed that the proposed
rulemaking “require[d] the representative to comply with [SSA’s] requests made under statutory
authority for full and accurate disclosure of material facts to the same extent that the claimant
[was] required to do so.”72 Whether the representative failed to comply would be determined on
a totality of the circumstances, case-by-case basis.73
One of the other main critiques of the draft rule had to do with its perceived vagueness
and ambiguity. Some thought terms such as “diligence” and “matters at issue”74 vague, while
others thought the substance of the entire rule vague.75 SSA responded to both prongs of the
vagueness concern by modifying the language in the proposed rule and by assuring the
community that while its regulations could not define with specificity every example of possible
misconduct, SSA intended to address allegations of wrongdoing on a case-by-case basis, taking
into account the circumstances and factors that led to the allegation.76

66

Id.
Id. at 355.
68
Id. at 354.
69
Id.
70
Id. at 355.
71
Id.
72
Id.
73
Id.
74
Id. at 353-54.
75
Id. at 354
76
Id. at 353-354.
67

10

Yet another concern involved the draft rule’s assignment of duties to develop the record.
Some believed that the language imposed a broad standard that put an unfair burden upon
representatives when the responsibility for developing the record resided with the agency. 77 In
the proposed rule, SSA continued to insist that the claimant, and therefore the claimant’s
representative, “take a more active role in establishing entitlement or eligibility” for disability
benefits.78 SSA wanted to ensure that “the claimant’s evidence was available for inclusion in the
record when the claim was ready for adjudication.”79
In its NPRM, the agency included explanations preceding the 1997 proposed rules. The
agency explained that these proposed rules introduced affirmative duties by which a
representative must submit evidence to SSA. The representative would be required not only to
furnish medical, vocational, and other relevant information, but also to provide such information
“even if it is ostensibly unfavorable to the claimant, or provide notification by the representative
that the claimant does not consent to its release.”80 The new obligations would apply to
representatives whose claimants sought disability benefits under either SSDI or SSI, title II or
title XVI, respectively. The language was identical in each context:
A representative shall:
(1) Promptly obtain all information and evidence which the claimant wants to submit in
support of the claim and forward the same for consideration as soon as practicable,
but no later than the due date designated by the Agency, except for good cause
shown;
(2) Comply with [SSA’s] requests for information or evidence at any stage of the
administrative review process as soon as practicable, but no later than the due date
designated by the Agency, except for good cause shown. This includes an obligation
to:
(i)

Provide, upon request, identification of all known medical sources, updated
information regarding medical treatment, new or corrected information
regarding work activity, other specifically identified information pertaining to
the claimed right or benefit or notification by the representative after
consultation with the claimant that the claimant does not consent to the release
of some or all of the material; and

(ii)

Provide, upon request, all evidence and documentation pertaining to
specifically identified issues which the representative or the claimant either
has within his or her possession or may readily obtain, or notification by the
representative after consultation with the claimant that the claimant does not
consent to the release of some or all of the material.81

77

Id. at 354.
Id.
79
Id.
80
Id. at 357.
81
Id. at 359, 360.
78

11

b. Public Comments on the 1997 Proposed Rule
Although the representative community expressed many of the same concerns in
response to the 1997 proposed rulemaking as it had when responding to the 1995 draft,82 the
concerns crystallized around two areas: vagueness and an attorney’s traditional role. In
particular, the American Bar Association (“ABA”), NOSSCR, and other representative
organizations believed that the proposed rules were too broad and ambiguous and would conflict
with state bar rules.83
First, some groups feared that the standards would put an improper burden on
representatives, requiring them to develop the record and therefore potentially subject them to
unreasonable requests from SSA.84 The proposed rules allowed SSA to require a representative
to produce any documents, at any time, with no “limit [as to] the scope, the relevance or the
frequency of the requests.”85 Further, the groups highlighted the fact that SSA would not pay the
costs for obtaining medical reports requested by a representative.86 Therefore, the cost of
requiring the representative to acquire medical documents could cause a claimant to choose not
to be represented by counsel.87
Second, representative organizations harbored deep unease about the apparent dichotomy
between an attorney’s role as advocate and the duties to disclose information to SSA.
Representative groups were concerned that communicating a claimant’s declination to disclose
information would cause SSA to draw adverse inferences about the nondisclosure. 88 In essence,
the attorney’s communication would “red flag” the claimant’s nondisclosure and cause the
agency to come to its own negative conclusions about why the report was withheld.89 In
addition, the community expressed concern that communicating a claimant’s nondisclosure
would put attorneys in violation of state bar rules of client confidentiality and subject them to
sanction from those state bars.90 NOSSCR specifically asserted that state bars’ codes of conduct
and professional responsibility overrode any other ethical responsibility imposed upon
attorneys.91
82

63 Fed. Reg., supra note 6, at 41,407.
Id.; Letter from Robert Evans, Dir., Am. Bar. Ass’n, Gov’t Aff. Off., to Shirley Chater, Comm’r, Soc. Sec.
Admin. (Feb. 28, 1997) (on file with SSA) [hereinafter ABA 1997 Letter], Letter from Nancy Shor, Exec. Dir., Nat’l
Org. of Soc. Sec. Claimants’ Reps., to John Callahan, Acting Comm’r, Soc. Sec. Admin. (Mar. 3, 1997) (on file with
SSA) [hereinafter NOSSCR 1997 Letter], Letter from Louis Finkelberg, Chair, Los Angeles Cnty. Bar Ass’n, Soc.
Sec. Sec. to Shirley Chater, Comm’r, Soc. Sec. Admin. (Feb. 26, 1997) (on file with SSA) [hereinafter Los Angeles
County Bar Association 1997 Letter].
84
63 Fed. Reg., supra note 82, at 41,411.
85
Id. at 41,412; see also ABA 1997 Letter, supra note 83.
86
Some state bar rules prohibited attorneys from advancing costs to claimants, compelling them to pass those costs
to their clients. Los Angeles County Bar Association 1997 Letter, supra note 83; NOSSCR 1997 Letter, supra note
83.
87
Los Angeles County Bar Association 1997 Letter, supra note 83.
88
63 Fed. Reg., supra note 82, at 41,413, NOSSCR 1997 Letter, supra note 83.
89
ABA 1997 Letter, supra note 83; Los Angeles County Bar Association 1997 Letter, supra note 83; NOSSCR
1997 Letter, supra note 83.
90
63 Fed. Reg., supra note 82, at 41,413.
91
NOSSCR 1997 Letter, supra note 83.
83

12

c. The 1998 Final Rule
When SSA issued its final regulations in 1998, it chose to withdraw the proposed
disclosure requirements.92 In doing so, SSA still reaffirmed its intent to introduce a more active
role for the claimant in establishing his or her right to benefits.93 The agency explained that the
proposed rules had not been intended to shift the responsibility to develop the record from the
agency to the claimant or the claimant’s representative.94 Rather, the proposed rules were
intended to reflect the reality of current practices and the expectations of the agency. 95 The final
rules that SSA adopted in 1998 did obligate the representative to assist the claimant’s submission
of evidence.96 However, the controversial requirements to submit evidence, upon request, of
“the claimant’s medical treatment, vocational factors or other specifically identified matters,” as
well as “all evidence . . . which the representative or claimant already has or may readily obtain,”
and to communicate when a claimant refused to consent to disclosure, were deleted.97 The final
rule’s language therefore “more closely track[ed] the existing regulatory requirements that
explain a claimant’s duties and responsibilities with regard to submitting evidence and providing
information.”98
2. Regulatory Initiatives in the 2000s: Requirements for Submission of Evidence
a.

The 2005 Notice of Proposed Rulemaking

SSA did not attempt to revisit this issue again until it issued a NPRM on July 27, 2005.99
This time, instead of introducing obligations under the “rules of conduct and standards of
responsibility for representatives” section, which applied to representatives, SSA proposed
changes to the “evidence” section, which applied to claimants and only derivatively to claimant
representatives. SSA proposed that, when the claimant requests a hearing, the claimant (and the
claimant’s representative), submit all the evidence available to him or her.100 This submission
would include both evidence that supports the claim and evidence that “might undermine or
appear contrary” to the claim.101 That requirement also applied to evidence that the claimant
obtained after filing the claim, up until twenty days before the hearing; SSA “generally [would]
not consider” evidence submitted outside of that timeframe.102 The proposed rule stated: “(c)
You must provide evidence showing how your impairment(s) affect(s) your functioning during
the time you say that you are disabled, and any other information that [SSA] need[s] to decide
92

63 Fed. Reg., supra note 82, at 41,406.
Id. at 41,412.
94
Id. at 41411-12.
95
Id. at 41,411.
96
Id. at 41,406.
97
Id.
98
Id.; see Appendix B: Comparison of Text of SSA Rulemaking Initiatives Re: Representative Conduct &
Submission of Evidence (1995-2006), A-2 (chart comparing text of SSA’s rulemaking initiatives, from 1995
through 2006, relating to standards for representative conduct and submission of evidence).
99
70 Fed. Reg., supra note 6.
100
Id. at 43,602.
101
Id.
102
Id.
93

13

your claim, including evidence that you consider to be unfavorable to your claim.”103
b.

Public Comments on the 2005 Proposed Rule

The feedback SSA received in 2005 echoed the concerns SSA had received nearly a
decade earlier: complaints about ambiguity and inconsistency with attorneys’ ethical and
professional obligations. NOSSCR, in particular, found the proposed rules to be ambiguous. 104
NOSSCR questioned whether “evidence” referred to that evidence already “obtained or all
evidence that exists, regardless of the cost, time, or effort to obtain it.”105 NOSSCR also took
issue with the word “consider” in the context of a claimant providing evidence “that you
consider to be unfavorable to your claim” and asserted that such a word was too subjective.106
NOSSCR expressed concern regarding the burden this requirement placed on the claimant and
questioned whether the claimant’s noncompliance could be cause for penalty, especially in the
case of noncompliant claimants who have “mental and cognitive impairments.”107
Again, the representative community also took issue with the asserted inconsistency
between the SSA’s proposed regulations and an attorney’s ethical obligations. The ABA noted
that the proposed rule’s breadth could not only be interpreted to require representatives to
disclose irrelevant facts, but also confidential matters that the claimant did not wish revealed.108
Several representative organizations commented that a representative has a SSA-imposed duty to
establish a claimant’s claim, but the submission of all evidence would require the representative
to simultaneously undermine that claim.109 The attorney would be caught between the
regulation’s disclosure obligations and a “sworn duty to obey the professional rules of the
jurisdiction in which the attorney is licensed to practice.”110 Such a violation of a state bar’s
ethics rules could subject attorneys to discipline.111 The Houston Bar Association foresaw the
possibility that a claimant would not be candid with his or her attorney for fear that the attorney
would disclose that information to SSA.112
c. The 2006 Final Rule

103

Id. at 43,607, 43,621.
Letter from Nancy Shor, Exec. Dir., Nat’l Org. of Soc. Sec. Claimants’ Reps., to Jo Anne Barnhart, Comm’r,
Soc. Sec. Admin. 13 (Oct. 25, 2005) (on file with SSA) [hereinafter NOSSCR 2005 Letter].
105
NOSSCR 2005 Letter, supra note 104, at 13 (emphasis in original).
106
Id.
107
Id.
108
Letter from Michael Green, Pres., Am. Bar. Ass’n, to Jo Anne Barnhart, Comm’r, Soc. Sec. Admin. 4 (Sept. 27,
2005) (on file with SSA) [hereinafter ABA 2005 Letter]; The Houston Bar Association shared a similar concern.
Letter from Paul Burkhalter, Chair, Houston Bar Ass’n, to Jo Anne Barnhart, Comm’r, Soc. Sec. Admin. 5 (Oct. 24,
2005) (on file with SSA) [hereinafter Houston Bar 2005 Letter].
109
ABA 2005 Letter, supra note 108, at 5; NOSSCR 2005 Letter, supra note 104, at 14; Comments from Jim Shaw,
Pres., Nat’l Ass’n of Disability Reps., on Comm’r of Soc. Sec’s. Proposed Improvements to the Disability
Determination Process 4 (Oct. 25, 2005).
110
ABA 2005 Letter, supra note 108, at 5.
111
ABA 2005 Letter, supra note 108, at 5, Houston Bar 2005 Letter, supra note 108, at 6, NOSSCR 2005 Letter,
supra note 104, at 14.
112
Houston Bar 2005 Letter, supra note 108, at 5-6.
104

14

In the end, SSA chose to adopt an amended version of its proposed rule. SSA
“remove[d] language requiring claimants to submit evidence adverse to their claims.” 113 SSA
acknowledged that such a requirement was too confusing. 114 Instead, the agency modified the
rule to require that claimants submit evidence, such as medical documents, without redaction.115
The new 2006 requirement read: “(c) You must provide evidence, without redaction, showing
how your impairment(s) affects your functioning during the time you say that you are disabled,
and any other information that we need to decide your claim.”116
Since 2006, SSA has not proposed any further revisions to either its regulation’s “rules of
conduct and standards of responsibility for representatives” or “evidence” sections. As Part II
demonstrates, other federal agencies have been successful in mandating candor from the parties
that come before them so as to ensure the receipt of an adequate factual record.117
II.

PERSPECTIVES ON INFORMATION DISCLOSURE: STANDARDS IN OTHER AGENCIES

SSA’s regulations refer to the disability adjudication process as “nonadversarial.”118
Indeed, when a claimant pursues his or her claim for disability benefits, there is no third party
appearing before (or on behalf of) the agency to oppose such claim. While some have asserted
that the SSA system is sui generis,119 there exist other administrative systems with relatively
similar structures—that is, a claimant or applicant comes before a federal agency seeking the
award of a benefit/claim, no other party has a right to appear in opposition, and an agency
official evaluates whether the requested benefit/claim should be awarded. A key issue for this

113

71 Fed. Reg., supra note 6, at 16,437.
Id.
115
Id.
116
71 Fed. Reg., supra note 6, at 16,444, 16,459; see also Appendix B, supra note 98 (chart comparing proposed
and final versions of these provisions).
117
As part of the Disability Service Improvement (DSI) initiative—promulgated in part through the rulemakings
described in this Part—the agency continued to roll out changes implementing the DSI process, as well as to monitor
the impact of these new DSI measures on the handling of initial disability claims and the administrative review
process. For example, in 2006 SSA instituted a pilot DSI program in its Boston Region. See 71 Fed. Reg., supra
note 6 (codified in scattered sections of 20 C.F.R. pts. 404, 405, 416 & 422). This pilot DSI program included rules
requiring closure of the official record once an ALJ issued his or her decision, except upon a showing of good cause.
Id. at 16,428, 16,453-54. In December 2009, SSA proposed elimination of the Boston Region’s pilot DSI program
in favor of bringing the region back in line with the rules used to adjudicate disability claims in the rest of the
country, including rules relating to ALJ hearings and closure of the record. See Soc. Sec. Admin., Reestablishing
Uniform National Disability Adjudication Provisions; Notice of Proposed Rulemaking, 74 Fed. Reg. 63,688,
63,688-89 (Dec. 4, 2009). SSA partially finalized the elimination of the pilot DSI program in the Boston Region
when, in May 2011, it issued a final rule replacing the Decision Review Board (DRB) step with Appeals Council
review. See Final Rule Reestablishing Uniform Nat’l Disability Adjud. Provisions, supra note 7, at 24,802-03.
With respect to closure of the record, however, SSA not only retained in this final rule the DSI’s closing-of-therecord provision in the Boston Region, but also noted that plans to extend these specific rules nationally were still
alive. Id.
118
20 C.F.R. § 405.1(c)(1) (2012); see also Sims, 530 U.S. at 110-11 (characterizing Social Security proceedings as
inquisitorial rather than adversarial”); Perales, 402 U.S. at 403 (“We bear in mind that [SSA] operates essentially,
and is intended so to do, as an adjudicator and not as an advocate or adversary.”).
119
Robert E. Rains, The Advocate’s Conflicting Obligations Vis-á-Vis Adverse Medical Evidence in Social Security
Proceedings, 1995 BYU L. REV. 99, 113 [hereinafter Advocate’s Conflicting Obligations] (“[I]n many ways social
security hearings are truly sui generis.”).
114

15

kind of administrative system is whether the agency decisionmaker has sufficient information to
evaluate the application.
This part explores the nature of several other federal agencies’ information disclosure
standards that are used in conjunction with their respective adjudicatory processes or other types
of agency proceedings. The first examples are federal agencies whose processes are similar to
SSA’s nonadversarial system, namely the patent application process under the Patent and
Trademark Office (“PTO”) and the adjudication process for veterans’ service-related disability
benefits under the Department of Veterans Affairs (“VA”). Both of these agencies have imposed
disclosure obligations on applicants and their representatives and have created their own regimes
for the registration and regulation of representatives. This part also discusses two other agencies,
the Securities and Exchange Commission (“SEC”) and the Internal Revenue Service (“IRS”),
which impose certain information disclosure requirements in a variety of contexts—on attorney
representatives, non-attorney representatives, and claimants—in both regulatory and
nonadversarial settings. Lastly, this part concludes with a brief discussion of the requirement
under the False Claims Act (“FCA”) that certain whistleblowers provide all material information
to the United States Department of Justice (“Justice Department” or “Department of Justice”)_
during the pendency of its investigation, participation, or prosecution of a qui tam action.
A. Adjudicative Processes
1. Patent and Trademark Office
The PTO permits an inventor either to apply for a patent himself or herself or to seek the
assistance of a representative (who need not be an attorney).120 The PTO requires all
representatives to register with the agency,121 to prove their competency and fitness,122 and to
abide by the agency’s own ethics/conduct standards for such practitioners. 123 Since attorneys are
also subject to regulation by the state bar of any jurisdiction in which they are licensed, questions
may arise concerning how to resolve any conflict between state bar-based ethics standards and
the PTO’s conduct requirements for representatives. PTO regulations preempt state bar rules
only when “necessary for the [PTO] to accomplish its federal objectives.”124 One preemption
issue that has arisen is whether PTO standards of candor preempt state bar rules on client
confidentiality.125

120

37 C.F.R. § 1.31 (2012) states:
An applicant for patent may file and prosecute the applicant’s own case, or the applicant may give
power of attorney so as to be represented by one or more patent practitioners or joint inventors,
except that a juristic entity (e.g., organizational assignee) must be represented by a patent
practitioner even if the juristic entity is the applicant.
121
37 C.F.R. §§ 11.5-11.8 (2012).
122
37 C.F.R. § 11.7 (2012).
123
37 C.F.R. §§ 10.20, 10.21, 10.30, 10.46, 10.56, 10.61, 10.76, 10.83, 10.100, 10.110 (2012).
124
37 C.F.R. § 10.1 (2012).
125
See Simone A. Rose & Debra R. Jessup, Whose Rules Rule? Resolving Ethical Conflicts During the
Simultaneous Representation of Clients in Patent Prosecution, 12 FED. CIR. B.J. 571 (2003); Todd M. Becker,
Attorney-Client Privilege Versus the PTO’s Duty of Candor: Resolving the Clash in Simultaneous Patent
Representations, 71 WASH. L. REV. 1035 (1996).

16

In the process of applying for a patent, a patent-seeker submits an application to the PTO
showing that his or her invention qualifies for a patent and provides the PTO with certain
required information.126 A patent examiner then decides whether to grant the patent.127 The
decision is based solely on the written record.128 Within this procedural context, the PTO has
asserted that the public interest requires the submission of “all information material to
patentability.”129 The PTO imposes a “duty of candor and good faith” on “[e]ach individual
associated with the filing and prosecution of a patent application . . . , which includes a duty to
disclose to the [PTO] all information known to that individual to be material to patentability.”130
Thus, in the context of the patent claims process, the duty of candor applies not just to the
inventor seeking a patent, but also to his or her non-attorney or attorney representative.131
The PTO has, by regulation, defined the scope of this duty of candor. Inventors and their
representatives have an affirmative obligation to disclose any information that is “material to
patentability,” which is defined as information that is not cumulative of information already in
the record or application and that: “(1) . . . establishes, by itself or in combination with other
information, a prima facie case of unpatentability of a claim; or (2) . . . refutes, or is inconsistent
with, a position the applicant takes in: (i) opposing an argument of unpatentability relied on by
the [PTO], or (ii) asserting an argument of patentability.”132
The PTO has thus established a duty of candor on inventors and their representatives to
submit material information relating to patent applications, regardless of whether such
information may be considered favorable or unfavorable to the application. In the case of
attorneys, when this disclosure requirement conflicts with state bar rules, the latter must give
126

35 U.S.C. § 112 (2012); see also 37 C.F.R. §§ 1.51, 1.71, 1.77 (2012).
35 U.S.C. § 131 (2012); see also 37 C.F.R. § 1.104 (2012).
128
37 C.F.R. § 1.2 (2012).
129
37 C.F.R. § 1.56(a) (2012) (“A patent by its very nature is affected with a public interest. The public interest is
best served, and the most effective patent examination occurs when, at the time an application is being examined,
the Office is aware of and evaluates the teachings of all information material to patentability.”).
130
37 C.F.R. § 1.56(a) (2012).
131
37 C.F.R. § 1.56(c) (2012).
132
37 C.F.R. § 1.56(b) (2012). In May 2011, the Federal Circuit issued an en banc opinion holding this definition of
materiality, insofar as applicable to the affirmative defense of inequitable conduct in a patent infringement action (as
opposed to the affirmative duty to disclose material information related to a patent claim), overbroad. Note that, for
present purposes, the affirmative duty to disclose material information related to a patent claim is the more relevant
type of proceeding. Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc). While
Therasense thus did not affect the validity of the PTO’s current standard for materiality relating disclosure
obligations in patent claims, the PTO nonetheless subsequently issued a NPRM proposing to narrow the definition
of materiality relating to both the duty to disclose (patent claims) and inequitable conduct (patent infringement
actions) in order to present a unitary standard that is simpler for the patent bar. Patent and Trademark Office,
Revision of the Materiality to Patentability Standard for the Duty to Disclose Information in Patent Applications;
Notice of Proposed Rulemaking, 76 Fed. Reg. 43,631, 43,634 (Jul. 21, 2011). The proposed rule would revise the
definition of information as being “material to patentability. . . if”:
(1) The [PTO] would not allow a claim if it were aware of the information, applying a
preponderance of the evidence standard and giving the claim its broadest reasonable construction;
or
(2) The patent owner engages in affirmative egregious misconduct before the [PTO] as to the
information.
Id. (describing proposed rule as embodying a “but-for-plus” materiality test). The PTO has not yet issued a final
rule.
127

17

way.133 In situations where the PTO’s candor and information disclosure mandate conflicts with
an attorney’s state bar obligations, such as the duty to preserve a client’s secrets and confidences,
the candor obligation prevails.134
2. Department of Veterans Affairs
The disability benefits program run by the VA provides an interesting counterpoint to
SSA’s disability program.135 Veterans who prove service-related disabilities may be awarded
disability compensation.136 The amount of VA benefits awarded depends on the degree of
disability.137 In order for a veteran to qualify for these benefits, he or she may be seen by a
physician on the VA staff who, among other things, may evaluate whether the veteran’s
disability is connected to previous service. When applicants go to a physician employed by the
agency, the agency retains a level of control over the disability evaluation process.138
Adjudication of veteran’s disability benefits—as with SSA’s disability benefit
programs—is grounded in a nonadversarial model. The VA’s adjudicatory “process is designed
to function throughout with a high degree of informality and solicitude for the claimant.”139 A
veteran initially applies for disability benefits at a VA regional office. 140 The VA’s process for
evaluating the application at the initial and appeal levels are “ex parte and nonadversarial.”141 As
133

See 37 C.F.R. § 10.1 (2012); see also 37 C.F.R. § 10.23(c)(10) (2012) (a practitioner may not “[k]nowingly
violat[e] or caus[e] to be violated the requirements of § 1.56,” which imposes an affirmative duty to disclose
information material to patentability); Sperry v. Florida, 373 U.S. 379 (1963) (holding that, where federal law
authorizes federal agent to act before federal tribunal, federal law preempts conflicting state bar licensing
requirements); Surrick v. Killion, 449 F.3d 520, 27-28 (3d Cir. 2006) (federal court rules preempt conflicting state
rules governing practice of law when state law obstructs federal goals). But see Schindler v. Finnerty, 74 F. Supp.
2d 253, 261 (E.D.N.Y. 1999) (finding that the state had broad authority to “regulate the conduct of patent attorneys
provided the [s]tate does not frustrate the necessary scope of practice before the PTO”).
134
37 C.F.R. § 10.57(c)(2) (2012) (“[a] practitioner may reveal [c]onfidences or secrets when permitted under
Disciplinary Rules or law or court order”); see also David Hricik, Aerial Boundaries: The Duty of Candor as a
Limitation on the Duty of Patent Practitioners to Advocate for Maximum Patent Coverage, 44 S. TEX. L. REV. 205,
259 (2002) (opining that candor helps to vindicate the federal interest in accurate patent examinations and the need
for a uniform set of rules for PTO practitioners).
135
See 38 C.F.R. § 3.4 (2012). In fiscal year 2010, the VA received more than one million disability compensation
claims. GOVERNMENT ACCOUNTABILITY OFFICE, VETERANS DISABILITY BENEFITS: CLEARER INFORMATION FOR
VETERANS AND ADDITIONAL PERFORMANCE MEASURES COULD IMPROVE APPEAL PROCESS 3–4 (2011) [hereinafter
GAO VA DISABILITY REPORT].
136
38 U.S.C. §§ 1110, 1131 (2012).
137
38 U.S.C. §§ 1114, 1134 (2012). By contrast, of course, SSA’s disability process employees a statutorily-based
all-or-nothing approach to disability. 42 U.S.C. § 423; see also Advocate’s Conflicting Obligations, supra note
119, at 102 (noting that the “all-or-nothing nature of the social security system vastly magnifies the potential adverse
consequences to the claimant of even a single medical document suggesting malingering, exaggeration, noncompliance with medical care, or simply a dispute over medical findings”).
138
By contrast, SSA generally relies on doctors who have no affiliation with SSA to evaluate the disability of SSA
claimants. 20 C.F.R. §§ 404.1513, 404.1517 (2012). Because the VA has greater access to veterans’ medical
records (through usually providing medical care itself), SSA is in a different position than the VA when requesting
medical information.
139
Henderson 131 S. Ct. at 1200-01. Indeed, in Henderson, the Justice Department argued—and the Supreme
Court did not dispute—that “the Social Security and veterans-benefit review mechanisms share significant common
attributes.” Id. at 1204.
140
GAO VA DISABILITY REPORT, supra note 135, at 3.
141
Id. at 8; see also 38 C.F.R. §§ 3.103(a), 20.700(c) (2010).

18

with SSA, the VA also has an affirmative obligation to assist veterans to develop a complete
record to substantiate their claims.142 If a veteran’s claim is initially denied, the veteran may
submit a notice of disagreement with the regional office to initiate an appeal before the Board of
Veterans’ Appeals (“BVA”).143 If a BVA Appeal is unsuccessful, the veteran may, in turn, seek
review of the BVA decision in the Court of Appeals for Veterans Claims.144
Veterans may apply for disability benefits themselves, or have someone else (an attorney,
a non-attorney claims agent, or a veterans service organization representative) assist them in the
adjudication process.145 Only individuals or entities accredited by the VA are permitted to assist
veterans in the disability claim process.146 Representatives are required to “be truthful in their
dealings with claimants and VA”147 and must not “[e]ngage in conduct involving fraud, deceit,
misrepresentation, or dishonesty.”148 The VA can cancel the accreditation of any representative
who fails to maintain accreditation requirements or who violates the VA’s standards of
conduct.149
When a veteran applies for benefits, the VA requires the disclosure of information that
supports his or her claim.150 If the VA learns that benefits were awarded on the basis of fraud, it
can reduce or discontinue those benefits.151 The VA defines fraud to include:
an intentional misrepresentation of fact, or the intentional failure to disclose
pertinent facts, for the purpose of obtaining or retaining, or assisting an individual
to obtain or retain, eligibility for [VA] benefits, with knowledge that the
misrepresentation or failure to disclose may result in the erroneous award or
retention of such benefits.152
In addition, veterans who are receiving pension benefits “because of nonservice-connected
disability or age”153 have an affirmative obligation to notify the VA of changes in circumstances
that may affect their continuing entitlement to these benefits. 154 A veteran’s disclosure could
result in adverse monetary consequences (i.e., disability benefits being reduced or revoked).
142

Henderson, 131 S. Ct. at 1200-01; 38 U.S.C. § 5103(a) (2010).
38 U.S.C. § 7105 (2012).
144
38 U.S.C. § 7252 (2012). For a useful chart summarizing the VA’s disability benefits appeals process, see GAO
VA DISABILITY REPORT, supra note 135, at 6. (copy of GAO chart reproduced in Appendix H: GAO Chart
Depicting VA Disability Claim Appeal Process, A-14).
145
38 U.S.C. §§ 5901-04 (2012).
146
38 U.S.C. § 5901 (2012); 38 C.F.R. § 14.629 (2012). By contrast, SSA does not accredit representatives who
assist claimants. See, e.g., 20 C.F.R. § 404.1705 (setting out requirements for attorney and non-attorney
representatives absent any accreditation standards).
147
38 C.F.R. § 14.632(a)(2) (2012).
148
38 C.F.R. § 14.632(c)(3) (2012).
149
38 C.F.R. §§ 14.633(b), 14.633(c)(1) (2012).
150
See 38 C.F.R. §§ 3.151, 3.201-16 (2012) (specifying claims forms to be filled out and requiring the submission of
information, including, among other items, evidence related to any disability claim previously submitted to SSA,
service records and nature of discharge, existence and age of dependents, marital status, and social security number).
151
Roberts v. Shinseki, 23 Vet. App. 416, 428-29 (Vet. App. 2010).
152
38 C.F.R. § 3.1(aa)(2) (2012).
153
38 C.F.R. § 3.3(a)(3) (2012).
154
38 C.F.R. § 3.277 (2012) (applicants for, and recipients of, need-based pensions must disclose changes in any
factor affecting entitlement to benefits, including: income, net worth, and marital status); 38 C.F.R. § 3.660 (2012)
143

19

B. Other Types of Agency Programs
1. Securities and Exchange Commission
Like the PTO and the VA, the SEC has also adopted specific regulations governing the
conduct of attorneys who practice before the agency.155 These regulations go beyond simply
imposing basic good-conduct obligations on counsel in agency proceedings, and instead require
the disclosure of a client’s material violations or fraudulent conduct internally to the client’s
chief legal officer, the chief executive officer, and, in certain circumstances, to an audit
committee of the board of directors.156 The regulations also indicate that an attorney may use
internal reports that have previously been created pursuant to his or her disclosure to the client’s
officers “in connection with any investigation, proceeding, or litigation in which the attorney’s
compliance with this [regulation] is in issue.”157 The attorney may even disclose the client’s
material violations or fraudulent conduct to the Commission, “to the extent the attorney believes
reasonably necessary”158 to accomplish one of these goals. Although the SEC has not set up its
own registration system for those attorneys, it has asserted its authority to discipline attorneys
who violate those regulations.159
After enactment of the Sarbanes-Oxley Act of 2002,160 which, in turn, followed in the
wake of the massive corporate fraud at Enron and WorldCom,161 the SEC promulgated a set of
detailed ethics standards for the attorneys who practice before it.162 One particularly
controversial regulation related to counsel’s ability to reveal confidential information to the
Commission—without the client’s consent—when reasonably necessary to prevent a material
violation of securities laws or fraudulent act or to redress the consequences of a material
violation.163 While many states’ ethics rules permit (but do not require) attorneys to disclose
(requiring certain benefit recipients to notify the VA “of any material change or expected change” in income or
other circumstances that would affect benefits entitlement or benefit award being paid); see Zyglewicz v. Nicholson,
2005 U.S. App. Vet. Claims LEXIS 289 (Vet. App. 2005) (affirming BVA decision to deny a waiver of debt created
by an overpayment of benefits because the veteran knowingly and in bad faith failed to disclose other income); see
also Jackson v. West, 1999 U.S. App. Vet. Claims LEXIS 1319 (Vet. App. 1999) (affirming BVA decision to deny
waiver of recovery of overpayment of benefits because veteran-recipient knowingly failed to report income).
155
17 C.F.R. §§ 205.1-205.7 (2012).
156
17 C.F.R. § 205.3(b) (2012).
157
17 C.F.R. § 205.3(d)(1) (2012).
158
17 C.F.R. § 205.3(d)(2) (2012).
159
17 C.F.R. § 205.6 (2012). Even before enactment of the Sarbanes-Oxely Act, the SEC had asserted its authority
to discipline attorneys who violated its conduct regulations. See Touche Ross & Co. v. SEC, 609 F.2d 570, 582 (2d
Cir. 1979) (affirming SEC’s then-existing regulatory authority for disciplining professionals appearing before
agency).
160
Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (2002).
161
Linda Chatman Thomsen & Donna Norman, Sarbanes-Oxley Turns Six: An Enforcement Perspective, 3 J. BUS.
& TECH. L. 393, 394 (2008) (“The story behind [Sarbanes-Oxley] begins with the fraud at Enron Corporation.”); id.
at 395 (noting increased public pressure for Congress to pass legislation after news broke of the “multi-billion dollar
accounting fraud” at WorldCom).
162
15 U.S.C. § 7245 (2012) (requiring the SEC to issue rules specifying minimum standards of professional conduct
for attorneys “appearing and practicing before the Commission”); 17 C.F.R. §§ 205.1-205.7 (2012) (SEC
professional conduct regulations implementing Sarbanes-Oxley Act).
163
17 C.F.R. § 205.3(d)(2) (2012); see also 17 C.F.R. § 205.2 (h)(i) (2012) (defining “material violation”). In
addition, SEC regulations permit an attorney to use otherwise confidential information “in connection with any

20

client fraud under specified circumstances, others do not. The SEC’s permission-to-disclose rule
is thus broader than legal ethics standards applicable in many states or found in the ABA’s
Model Rules of Professional Conduct.164
The SEC’s adoption of this regulation permitting the disclosure of a client’s material
violations or fraud occurred against the backdrop of long-standing bar opposition to attorneys
disclosing client fraud.165 At the time that the SEC was considering this regulation, the ABA’s
Model Rules of Professional Conduct did not contain confidentiality exceptions for client fraud
(although many states did have such exceptions),166 and the ABA had a decades-long history of
rejecting such exceptions.167 The SEC noted that attorneys in most states were already permitted
to disclose this kind of information and that any “generalized concerns about impacting the
attorney-client relationship must yield to the public interest” under certain circumstances
involving client commission of a material violation or fraud.168 The SEC’s authority in this area
continues to be contentious, especially because it involves confidential client information.169

investigation, proceeding, or litigation in which the attorney's [own] compliance with . . . [the conduct rules] is in
issue.” 17 C.F.R. § 205.3(d)(1) (2012). This provision is similar to a “self-defense” exception found in Rule
1.6(b)(5) of the Model Rules of Professional Conduct.
164
Lisa H. Nicholson, A Hobson's Choice For Securities Lawyers in the Post-Enron Environment: Striking a
Balance Between the Obligation of Client Loyalty and Market Gatekeeper, 16 GEO. J. LEGAL ETHICS 91, 136-37
(2002) (citing THOMAS D. MORGAN & RONALD D. ROTUNDA, 2002 SELECTED STANDARDS ON PROFESSIONAL
RESPONSIBILITY 134-44 (2002)) (noting that, as of the time the SEC’s permission-to-disclose regulation was
promulgated, the ABA’s Model Rules only permitted disclosure of client confidence’s to prevent death or
substantial bodily injury, and nine states still follow this approach); see also Implementation of Standards of
Professional Conduct for Attorneys, 68 Fed. Reg. 6,296, 6,310 n.92 (Feb. 6, 2003) (“The ABA’s Model Rule 1.6,
which prohibits disclosure of confidential client information even to prevent a criminal fraud, is a minority rule.”).
165
See Susan P. Koniak, When The Hurlyburly's Done: The Bar's Struggle with the SEC, 103 COLUM. L. REV. 1236,
1254-56 (2003) (describing ABA resistance to the SEC’s efforts to discipline attorneys for their involvement in
client fraud during the 1970s); Nicholson, supra note 164, at 139-45 (noting “almost twenty years and three failed
attempts” to expand confidentiality exceptions in the Model Rules); Sung Hui Kim, Lawyer Exceptionalism in the
Gatekeeping Wars, 63 SMU L. REV. 73, 77–93 (2010) (describing battles between the SEC and bar organizations
over the proper role of attorneys to “‘disrupt[] the misconduct of their client representatives’”).
166
See Nicholson, supra note 164. The ABA House of Delegates did not adopt these fraud-related exceptions
(Model Rule 1.6(b)(2) and (b)(3)) until August 2003, six months after the SEC adopted its regulation for attorneys.
Id. at 133.
167
When the ABA was overhauling its legal ethics standards in the late 1970s and early 1980s, it delegated the task
of drafting revised standards to the Kutak Commission. The Kutak Commission proposed a confidentiality
exception that would have allowed attorneys to disclose information “to rectify the consequences of a client's
criminal or fraudulent act in the furtherance of which the lawyer’s services had been used,” but the ABA House of
Delegates rejected that exception. The ABA rejected proposed confidentiality exceptions for client fraud in the
early 1980s and again in 1991. See ABA MODEL RULES OF PROF’L CONDUCT (PRE-2002) HISTORY available at
http://www.law.cornell.edu/ethics/aba/2001/history.htm. The ABA eventually adopted fraud-related exceptions to
confidentiality, but those exceptions are narrower than the SEC’s regulations. See Appendix F: Excerpts of
American Bar Ass’n. Model Rules of Professional Conduct (2002) A-10 (providing excerpts of Rule 1.6(b)(2)-(3) of
the Model Rules).
168
Securities and Exchange Comm’n., Implementation of Standards of Professional Conduct for Attorneys; Final
Rules, 68 Fed. Reg. 6296, 6311 (Feb. 6, 2003); see also Peter C. Kostant, When Zeal Boils Over: Disclosure and the
Duty of Candor of Legal Counsel in Regulatory Proceedings and the Kaye Scholer Settlement, 25 ARIZ. ST. L.J. 487,
490 (1993) (noting that “[l]awyers in a regulatory context must not interfere with the rights of the government
agency, under applicable regulations, to full, prompt and accurate disclosure”).
169
See Sung Hui Kim, Lawyer Exceptionalism in the Gatekeeping Wars, 63 SMU L. REV. 73, 77-93 (2010).

21

The SEC has also promulgated regulations that allow it to discipline the representatives
who thwart the agency’s conduct regulations; the Court of Appeals for the Second Circuit has
affirmed the SEC’s authority to “protect the integrity of its own processes.”170 Like the SEC,
SSA can also issue regulations requiring disclosure of non-privileged claimant information and
even discipline representatives who violate its regulations. SSA has the authority to impose this
type of regulation even if it were to conflict with state bar rules.171
2. Internal Revenue Service
Another example of a conflict between federally-mandated disclosure and attorney
confidentiality standards arose in the 1980s and 1990s when the IRS demanded that attorneys
comply with a law requiring the disclosure of cash transactions over $10,000.172 A federal
money laundering statute requires such reporting by “[a]ny person . . . who is engaged in a trade
or business.”173 The statute does not target attorneys, but neither does it exempt them from its
reach. Many attorneys resisted this disclosure requirement, asserting that ethical constraints
prevented them from making such disclosure; other parts of the organized bar supported those
attorneys.174 Despite such opposition from bar authorities, federal courts rejected arguments that
state bar confidentiality rules prevailed over this federal disclosure provision.175
3. False Claims Act
Another setting in which the federal government requires candor from a private party
arises under the FCA.176 Under the FCA, a potential whistleblower with information about fraud
or false monetary claims made against the United States may file a lawsuit under seal.177 The
United States has the option of intervening in the lawsuit. Intervention is typically in the
whistleblower’s interest because the likelihood of success in a FCA-based action rises
dramatically with governmental intervention.178 (The whistleblower receives a statutorily
prescribed “share of any proceeds from the action—generally ranging from 15 to 25 percent if
the Government intervenes” and “from 25 to 30 percent if it does not.”179) The FCA requires the
170

See Touche Ross, 609 F.2d at 581.
See infra Part V. Properly drafted, however, conflicts between a rule by SSA mandating affirmative disclosure of
claimant information and state bar rules would likely be modest and resolveable. Id.
172
See Rebecca Aviel, The Boundary Claim’s Caveat: Lawyers and Confidentiality Exceptionalism, 86 TUL. L. REV.
1055 (2012); Susan P. Koniak, The Law Between the Bar and the State, 70 N.C. L. REV. 1389 (1992).
173
26 U.S.C. § 6050I(a) (2012).
174
Aviel, supra note 172, at 1075 (noting “ethics opinions issued by the ABA, various state bar organizations, and
the ethics advisory committee of the National Association of Criminal Defense Lawyers[] ‘stating or strongly
suggesting’ that ethical obligations prevented the lawyers from complying with the demands of the IRS”).
175
Id. at n.94 (citing United States v. Sindel, 53 F.3d 874, 876-77 (8th Cir. 1995)).
176
31 U.S.C. §§ 3729-3733 (2012).
177
31 U.S.C. § 3730(d) (2012).
178
31 U.S.C. § 3730 (2012); see David Kwok, Does Private Enforcement Attract Excessive Litigation? Evidence
from the False Claims Act (2012), available at http://works.bepress.com/cgi/viewcontent.cgi?article=1001&
context=david_ kwok (noting a “startling poor success rate in non-intervened cases,” with 95% success rate in cases
where the government intervenes (i.e., resulting in a settlement or judgment in favor of the government), and 6%
success rate in cases where the government does not intervene). In the latter type of case, however, the relator
obtains a higher percentage of the proceeds.
179
Vermont Agency of Natural Res. v. United States, 529 U.S. 765, 769-70 (citing 31 U.S.C. §§ 3730(d)(1)-(2)
(2012)).
171

22

relator (plaintiff) to disclose to the Department of Justice “substantially all material evidence and
information” in his or her possession.180 This is intended to ensure that the Justice Department
has access to information that may dissuade it from intervening, as well as information that may
persuade it to intervene. This requirement amounts to an affirmative duty of candor when
dealing with a federal agency.

III.

CIVIL LITIGATION IN FEDERAL COURT: DISCOVERY & DISCLOSURE REQUIREMENTS

As has been addressed, and unlike civil litigation in the federal court system, the process
for adjudicating Social Security disability benefits is nonadversarial. 181 Nonetheless, there are
distinct parallels between the mandatory disclosure obligations that have been imposed by the
Federal Rules over the past twenty years and SSA’s own efforts during the same time period to
promulgate revised regulations specifying that representatives and claimants have an affirmative
obligation to submit complete information—even if such information might be viewed as
“unfavorable” to a disability claim. Review of the history underlying the FRCP’s mandatory
disclosure obligations, as well as the text of such rules, may thus provide some insights to SSA
as it considers regulatory modifications to ensure disability claims are adjudicated based on a
complete record of the claimant’s relevant medical and work history.
By the late 1970s, significant increases in the volume and complexity of federal civil
litigation led to a rising chorus for civil discovery reform.182 Critics claimed that civil discovery,
while originally conceived as a set of self-regulating pretrial disclosure tools among the parties,
was increasingly marred by sharp tactics that frustrated its usefulness, increased litigation costs,
delayed the resolution of cases, and caused the courts to expend undue amounts of time engaged
in case management.183 Though it would take more than a decade for these civil discovery
reform efforts to bear fruit, in 1993 the Federal Rules were revised to impose—for the first
time—mandatory disclosure obligations on civil litigants.
A.

1993 Amendments: Imposition of Mandatory Disclosure

The 1993 Amendments to the Federal Rules embodied a comprehensive set of revisions
governing all stages of civil litigation, from service of a complaint to entry of judgment. 184 The

180

31 U.S.C. § 3730(b)(2) (2012).
See discussion supra Part I.A.
182
See, e.g., William W. Schwarzer, The Federal Rules, the Adversary Process, and Discovery Reform, 50 U. PITT.
L. REV. 703 (1989) (making the case for reforming Rule 26 to adopt a duty-to-disclose regime); Wayne D. Brazil,
The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 VAND. L. REV. 1348 (1978)
(same).
183
See, e.g., Paul Niemeyer, Here We Go Again: Are the Federal Discovery Rules Really In Need of Amendment?,
39 B.C. L. REV. 517, 518 (1998); (describing 1938 Federal Rules as effecting shift to pretrial regime of “attorneymanaged discovery”) [hereinafter Here We Go Again], Rogelio A. Lasso, Gladiators Be Gone: The New Disclosure
Rules Compel A Reexamination of the Adversary Process, 36 B.C. L. REV. 479, 483-84 (1995) (“The authors of the
FRCP designed discovery to make information gathering a self-executing process.) [hereinafter Gladiators Be
Gone].
184
See COMMUNICATION FROM THE CHIEF JUSTICE OF THE UNITED STATES TRANSMITTING AMENDMENTS TO THE
FEDERAL RULES OF CIVIL PROCEDURE AND FORMS PURSUANT TO 28 U.S.C. 2072, H.R. DOC. NO. 74, at 108, 103d
181

23

most controversial aspect of these Amendments was a new requirement, set forth in Rule 26(a),
which imposed a mandatory obligation on parties to disclose—early in the litigation (and without
awaiting a formal discovery request)—four specified types of information:






Potential Witnesses (“the name, if known, the address and telephone number of
each individual likely to have discoverable information . . . [and] identifying the
subjects of the information”);
Relevant Documents (“a copy of, or a description by category and location of,
all documents . . . in the possession, custody, or control of the party that are
relevant to disputed facts”);
Damages Calculations (“a computation of any category of damages claimed by
the disclosing party,” including “making available for inspection and copying . . .
the documents or other evidentiary material, not privileged or protected from
disclosure, on which such computation is based”); and
Insurance Agreements (“any insurance agreement under which any person
carrying on an insurance business may be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment”).185

In mandating this new initial mandatory disclosure regime, the drafters of Rule 26 also took care
to emphasize that such obligations extended to all responsive, non-privileged information even if
potentially adverse to a party’s claims or defenses. For example, with respect to the mandated
disclosure of the identities of potential witnesses, the Advisory Committee stated:
All persons with such information should be disclosed, whether or not their
testimony will be supportive of the position of the disclosing party. As officers of
the court, counsel are expected to disclose the identity of those persons who may
be used by them as witnesses, or who, if their potential testimony were known,
might reasonably be expected to be deposed or called as a witness by any of the
other parties.186
The 1993 Amendments to Rule 26 also laid out an “administrative” framework for these
new disclosure obligations. First, with respect to timing, parties were obligated to make their
disclosures at the outset of the litigation—specifically, within ten days of the parties’ initial
scheduling or discovery conference.187 Second, a party’s mandatory disclosure obligations did
Cong., 1st Sess. (1993), reprinted in Supreme Court of the United States, Amendments to the Federal Rules of Civil
Procedure, 146 F.R.D. 401, 511 (1993) [hereinafter 1993 Amendments to the Federal Rules].
185
Fed. R. Civ. P. 26(a)(1)(A)-(D) (1993). The full text of Rule 26(a)(1), as amended in 1993, is set forth in
Appendix G: Excerpts of Fed. R. of Civ. Pro., Rule 26 (1993), A-12.
186
FED. R. CIV. P. 26(a)(1)(A) advisory committee’s note (1993) (emphasis added). The Advisory Committee made
a similar admonition with respect to disclosure of responsive documents. See id. 26(a)(1)(B) advisory committee’s
note (“As with potential witnesses, the requirement for disclosure of documents applies to all potentially relevant
items then known to a party, whether or not supportive of its contentions in the case.”) (emphasis added).
187
See FED. R. CIV. P. 26(a)(1)(D), 26(f) (1993). A party could not shirk his or her disclosure obligation by
claiming that the case was still in its formative stages (and, as a result, evidentiary development still incomplete).
As Rule 26(a)(1)(D) cautioned: “A party shall make its initial disclosures based on the information then reasonably
available to it and is not excused from making its disclosures because it has not fully completed its investigation of
the case.” Id.

24

not cease with this initial disclosure; rather, Rule 26(e) imposed an ongoing duty to supplement
or correct a prior disclosure “if a party learn[ed] that in some material respect the information
disclosed [was] incomplete or incorrect.”188 Third, the 1993 Amendments to Rule 26 took steps
to ensure accountability by requiring signatures on all mandatory disclosures by a counsel of
record (or party, if unrepresented), with such signature “constitut[ing] a certification that to the
best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the
disclosure is complete and correct as of the time it is made.”189 Rule 26(g) added “teeth” to this
certification by permitting, at the court’s discretion, imposition of “appropriate sanction” for
violation of disclosure requirements against “the person who made the certification, the party on
whose behalf the disclosure is made, or both.”190
During the rule-drafting process overseen by the Advisory Committee of the Judicial
Conference of the United States (Advisory Committee),191 the foregoing duty-to-disclose regime
faced near uniform opposition from all segments of the legal profession (e.g., practitioners, bar
associations, federal judges, public interest groups, academics, and the Department of Justice)
and other interested entities, such as insurers and large businesses. Critics of the proposed
changes to Rule 26(a) charged that mandatory disclosures would exacerbate the problems of cost
and delay in civil discovery, lead to disputes over incomplete disclosures, and, most importantly,
conflict with the ethical duties of an attorney to his or her client.192 The strongest—and most
frequently voiced—objection to the proposed disclosures was that such disclosures would
undermine the adversary system by creating an untenable conflict between an attorney’s
obligation to “represent a client zealously,”193 and the obligation under the new rule to disclose
relevant information even if damaging to his or her client. 194 Some also voiced concern that
imposing a mandatory duty-to-disclose regime on a national basis was premature because local
discovery reform experiments mandated by the Civil Justice Reform Act of 1990 (“CJRA”)195
were not yet complete.196
Justice Scalia (joined by Justices Souter and Thomas) refused to endorse the new
amendments upon their submission by the Judicial Conference of the United States (“Judicial

188

FED. R. CIV. P. 26(e)(1) (1993).
FED. R. CIV. P. 26(g) (1993).
190
Id.
191
Federal court rules result from an elaborate and carefully designed rulemaking process. In brief, the Judicial
Conference drafts, reviews, and promulgates proposed rules through the work of several committees and a public
notice-and-comment period. The Judicial Conference, upon endorsement of the rulemaking package (e.g., proposed
rules, Advisory Committee notes, and report), sends the proposal to the Supreme Court. The Supreme Court
deliberates on the proposed rules, and, if it approves them, submits the rules to Congress. Congress then has seven
months (or longer) to amend or reject the proposed rules before they can take effect. See 28 U.S.C. § 2074(a);
Griffin B. Bell et al., Automatic Disclosure in Discovery—The Rush to Reform, 27 GA L. REV. 1, 21-28 (1992)
(recounting rulemaking process for the 1993 Amendments); see generally WINIFRED BROWN, FEDERAL RULE
MAKING: PROBLEMS AND POSSIBILITIES 5-34 (1981).
192
Bell, supra note 191, at 28-41 (summarizing commenters’ opposition to mandatory disclosure requirements in
proposed Rule 26(a)).
193
MODEL CODE OF PROF’L RESPONSIBILITY CANON 7 (1983).
194
Id.; see also Gladiators be Gone, supra note 183, at 503-04.
195
See Pub. L. 101-650, §§ 104, 105, 104 Stat. 5097-5098; see also 28 U.S.C. §§ 471, 473(a)(2)(C).
196
1993 Amendments to the Federal Rules, supra note 184, at 511.
189

25

Conference”) to the Supreme Court for approval.197 Justice Scalia’s strong dissent echoes the
criticisms leveled at Rule 26(a)’s disclosure mandate by other commenters:
The proposed new regime does not fit comfortably within the American judicial
system, which relies on adversarial litigation to develop the facts before a neutral
decisionmaker. By placing upon lawyers the obligation to disclose information
damaging to their clients—on their own initiative, and in a context where the lines
between what must be disclosed are not clear but require the exercise of
considerable judgment—the new Rule [26(a)] would place intolerable strain upon
lawyers’ ethical duty to represent their clients and not to assist the opposing
side.198
Ultimately, however, these criticisms did not prevail. The 1993 amendments—including
Rule 26(a)’s mandatory disclosure provisions—were approved by the Supreme Court (over
Justice Scalia’s dissent) and became law by virtue of congressional inaction. However, the 1993
Amendments acknowledged concerns that national implementation at that time might be
premature by explicitly permitting local federal districts (as well as attorneys, by stipulation) to
“opt out” of the mandatory disclosure rules in favor of local variations.199
Empirical and other evidence suggest that, despite its contentious origins, Rule 26(a)’s
duty-to-disclose scheme has improved the civil discovery process, and has done so without
creating insurmountable ethical issues. With respect to empirical analyses, in 1997 the Judicial
Conference commissioned studies by the Federal Judicial Center (“FJC”),200 the research arm of
the federal courts, and the RAND Institute for Civil Justice (“RAND”)201 to evaluate the effect of
Rule 26(a)’s mandatory disclosure rules and other similar local pilot discovery management
programs. These comprehensive studies yielded complementary data on the efficacy of early
discovery disclosures. The RAND study, for which data collection preceded the effective date of
the 1993 Amendments, assessed local pilot case management programs started in response to the
CJRA, including early mandatory disclosures.202 Among other things, RAND reported that the
vast majority of attorneys viewed mandatory disclosure programs favorably and believed they
improved fairness.203 RAND also observed that attorneys reported greater disclosure with
mandatory early disclosure programs, as compared to voluntary programs or districts with no
disclosure policy.204
Following up on the RAND report, the FJC subsequently undertook a comprehensive
statistical analysis of Rule 26(a)(1) to tell the full “empirical” story of the effects of its
197

Id. at 510.
Id. at 510.
199
FED. R. CIV. P. 26(a)(1) (1993) (establishing default rule that initial mandatory disclosure obligations apply in
each district “[e]xcept to the extent otherwise stipulated or directed by order or local rule”).
200
THOMAS E. WILLGING ET AL., AN EMPIRICAL STUDY OF DISCOVERY AND DISCLOSURE PRACTICE UNDER THE
1993 FEDERAL RULE AMENDMENT (1998), reprinted in 39 B.C. L. Rev. 525 (1998) [hereinafter FJC STUDY].
201
JAMES S. KAKALIK ET AL., DISCOVERY MANAGEMENT: FURTHER ANALYSIS OF THE CIVIL JUSTICE REFORM ACT
EVALUATION DATA (1998) [hereinafter RAND REPORT], available at http://www.rand.org/content/dam/rand/
pubs/monograph_reports/2009/MR941.pdf.
202
Id. at 16-17.
203
Id. at 54 tbl. 3-2, 120-24.
204
Id. at 48.
198

26

mandatory disclosure provisions.205 The FJC’s study included a national survey of attorneys in
1000 closed civil cases selected from various federal districts across the country that, based on
the nature of the complaint, were likely to have included discovery. 206 Statistical analyses of the
survey responses led the FJC to several conclusions of interest. First, despite Rule 26(a)(1)’s
opt-out provision, use of mandatory disclosures was nonetheless widespread, with over one-half
of attorneys (58%) whose cases involved discovery having exchanged such disclosures in their
cases.207 Second, the surveyed attorneys’ views of the efficacy of mandatory disclosures were
generally favorable. Of respondents who reported an effect, they generally viewed these
disclosures as having the salutary benefits of, on the one hand, decreasing litigation costs and the
time from filing to disposition while, at the same time, increasing both procedural fairness and
fairness of case outcomes.208 Lastly, a plurality of respondents (41%) favored replacing the optout system with a uniform national rule requiring mandatory disclosures in every federal
district.209
There are also several reasons to believe that concerns about the 1993 Amendment’s
duty-to-disclose scheme were overstated. The text of amended Rule 26(a)(1), as well as the
Advisory Committee’s accompanying notes, made explicit that the new disclosure rules were not
intended to compromise existing privilege or work product doctrines.210 As one commentator
observed shortly after the 1993 Amendments took effect: “Amended Rule 26 and the Advisory
Committee’s Notes do not seem to have eliminated, eviscerated, or otherwise enfeebled the
assertion of privileges and immunities in the discovery process.”211 As important, the attorneyclient privilege is likely not implicated by most disclosures under Rule 26(a)(1) because the
privilege extends only to communications, not underlying factual information.212 Most (if not
all) of the information disclosed under this provision—including, the names of potential
witnesses, lists of relevant documents, and copies of insurance agreements—is likely to be solely
factual and, thus, exempt from privilege claims.

205

See FJC STUDY, supra note 200.
Id. at 528.
207
Id. at 534, 554 tbl. 2 & 559. Although attorneys’ evaluations of Rule 26(a)(1)’s disclosure mandate were
generally positive, slightly more than one-third of surveyed attorneys (37%) who had participated in a case with
disclosures identified one or more implementation problems, the most frequent of which was a disclosure by their
opponent that was too brief or incomplete. Id.
208
Id. at 534-35, 562-64. The FJC study did, however, reveal one particular subset of cases in which respondents
deemed mandatory disclosures to be ineffective—cases with high monetary stakes (i.e., claims valued at over
$500,000), high complexity, or contentious relationships. Id. at 563-64.
209
Id. at 535, 564-65.
210
See FED. R. CIV. P. 26(a)(1)(C), 26(b)(1) (1993); see also FED. R. CIV. P. 26(b) advisory committee’s note
(1993); Gladiators Be Gone, supra note 183, at 509-10 (“Lawyers who insist that automatic disclosures are
unethical . . . misconstrue the lawyer’s role in the adversary process as well as their ethical obligations under the
rules of professional responsibility.”); Charles W. Sorenson, Disclosure Under Federal Rule of Civil Procedure
26(a)—“Much Ado About Nothing?”, 46 HASTINGS L.J. 679, 766 (1995) (“On its face, amended Rule 26(a) does not
impinge upon the [attorney-client] privilege even for initial [mandatory] disclosures . . . . and the Advisory
Committee Notes accompanying the December 1993 amendments acknowledge that a party may object to the
production of documents during Rule 26(a) disclosure on the basis of ‘privilege or work-product protection.’”).
211
Linda S. Mullenix, Adversarial Justice, Professional Responsibility, and the New Federal Discovery Rules, 14
REV. LITIG. 13, 32 (1994).
212
Upjohn v. United States, 449 U.S. 383, 395-96 (1981); CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 5484 (2012); see also Sorenson, supra note 210, at 766-67; Mullenix, supra note 211, at 41.
206

27

Yet, even in the broader, non-evidentiary sense, Rule 26(a)’s mandatory disclosure
obligations did not cause serious dissonance with attorneys’ norms of professional responsibility.
The attorney’s duties of confidentiality and zealous representation are not without boundaries.
The Model Rules of Professional Conduct213 subject these duties to limitations that require (or
permit) attorneys to disclose client information when mandated by law or court order—which,
presumably, encompasses “the other law” of mandatory disclosures under Rule 26(a)(1).214
Thus, it cannot be seriously argued that Rule 26(a)’s duty-to-disclose scheme poses a threat to
attorneys’ ethical obligations. Indeed, our research has revealed no cases in which an attorney
has been subject to sanction by his or her state bar for complying with Rule 26(a)’s mandatory
disclosure provisions.
B.

2000 Amendments: Refinements to Mandatory Disclosure

In 1997, the Judicial Conference initiated the committee process to explore the need for
additional revisions to Rule 26. The Advisory Committee drew on the results of the RAND and
FJC studies, as well as public hearings and concluded, among other things, that Rule 26(a)(1)’s
mandatory disclosures had been well-received, but that the existing “opt out” provision had
resulted in the “balkanization” of discovery rules among the ninety-four judicial districts.215
More generally, the Advisory Committee also continued to hear criticisms that the broad scope
of discovery led to abusive tactics and increased costs. Ultimately, in 2000, the Advisory
Committee’s reform proposal led to amendments to the Federal Rules—which, while described
as “modest,” 216 revised Rule 26 in several respects.217
The 2000 Amendments made two revisions to Rule 26 of particular relevance to this
report. First, to bring uniformity to disclosure rules across all federal jurisdictions, the
amendments removed the authority of local districts to alter or opt out of the nationallyapplicable disclosure provisions in Rule 26(a)(1).218 Also, the 2000 amendments narrowed the
scope of information parties must divulge in their mandatory disclosures.219 Whereas disclosure
obligations previously (under the 1993 Amendments) extended under Rule 26(a)(1) to
discoverable (non-privileged) information “relevant to disputed facts alleged with particularity in
the pleadings,”220 the 2000 Amendments narrowed the scope of such mandatory disclosures to
213

MODEL RULES OF PROF’L CONDUCT prmbl, para. 9 (setting forth an attorney’s obligation to zealously pursue
client’s legitimate interests “within the bounds of the law”) & Rule 1.6(b)(6) 1982) (permitting an attorney to reveal
a client’s information when reasonably necessary “to comply with other law or a court order”).
214
See Mullenix, supra note 211, at 40-41 (rejecting arguments that Rule 26(a) disclosures conflict with ethical
canons and stating: “The lawyer’s broader duty of confidentiality . . . is itself subject to waivers and exceptions that
permit or require lawyers to disclose client information when authorized or mandated by law, including the duty of
candor towards tribunals.”); Sorenson, supra note 210, at 779-92 (“[T]he short answer to the arguments by the
critics of disclosure regarding the purported violation of ethical duties to the client is simply that attorneys' zealotry
has always been ethically subject to legal limitations and obligations, including obligations to reveal to an opposing
party adverse information.”); Gladiators Be Gone, supra note 183, at 509-10 (opining that mandatory disclosures
are consistent with ethical obligations under Canon 7 of the Model Code of Professional Responsibility); see also
discussion supra at Part IV.A.2.-3.
215
See Niemeyer, supra note 183, at 519, 521-23.
216
Richard L. Marcus, The 2000 Amendments to the Discovery Rules, 1 FED. CTS. L. REV. 289, 290-91, 299 (2006).
217
Amendments to the Federal Rules of Civil Procedure, 192 F.R.D. 340 (2000) [hereinafter 2000 Amendments].
218
See FED. R. CIV. P. 26(a)(1), 26(b)(1) (2000); FED. R. CIV. P. 26 advisory committee’s note (2000).
219
E.g., AG-Innovations, Inc. v. United States, 82 Fed. Cl. 69, 77 (2008).
220
See FED. R. CIV. P. 26(a)(1)(A)-(B) (1993).

28

discoverable matters that the disclosing party may use “to support its claims or defenses.”221
Parties may only seek broader “relevant to the subject matter” discovery by court order upon a
showing of good cause. In effect, this change created a multi-tiered approach to discovery by:
(1) narrowing the scope of initial, mandatory disclosures (as well as other subsequentlypropounded discovery requests such as interrogatories or document requests) and (2) getting
courts more actively involved in broader discovery requests.222
Two themes emerge from the 2000 Amendments to Rule 26 that may be relevant to
SSA’s duty of candor efforts. First, widespread use of pilot disclosure measures in a program of
national scope (such as the federal court system)—while useful to assess alternate approaches—
may nonetheless come at the cost of confusion among practitioners and some measure of
inefficiency. For example, attorneys surveyed in the FJC study ranked adoption of a national
disclosure rule second among proposed rule changes (behind increased availability of judges to
resolve discovery disputes) as a means to reduce litigation expenses without interfering with fair
outcomes.223 Second, perceptions about the scope of mandatory disclosures can play a role in
acceptance of such disclosures by the bar. Whether this new phraseology in amended Rule
26(a)(1) does, in fact, narrow the scope of disclosed evidence is a matter of scholarly debate.224
Indeed, even the framers of the 2000 Amendments admit that the line between the former
subject-matter discovery standard and the new claim-or-defense standard is a fine one.225 Yet,
what does seem clear is that perceptions about the scope of required disclosures (rather than
ethical considerations)—by some bar organizations, practitioners, and judges still reluctant to
221

FED. R. CIV. P. 26(a)(1)(A)-(B) (2000); FED. R. CIV. P. 26 advisory committee’s note (2000).
E.g., In re Cooper & Tire Rubber Co., 568 F.3d 1180, 1188-89 (10th Cir. 2009) (discussing impact of amended
Rule 26 on discovery process); Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D. 496, 498-500 (S.D.
Ind. 2003) (same); Thomas D. Rowe, Jr., A Square Peg In A Round Hole? The 2000 Limitation on the Scope of
Federal Civil Discovery, 69 TENN. L. REV. 13, 17-18 (2002) (“To put it in the terms colloquially used by litigators . .
. the amended rule’s second tier [of court-mediated discovery] aims to provide ‘adult supervision’ to contain
possible squabbles when any party seeks and may engage in broader subject-matter discovery.”); see generally
FEDERAL PRACTICE AND PROCEDURE § 2008 (discussing effect of 2000 amendments on scope of discovery and
collecting cases).
223
FJC STUDY, supra note 200, at 541-43, 582-87; see also DONNA STIENSTRA, IMPLEMENTATION OF DISCLOSURE
IN UNITED STATES DISTRICT COURTS, WITH SPECIFIC ATTENTION TO COURTS’ RESPONSES TO SELECTED
AMENDMENTS TO FEDERAL RULE OF CIVIL PROCEDURE 26 (Federal Judicial Center, March 30, 1998), available at
http://www.fjc.gov/public/pdf.nsf/lookup/FRCP2698.pdf/$File/FRCP2698.pdf; JUDICIAL CONFERENCE, FINAL
REPORT TO CONGRESS, ALTERNATIVE PROPOSALS FOR REDUCTION OF COST AND DELAY: ASSESSMENT OF
PRINCIPLES, GUIDELINES AND TECHNIQUES, 175 F.R.D. 62 (1990) available at http://host4.uscourts.gov/library/cjra/
cjrafin.pdf. In the run-up to the 2000 Amendments, individuals testifying at the public hearings on the proposed
amendments also emphasized the need for national uniformity. See Niemeyer, supra note 183, at 522-23
(summarizing comments at public hearings); FED. R. CIV. P. 26 advisory committee’s note (2000).
224
See, e.g., Marcus, supra note 216, at 293-94, 299 (concluding that definitional revisions in 2000 Amendments
“should not have a dramatic effect on the scope of discovery”); Rowe, supra note 222, at 18-22, 24-27 (expressing
doubts that new claim-or-defense default discoverability standard will, in practice, limit discovery based on liberal
discovery traditions and review of early caselaw applying amended Rule 26); Carl Tobias, The 2000 Federal Civil
Rules Revisions, 38 SAN DIEGO L. REV. 875, 883-87 (2001); Elizabeth G. Thornburg, Giving the “Haves” A Little
More: Considering the 1998 Discovery Proposals, 52 SMU L. REV. 229, 249-54 (1999) (expressing the view that
the revised scope of discovery is “apt to result in the disclosure of less information both initially [through mandatory
disclosures] and after formal discovery”).
225
See FED. R. CIV. P. 26(b)(1) advisory committee’s note (2000) (“The dividing line between information relevant
to the claims and defenses and information relevant only to the subject matter of the action cannot be defined with
precision.”).
222

29

fully embrace a duty-to-disclose scheme—was as much the likely driver underlying these 2000
Amendments as other factors.226 This suggests that SSA may be able to reduce potential
opposition to any rulemaking it may undertake in the future relating to submission of evidence
by thoughtfully tailoring and explaining its proposed regulation as it has done in the past.
Lastly, it bears noting that the federal judiciary has recently initiated a discretionary pilot
program—developed by a Judicial Conference Advisory Committee—to use case-specific initial
discovery protocols for employment litigation involving adverse actions.227 These pilot
discovery protocols, which are being employed at present by individual district court judges (or
districts) on a voluntary basis, were developed as a form of case-type-specific “pattern
discovery” given that such employment actions are “regularly litigated and [present] recurring
issues.”228 For judges (or districts) adopting them, these pilot protocols will supplant Rule
26(a)(1)’s mandatory disclosures in favor of a case-specific suite of pattern discovery that consist
of: (1) detailed mandatory initial disclosures that are specifically tailored to issues commonly
raised in employment discrimination cases alleging adverse personnel actions; (2) a standing
order for their implementation by individual judges participating in the pilot program; and (3) a
model protective order that attorneys and judges can use as the basis for such orders, if
needed.229 The FJC will evaluate this pilot program over time to determine its impact and
efficacy in these types of employment actions.230 If the pilot model proves successful, the FJC
indicates that it may be used as the basis for development of other case-specific pattern discovery
protocols.231 While this pilot program is still in its infancy, it nonetheless may still serve as
another useful civil discovery model for SSA as it considers whether—or how—to frame any
new rules addressing the disclosure obligations of claimants and representatives.
IV. ETHICS STANDARDS THAT REQUIRE DISCLOSURE OF INFORMATION
Despite the experience under FRCP 26(a), concerns have been raised that an affirmative
disclosure obligation would (in the case of attorney representatives) put attorneys in conflict with
state rules of professional conduct—in particular, rules governing the disclosure of a client’s
confidential information.232 This part addresses the ethical obligations of attorneys with an eye
toward the options set forth in Part V. It also briefly addresses the regulation of a non-attorney
representatives’ conduct.

226

See Rowe, supra note 222, at 15-16 (“The scope redefinition can be understood as fitting with several of the
goals animating the 2000 package of amendments,” which included: constraining improper of overly expansive
discovery; prompting judicial supervision in cases with problematic discovery issues; and, confirming judicial
discretion to tailor discovery to the needs of particular cases); Thornburg, supra note 224, at 236, 243-46 (opining
that the “same pressures that caused controversy to flow around the 1993 [disclosure] proposal . . . have led the
Advisory Committee to once again take up the issue of disclosure and its relationship to formal discovery”).
227
FEDERAL JUDICIAL CENTER, PILOT PROJECT REGARDING INITIAL DISCOVERY PROTOCOLS FOR EMPLOYMENT
CASES ALLEGING ADVERSE ACTION (Nov. 2011) [hereinafter FJC PILOT EMPL. LIT. PROJECT], available at http://
www.fjc.gov/public/pdf.nsf/lookup/DiscEmpl.pdf/ $file/DiscEmpl.pdf.
228
Id. at 1.
229
Id. at 2.
230
Id.
231
Id.
232
NOSSCR 2012 Letter, supra note 40.

30

A. Ethics Considerations for Attorney Representatives
1. Sources of Governing Law
The law governing an attorney’s conduct comes from diverse sources, including statutes
that apply to attorneys and non-attorneys alike,233 common law standards based on the fiduciary
nature of attorney-client relationships, the rules adopted by tribunals in which the attorney
litigates, rules adopted by agencies before whom the attorney practices, and professional rules
adopted by the state supreme court where the attorney is licensed. Two sources are of particular
importance here: state rules of professional conduct and the rules of the tribunal before which an
attorney practices.
Forty-nine of the fifty state supreme courts have adopted professional rules that are based
on the ABA Model Rules of Professional Conduct.234 The Model Rules do not have the force of
law in and of themselves. They become law only if a state (whether through its supreme court or
otherwise) adopts them as binding law. While there is significant variation from state to state
regarding an attorney’s general disclosure of confidential information and related matters, the
principles discussed below are common to every state’s rules of professional conduct.
Attorneys are also bound by the rules of the tribunal before which they practice. As the
ABA’s Model Rules provide, “a lawyer shall not . . . knowingly disobey an obligation under the
rules of the tribunal except for an open refusal based on an assertion that no valid obligation
exists.”235 The ABA rules specifically contemplate, in fact, that a tribunal’s rules may
sometimes conflict with other rules of professional conduct to which an attorney is subject. In
the case of such conflict, the ABA Model Rules state, the rules of the tribunal control.236
There is an important, related principle at work when the tribunal’s rules have the force
of federal law (as would any SSA procedural regulation). When, pursuant to its statutory
authority, a federal agency promulgates rules governing the attorneys who practice before them,
those rules, by operation of the Constitution’s Supremacy Clause, preempt any conflicting state
ethics rules. But SSA need not resort to its preemptive authority to impose a duty of disclosure.
2. The Confidentiality Mandate & Its Exceptions
Attorneys are generally required to keep client-related information confidential unless an
exception to their confidentiality duty permits or requires disclosure.237 The ABA’s Model Rules
233

E.g., Milavetz, Gallop & Milavetz v. United States, 130 S. Ct. 1324, 1332 (2010) (noting that Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005 applies to attorneys and rejecting law firm’s argument that the
federal statute “impermissibly trenches on an area of traditional state regulation”); Goldfarb v. Va. St. Bar, 421 U.S.
773 (1975) (Sherman Act applies to attorneys and prohibits bar’s minimum fee schedule).
234
California has followed a different model, with some rules adopted by its supreme court and other standards
enacted by the legislature in the state’s Professional and Business Code. CA RULES OF PROF’L CONDUCT.
235
MODEL RULES OF PROF’L CONDUCT R. 3.4(c) (2012).
236
Id. at R. 8.5 (2012).
237
Id. R. 1.6(a) (2012). The precise scope of the duty of confidentiality (i.e., what information is included in the
confidentiality obligation) varies depending on the state where the attorney is licensed. Some states have adopted
the rather broad approach found in Model Rule 1.6 (i.e., information relating to the representation of a client), while
others have adopted a narrower approach (i.e., information covered by the attorney-client privilege and other

31

delineate eleven exceptions to this requirement.238 Three of these exceptions are relevant in the
context of this report: those allowing an attorney to (1) disclose information in ex parte
proceedings,239 (2) “prevent, mitigate or rectify a client crime or fraud” where the attorney’s
services had been used in the crime or fraud,240 and (3) “comply with other law.”241 The last one
is particularly important and to a large extent underlies the options in Part V.
a.

Candor in Ex Parte Proceedings

SSA disability adjudications do not technically fit within the traditional understanding of
an ex parte proceeding: since the government is not represented, the proceedings are not out of
the presence of any party. Yet the Supreme Court has characterized a similar sort of proceeding
administered by the VA as ex parte,242 and also equated VA and SSA disability proceedings in
other respects. As a result, it is relevant to the issue addressed in this report to consider the rules
of professional conduct governing an attorney’s obligation in ex parte proceedings. These
proceedings most commonly arise in situations where one party to a dispute seeks a temporary
restraining order (“TRO”) and there is not sufficient time to bring the other party before the
court.
Nearly every state’s rules of professional conduct requires, in one form or another, an
attorney in an ex parte proceeding to “inform the tribunal of all material facts known to the
attorney that will enable the tribunal to make an informed decision, whether or not the facts are
adverse.”243 This candor obligation is appropriate because an ex parte proceeding represents a
departure from the adversary process. Tribunals normally rely on the adversary process—and
the incentive of each party to present favorable information—to ensure that the tribunal is
informed of all relevant information. But where there is a departure from the adversary process,
the ordinary rules of confidentiality are relaxed. The judge cannot rely on the party opposing the
TRO to come forward with information adverse to the TRO. Thus, professional rules obligate
the attorney for the party seeking the TRO to help the judge achieve a just result because of the
lack of an adversary process.
This established rule on ex parte proceedings carries over to SSA administrative
proceedings that determine a claimant’s eligibility for disability benefits. On the one hand, at the
ALJ stage, the claimant (and the representative, if he or she has one) stands before an ALJ
without the government there to argue against the claimant’s eligibility.244 This aspect of the
process suggests the proceeding is ex parte. On the other hand, unlike a trial judge who hears a
information the disclosure of which would be harmful to the client). Compare, e.g., MODEL RULES OF PROF’L
CONDUCT R. 4-1.6(a) (broad approach) with, e.g., D.C. RULES OF PROF’L CONDUCT R. 1.6 (narrower approach).
238
Model Rule 1.6(a) contains two exceptions: where “the client gives informed consent” and where “disclosure is
impliedly authorized in order to carry out the representation.” Model Rule 1.6(b) lists seven additional exceptions,
and other exceptions are found in Model Rule 3.3 and in Model Rule 3.8(d) for prosecutors.
239
MODEL RULES OF PROF’L CONDUCT R. 3.3 (2012).
240
Id. R. 1.6(b)(3), (b)(2) (2012).
241
Id. R. 1.6(b)(6) (2012).
242
Henderson, 131 S. Ct. at 1200-01.
243
MODEL RULES OF PROF’L CONDUCT R. 3.3(d) (2012).
244
Frank Bloch, Jeffrey Lubbers, & Paul Verkuil, Introducing Nonadversarial Government Representatives to
Improve the Record for Decision in Social Security Disability Adjudications: A Report to the Social Security
Advisory Board, 92 CORNELL L. REV. 235, 240-43 (2007).

32

request for a TRO and has a single obligation—to adjudicate that request—the ALJ hearing a
disability claim has an obligation not just to adjudicate the claim, but also to consider the
interests of the government. Hence, as noted above, ALJ proceedings do not technically fit
within the traditional definition of an ex parte proceeding. At the same time, the Supreme Court
has characterized benefits proceedings before the VA as ex parte,245 and those proceedings, as
the Supreme Court also noted, differ little, if at all, from SSA proceedings as far as the ex parte
question is concerned. Since the ALJ, in “representing” the government, while balancing his or
her role as a neutral decider, does not have access to discovery or other information in the
claimant’s hands, it could well be that ex parte constraints on claimant’s counsel are appropriate.
In this way, the terms nonadversarial and ex parte tend to merge, as the Court suggested in
Henderson.
b.

Perpetuation of a Fraud

A second relevant exception arises when a client has used an attorney’s services in
perpetrating a fraud. Attorneys must not knowingly assist a client in a fraud or engage in
“conduct involving dishonesty, fraud, deceit or misrepresentation.”246 These prohibitions are
obvious and encompass the starkest type of attorney misconduct. Other professional rules
provide guidance to attorneys regarding a less stark, but likely, more common scenario: where
the attorney has not knowingly assisted a client in a fraud, but comes to believe that he or she has
done so inadvertently.
When an attorney discovers that a client has used his or her services to perpetrate a fraud,
the attorney’s lack of knowledge at the time of providing the original services does not relieve
that attorney of the responsibility to take action once the attorney becomes aware of the client’s
fraudulent conduct.247 If failure to disclose a material fact would constitute assistance in that
fraud, then the attorney has an affirmative obligation to disclose that information.248 If an
attorney learns that a client has testified falsely before a tribunal, the attorney has an obligation
to take remedial measures, which may include disclosure of the falsehood to the tribunal.249
c.

Disclosure of Information Pursuant to “Other Law” or Court Order

The third and most important exception permits attorneys to disclose otherwise
confidential information if, as Model Rule 1.6(b)(6) provides, “other law” or a “court order”

245

Henderson, 131 S. Ct. at 1200-01.
MODEL RULES OF PROF’L CONDUCT R. 8.4(c) (2012); see also MODEL RULES OF PROF’L CONDUCT R. 1.2(d)
(2012).
247
MODEL RULES OF PROF’L CONDUCT R. 4.1 (2012).
248
This obligation can be derived be reading Model Rules 4.1 and 1.6(b)(3) together. Rule 4.1 requires an attorney
“to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client,
unless disclosure is prohibited by Rule 1.6.” MODEL RULES OF PROF’L CONDUCT R. 4.1 (2012). Rule 1.6 allows
attorneys to reveal otherwise confidential information “to prevent, mitigate or rectify substantial injury to the
financial interests or property of another that is reasonably certain to result or has resulted from the client’s
commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.” MODEL RULES OF
PROF’L CONDUCT R. 1.6(b)(3) (2012).
249
MODEL RULES OF PROF’L CONDUCT R. 3.3(a) (2012).
246

33

requires such disclosure.250 While there may well be contexts in which it is not clear whether the
“other” disclosure law actually supersedes an attorney’s duties of confidentiality and
representation of a client’s interests, 251 there is no serious question an attorney may—and
perhaps even must—comply with a tribunal’s validly promulgated regulation requiring the
disclosure of adverse factual information that does not invade a privilege. A regulatory
obligation of the sort contemplated here would be no different, as far as legal ethics rules are
concerned, from the obligation to comply with a discovery request or an order calling for the
production of adverse information,252 or a self-executing disclosure requirement of the sort
imposed by the Federal Rules,253 at least so long as the regulation described the information to be
disclosed with a reasonable degree of particularity. 254 The options set forth in Part V are drafted
accordingly.255
The situation is no different in the context of administrative adjudications. As noted in
Part II, federal administrative agencies sometimes impose affirmative disclosure obligations on
clients—and, derivatively, their attorneys. The Restatement (Third) of the Law Governing
Lawyers recognizes, without reservation, the legitimacy of such agency requirements (in both
adjudicative and non-adjudicative proceedings), at least if they are confined to the disclosure of
facts:256 “Agency rules sometimes require that a lawyer . . . make affirmative disclosures of fact.
. . . [A] lawyer providing representation subject to such laws must comply with them.”257 It
notes, in particular, that “with respect to contentions of fact, . . . a lawyer may be required to
disclose to the . . . tribunal”258 even “certain information unfavorable to the client.”259 At the
same time, the Restatement makes clear that only when agency regulations clearly impose a
disclosure obligation should attorneys so construe them. “Ambiguous regulations that are
claimed to impose such a requirement should be construed in favor of the traditional lawyer
roles.”260 The options laid out in Part V are drafted to avoid any such ambiguity.
3. Relationship Between Professional Rules & Federal Agency Standards for Attorneys
that Practice Before Them
250

MODEL RULES OF PROF’L CONDUCT R. 1.6(b)(6) (2012); see Aviel, supra note 172, at 1059 n.18 (noting that
forty-one jurisdictions included this provision).
251
MODEL RULES OF PROF’L CONDUCT R. 1.6, Cmt.12 (2012) (“Other law may require that a lawyer disclose
information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these
Rules.”); see also Aviel, supra note 172.
252
See, e.g., FED. R. CIV. P. 26, 33 & 34.
253
See discussion supra, Part III (discussing FED. R. CIV. P. 26(a)(1)).
254
See, e.g., Mullenix, supra note 211, at 39 (rejecting argument that 1993 Amendments to Rule 26(a)(1) would
bring attorneys into conflict with professional duties; emphasizing that, because this mandatory disclosure
requirement was limited to non-privileged and non-immunized factual material, it did not encompass any material
that an attorney was not already required to disclose in response to a discovery request or court order under longstanding federal-court discovery rules); Sorenson, supra note 210, at 781 (“[T]he short answer to the argument . . .
[that the 1993 amendment would conflict with a lawyer’s ethical duties is that those duties have] always been
subject to legal limitations and obligations, including obligations to reveal to an opposing party adverse
information.”).
255
See, e.g., FED. R. CIV. P. 26, 33 (2012).
256
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 104(2) Cmt. d (2000).
257
Id.
258
Id.
259
Id.
260
Id.

34

If SSA were to impose an affirmative disclosure mandate on claimants, how would an
attorney’s compliance with such a mandate interact with a state rule of professional conduct that,
for argument’s sake, forbade compliance with the mandate? When SSA has proposed candor
obligations in the past, some argued that it would be improper for a federal agency to impose
standards inconsistent with bar rules.261 While attorneys often argue that bar rules are supreme
and cannot be countermanded by federal agencies, if a federal agency has the authority to
regulate attorneys practicing before it—as SSA unquestionably does262—the Constitution’s
Supremacy Clause enables that agency to impose on state-licensed attorneys conduct standards
that further federal interests, even if such conduct standards are inconsistent with state law.263
The only limitation on SSA’s authority to do so would arise if the disclosure obligation invaded a
constitutional right to counsel, such as that guaranteed to defendants in criminal trials.264 None
of the many comments SSA has received in opposition to proposed duties of candor in the past
has ever sought to ground their position in a constitutional right to counsel.265
B. Ethics Considerations for Non-Attorney Representatives
The Social Security Act gives the Commissioner the authority to establish rules for
regulating non-attorney representation.266 In fact, five thousand non-attorney representatives are
currently practicing before SSA.267 As has been noted:

261

See Houston Bar 2005 Letter, supra note 108, at 6 (on file with SSA) (noting the conflict between the proposed
regulation and “our own state bar rules”).
262
See discussion supra Part I.B.
263
See Sperry, 373 U.S., at 385 (where a federal agency permits non-attorneys to represent inventors seeking
patents, a state may not interfere with such non-attorneys engaging in this practice before the federal agency).
264
See Rebecca Aviel, When the State Demands Disclosure, 33 CARDOZO L. REV. 675, 721 (2011) (noting that “the
Fifth and Sixth Amendments as currently interpreted will allow a great many applications of disclosure statutes to
attorneys”) (footnote omitted).
265
Indeed, the Supreme Court’s decision in Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 (1985)
arguably forecloses such argument. In Walters, plaintiffs raised constitutional challenges to the statutory provision
limiting to $10 the fee that could be paid to attorneys or other persons who represent veterans seeking servicerelated disability benefits. Id. at 308. The Court concluded that neither the First nor Fifth Amendments raised a
constitutional bar to this fee-limiting provision in light of the informal, nonadversarial nature of the VA’s
adjudication process. Id. at 320-34. In so holding, the Court noted the similarities between VA and SSA disability
benefit programs: “We think the benefits at stake in VA proceedings, which are not granted on the basis of need, are
more akin to the Social Security benefits involved in Matthews [v. Eldridge] than they are to the welfare payments
upon which recipients in Goldberg [v. Kelly] depended for their daily subsistence.” Id. at 240-41.
266
42 U.S.C. § 406(a)(1) (2012) states:
The Commissioner of Social Security may prescribe rules and regulations governing the
recognition of agents or other persons, other than attorneys as hereinafter provided, representing
claimants before the Commissioner of Social Security, and may require of such agents or other
persons, before being recognized as representatives of claimants that they shall show that they are
of good character and in good repute, possessed of the necessary qualifications to enable them to
render such claimants valuable service, and otherwise competent to advise and assist such
claimants in the presentation of their cases.
267
Drew A. Swank, Non-Attorney Social Security Disability Representatives and the Unauthorized Practice of Law,
36 S. ILL. L.J. 223, 224 (2012) (citing to Drew A. Swank, The Social Security Administration’s Condoning of and
Colluding with Attorney Misconduct, 63 ADMIN. L. REV. (forthcoming 2012) (manuscript at 9 n.66, on file with
Drew Swank)).

35

Non-attorneys represent claimants ranging from eleven to fourteen percent of the
more than 700,000 cases heard by [SSA] each year. This equates to a minimum
of 77,000 to 98,000 cases per year. As [SSA] is the largest adjudicatory system in
the world, more non-attorney representatives likely appear before it than in any
other forum.268
Therefore, any consideration of the obligations of representatives, ethical or otherwise, would be
incomplete without an analysis of its impact on non-attorney representatives.
The key issue relating to non-attorney representatives who appear before an agency is the
unauthorized practice of law. This issue has been a topic of debate and disagreement, primarily
because there exists no commonly agreed upon or authoritative definition of what constitutes the
“unauthorized practice of law.”269 Moreover, a person who does engage in the unauthorized
“practice of law risk[s] exposure to civil and criminal penalties.”270 However, whatever the
exact definition of the “unauthorized practice of law,” the Supreme Court has long ago held that
a federal agency may preempt state bar rules prohibiting non-attorneys from practicing law.271 A
federal agency may thus permit non-attorneys to practice law before it as “an exception to the
unauthorized practice of law doctrine.”272
This ability to permit what might otherwise be the unauthorized practice of law is
important in order to vest non-attorney representatives with authority to appear before an agency
like SSA, the VA, or the PTO. But more is required than this authority. The regulations
governing a non-attorney’s practice need to be fairly robust in order to have legitimacy. Except
for an agency’s own rules, non-attorneys’ conduct is largely unregulated.273 Non-attorney
representatives are in need of agency oversight precisely because there are no outside rules of
conduct—like state bar rules—that otherwise apply to them. Non-attorneys “usually do not carry
malpractice insurance,” and “no risk of bar sanctions exist,” thus limiting the “recourses against
non-attorneys.”274

268

Id. at 234-35.
See Swank, supra note 267, at 231-32; see also Alex J. Hurder, Nonlawyer Legal Assistance and Access to
Justice, 67 FORDHAM L. REV. 2241, 2266-67 (1999) (“Courts have defined the practice of law to include
representing parties in contested cases, negotiating the settlement of claims, drafting documents, giving legal advice,
and representing oneself to be licensed to practice law.”) The main concern driving the doctrine is that such practice
harms the public and undermines the adjudicative system. See id. at 2267-68 (noting that a “litigant might fail to
take action, to reveal facts, or to make arguments due to ineffective assistance by an individual without sufficient
training. A pattern of court decision making based on inadequately developed facts and uninformed legal arguments
could undermine the integrity of the legal system”). But see Swank, supra note 267, at 231 (noting that “the
arguments for the unauthorized practice of law doctrine are conjectural and subject to debate.”); Deborah L. Rhode,
Professionalism in Perspective: Alternative Approaches to Nonlawyer Practice, 22 N.Y.U. REV. L. & SOC. CHANGE
701, 224 (1996) (“Groups such as accountants, real estate brokers, and insurance agents cannot help but provide
law-related services, and no evidence suggests that these practitioners’ work has been less satisfactory than
lawyers’.”).
270
Swank, supra note 267, at 227; see also Hurder, supra note 269, at 2242.
271
Sperry, 373 U.S.
272
Swank, supra note 267, at 238; see also 5 U.S.C. § 555(b) (APA provision permitting parties to appear before
agencies “in person or by or with counsel or other duly qualified representative”).
273
This is unlike attorneys, whose conduct is regulated by their respective state bar associations.
274
Swank, supra note 267, at 229.
269

36

Moreover, in the non-attorney representative context, agencies like SSA do not have to
address the potential conflict that may exist between state bar rules and its regulations.
However, there are other facets of this kind of representation that an agency should address.
When drafting regulations, an agency should make them clear and accessible to both legally
trained and non-legally trained individuals.275 An agency should ensure that the regulations are
“well-tailored . . . to the government’s own interests in the operation of its [adjudicative]
system.”276 An agency should also develop a system of registration and a mechanism to hold
non-attorney representatives more accountable.277 Potentially useful examples include those of
“the [PTO], the Interstate Commerce Commission, and the Department of Labor, [which all]
require their non-attorney representatives to qualify to practice.”278 An agency may also look to
the examples of the “Federal Trade Commission, Department of Labor, and International Trade
Commission, . . . [which] allow their [ALJs] . . . to sanction representatives who appear before
them.”279
Finally, SSA may gain guidance from the Administrative Conference’s prior work in the
area of non-attorney assistance and representation. The Administrative Conference issued a
Recommendation in 1986 that focused on maximizing and improving this kind of
representation.280 Among other things, the Conference recommended that “[a]gencies . . .
declare unambiguously their intention to authorize assistance and representation by nonlawyers
meeting agency criteria”281 and “review their rules of practice that deal with attorney conduct . . .
to ensure that similar rules are made applicable to nonlawyers as appropriate, and . . . establish
effective agency procedures for enforcing those rules of practice.”282
V.

SSA REGULATORY OPTIONS TO ENHANCE DISCLOSURE OF ALL EVIDENCE RELATING
TO DISABILITY CLAIMS

A.

Guiding Principles

This part first identifies the fundamental principles that should guide any effort to
impose, by regulation, an affirmative disclosure obligation on claimants (and, derivatively, their
representatives) so as to ensure that disability claims are adjudicated based on a record SSA
deems adequate. This part then lays out in general terms the principal options—consistent with

275

Rhode, supra note 269, at 714 (noting that “[s]implifying procedures, standardizing forms . . . are . . . steps in the
right direction”).
276
Hurder, supra note 269, at 2265.
277
There is no SSA competency requirement for non-attorney representatives. Although the Social Security Act, 42
U.S.C. § 406(a)(1), contemplates competency requirements, the regulations only impose a requirement to be
“‘capable of giving valuable help.’” Swank, supra note 267, at 239. There is “no examination, no qualifying test,
nothing at all exists to qualify [non-attorney representatives] for the job in the first place.” Id. at 240. Also, while
there exist ethics regulations, ALJs may take no action themselves to rectify the situation, but are required to report
the misconduct to the Office of Disability Adjudication and Review (“ODAR”). Id. at 240-42.
278
Swank, supra note 267, at 247.
279
Id. at 248.
280
ACUS Recommendation 86-1, Nonlawyer Assistance and Representation, 51 Fed. Reg. 25,641 (July 16, 1968),
available at http://www.acus.gov/acus-recommendations/nonlawyer-assistance-and-representation/.
281
Id.
282
Id.

37

these guidelines—that SSA may wish to consider in drafting any such regulation. The particular
content of any such regulation is beyond the scope of this report.
The following guiding principles underlie our proposed options, which follow below in
the Part V.B.
First, any proposed regulation should place disclosure obligations directly on claimants
rather than on their representatives (if any), just as discovery and other evidence-production
obligations in federal courts are placed on civil litigants, not their counsel. A representative’s
obligations should be derivative of his or her client’s obligations (with one exception, as noted in
Part V.B below). To enforce this disclosure obligation, SSA could further provide that failure to
abide by such disclosure obligation may serve as the basis for revocation of benefits
(claimants)283 or suspension/disqualification from appearing in agency proceedings
(representatives)284 when such failure amounted to withholding material information, as set forth
in SSA’s existing regulations governing the conduct of claimants and representatives.
Second, as recommended by NOSCCR and NADR in their recently-submitted comments
to the Administrative Conference,285 any proposed disclosure obligations should apply both to
attorney and non-attorney representatives. Such disclosure obligations should be drafted in plain
language so that they are easily comprehensible to claimants, representatives, and members of
the public.
Third, any disclosure obligations should be drafted so that they do not intrude on any
established legal privileges, including the attorney-client privilege or (assuming it is applicable
in this context) the work-product doctrine. The obligations should not, among other things,
require a claimant (or his or her representative) to disclose his or her subjective opinions
regarding the evidence, as past proposed regulations arguably did.
Fourth, while SSA may override state rules of professional conduct, there is no reason
for SSA to do so: with one exception, the options laid out below are entirely consistent with state
rules of professional conduct, including those (to quote NOSCCR) requiring “the attorney’s
duties of confidentiality to the client and not to act in a way that is adverse to the client’s
interest.”286 The exception is the option to impose on claimants’ representatives the limited
obligation to disclose to SSA if his/her services were used to perpetuate a fraud. Many states’
rules of professional conduct, in accord with the ABA Model Rules of Professional Conduct,
already impose such an obligation. But some states’ rules do not.
283

See 20 C.F.R. §§ 404.459 (2012) (specifying penalties for claimant withholding of material evidence).
See 20 C.F.R. §§ 404.1740, 404.1745, 416.1540 & 416.1545 (2012) (detailing penalties and
suspension/disbarment process for representatives who engage in prohibited conduct, including false or misleading
assertions about a material fact or law).
285
See NOSSCR 2012 Letter, supra note 40 (“There is no basis to make a distinction in the obligations of attorneys
who represent claimants and non-attorneys who represent claimants. Both types of representatives have identical
responsibilities to their clients and to the Social Security Administration.”). Id. Letter from Trisha Cardillo, Pres.,
Nat’l Ass’n. of Disability Reps. to Amber Williams, Admin. Conf. of the U.S. (Sept. 14, 2012) (“NADR feels
strongly that there should be ONE standard, ONE set of rules for all representatives—attorney or non-attorney”)
(emphasis in original) (copy attached as Appendix D: Letter from National Association of Disability Reps., A-7
(Sept. 14, 2012).
286
NOSSCR 2012 Letter, supra note 40.
284

38

Fifth, any disclosure obligations should be written so as to minimize the extent to which
a claimant (and/or his or her representative) must make subjective judgments as to the legal
relevance of particular evidence. It is preferable, for instance, to identify a particular category of
documents that a claimant must identify or produce with some reasonable degree of certainty—
much as the discovery protocols in federal court do—rather than simply asking for the
identification or production of, say, “material” or “relevant” evidence.
B.

Options

There are a number of options (and of course several variants on each) for imposing
affirmative disclosure obligations that will ensure an adequate record. One approach would be to
require a claimant to produce, at some point before the ALJ renders a decision, 287 all
documents—whether favorable or unfavorable—bearing on the claimant’s entitlement to
benefits, not simply documents that support the claimant’s position. Such a regulation might
require, for instance, the claimant to produce all medical records from healthcare providers from
whom the claimant sought treatment or consultation for physical or mental impairement(s) that
concern or relate to the claim of disability. The claimant could be put on notice that the
obligation extends to unfavorable evidence, and key terms, like “medical records,” could be
defined with a reasonable degree of specificity. (Any number of other relevant records—
whether bearing on work history or otherwise—could of course be included within the disclosure
obligation.)
The federal civil litigation system includes several models on which such a disclosure
obligation could be based. A recent example is the model initial discovery protocols for use in
employment discrimination cases prepared by a group of federal judges and practicing attorneys
under the auspices of the Judicial Conference’s Advisory Committee on Civil Rules. Those
protocols, which judges participating in a pilot program can impose by court order, require the
identification and production of specific evidence by the parties. The protocols require a
plaintiff to produce, among other documents, “[a]ll communications concerning the factual
allegations or claim at issue in this lawsuit and any “diary, journal, and calendar entries
maintained by the plaintiffs concerning the factual allegations or claims at issue in this
lawsuit.”288 (The mandatory disclosure obligations of Rule 26(a)(1) of the Federal Rules,
discussed in Part III, are similar.) This model does not permit a party to disclose selectively only
information that supports his or her claim; it requires the disclosure of unfavorable information
as well. A disclosure requirement drafted along these lines would not, in the case of a claimant
represented by an attorney, put the attorney in conflict with his or her professional obligations.
The civil litigation system regularly calls upon parties (and, derivatively, their attorneys) to turn
over evidence adverse to their position in the case.
Claimants’ advocates might raise two arguably legitimate objections to the sort of
disclosure obligation described in the preceding two paragraphs: first, they might contend that
287

The timing of disclosure is, of course, closely related to the broader issue of whether (and, if so, when) the record
before the ALJ should be closed. See Final Rule Reestablishing Uniform Nat’l Disability Adjud. Provisions supra
note 7. SSA may wish to revisit this latter timing issue in the context of any future rulemaking it may undertake to
revise rules governing claimant disclosure obligations as addressed in this report.
288
See FJC PILOT EMPL. LIT. PROJECT, supra note 227.

39

such an obligation would require them to turn over documents that are not within their
“possession, custody, or control” (to use the phrase used in the discovery provisions of the
Federal Rules),289 much as they objected to the requirement proposed by SSA in 2005 that a
claimant turn over all evidence “available to you;’”290 and second, they might object that, even if
particular documents called for were available to claimants, the cost of obtaining them would be
significant or even prohibitive.
One alternative that would address both concerns would be to require a claimant to
produce all documents within a specific category (again, for example, medical records) in the
claimant’s (or his or her representative’s) “possession, custody, or control” (again, to use the
standard of the Federal Rules); or, if a narrower, more claimant-friendly standard is preferred, all
documents within the actual custody of the claimant or his or her representative.
Another possibility (which could be combined with the preceding one) would be to
require the claimant (in the case of medical records) to identify the name and contact information
of any healthcare provider (e.g., doctor, hospital, clinic) from which he or she sought treatment
or consulted regarding the impairment(s) on which his or her claimed entitlement to disability
benefits depends. (Here again the regulation could make explicit what is already implicit in such
a requirement—namely, that the claimant identify both healthcare providers whose records are
likely to support a claim of disability and those whose records are likely to undercut a claim of
disability.) The ALJ could then subpoena the record rather than requiring the claimant to obtain
it. Once again the self-executing disclosure provisions of the Federal Rules offer a model. Rule
26(a)(1)(A)(ii) requires the disclosure only of “a description by category and location . . . of all
documents, electronically stored information, and tangible things that the disclosing party has in
its possession, custody, or control and may use to support its claims or defenses.”291 It does not
actually require the production of the documents. If the other party wants the documents its
opponent has identified, it generally must then propound a discovery request.
Whatever approach is taken, key terms appearing in the disclosure regulation should be
defined with reasonable specificity. An example alluded to above can be found in the protocols
adopted by the Advisory Committee of Civil Rules for use in employment discrimination. They
identify such terms as “concerning,” “document,” and “identify” (the last term in the context of
referring to the identification of both persons and documents).
While any disclosure obligation should probably be directed at claimants (with the result
that both claimants and their representatives are bound by them), SSA may wish to consider
imposing one particular (and very limited) affirmative obligation on attorney and non-attorney
representatives: specifically, SSA may wish to require that representatives who learn that their
services were used in fraud must disclose that information to SSA. Attorney representatives who
are licensed in states that have adopted relevant ABA Model Rules (such as Model Rule 1.6)
already have this obligation. (Not every state has done so.) If the attorney learns that a client
used his services to perpetrate a fraud and failure to disclose would constitute assistance in that

289

FED. R. CIV. P. 34(a)(1).
NOSSCR 2012 Letter, supra note 40 (citing 70 Fed. Reg., supra note 6).
291
FED. R. CIV. P. 26(a)(1)(A)(ii) (2012).
290

40

fraud, then the attorney must disclose that fact.292 By incorporating this Model Rules standard in
SSA regulations for representatives, SSA will be able to ensure that all representatives—
attorneys as well as non-attorneys, and attorneys licensed in states that follow relevant provisions
in the Model Rules as well as attorneys licensed in other states—are subject to this
requirement.293 There is a strong federal interest in ensuring that claimants who deserve benefits
receive them and that claimants who do not deserve benefits do not receive them.
As this report shows, the ALJ adjudication phase of the SSA disability decision process
has been changed over the years from a more inquisitorial, single-decider model to one that now
often involves representation on the claimant’s side. But Supreme Court decisions from Perales
to Henderson have continued to characterize the decision process as nonadversarial, despite
increased representative involvement. This structure permits the agency to require duty of
disclosure obligations. Other federal agencies have already taken steps—which appear to be
accepted practice—that SSA might adopt in this setting. Moreover, even in a pure adversary
context, the FRCP Rule 26(a) experience shows that duties of candor are not inconsistent with
attorney obligations and their bar ethics rules are no barrier.
It is, of course, SSA’s decision how best to proceed with the creation of procedural
regulations mandating disclosure of adverse information described herein. The two prior
rulemakings have given SSA substantial background information and presumably any future
rulemaking would do the same. The Office of the Chairman of the Administrative Conference of
the United States believes that the Social Security Administration has significant latitude to
decide how best to proceed on the question of the duty of candor and the submission of evidence.

292

MODEL RULES OF PROF’L CONDUCT R. 1.6(b), 4.1 (2012).
The Board of Immigration Appeals (“BIA”) has adopted a regulation that imposes on all immigration
practitioners—both attorneys and non-attorneys—an ethics standard that is based upon, but actually stricter than, the
analogous Model Rules provision.
Compare 8 C.F.R. § 1003.102(c) authorizing the BIA to sanction an immigration practitioner who
[k]nowingly or with reckless disregard makes a false statement of material fact or law, or
willfully misleads, misinforms, threatens, or deceives any person (including a party to a case or an
officer or employee of the Department of Justice), concerning any material and relevant matter
relating to a case, including knowingly or with reckless disregard offering false evidence. If a
practitioner has offered material evidence and comes to know of its falsity, the practitioner shall
take appropriate remedial measures
with MODEL RULES OF PROF’L CONDUCT R. 3.3 (2012). The BIA regulation is similar to, but stricter than, Model
Rule 3.3 because it prohibits conduct that is done “knowingly” or “with reckless disregard.” See Cyrus D. Mehta,
What Remedial Measures Can A Lawyer Take to Correct False Statements Under New York’s Ethical Rules?, 42ND
ANNUAL IMMIGRATION & NATURALIZATION INSTITUTE (2009).
293

41

APPENDICES
APPENDIX A: METHODOLOGY
This report reviewed statutes, regulations, and other publicly-available information
relating to federal agencies to learn the similarities and differences between SSA’s disability
benefits programs and these agencies’ disclosure and professional conduct standards for
adjudications or other administrative programs, as well as law review articles and other written
materials addressing the ethics issues that arise in that context. This research was supplemented
by interviews by the consultant (both in-person and by phone) with attorneys, legal academics,
and government officials at the Departments of Commerce, Justice, Veterans Affairs, and the
Social Security Administration. In addition, written questions were submitted to the two leading
organizations of claimants’ representative (NOSSCR and NADR). (See Appendices C and D.)

A-1

APPENDIX B: COMPARISON OF TEXT OF SSA RULEMAKING INITIATIVES RE:
REPRESENTATIVE CONDUCT & SUBMISSION OF EVIDENCE (1995-2006)
Relevant section: Rules of conduct and standards of responsibility
for representatives

Relevant section: Evidence

1995 Draft Rule

1997 NPRM

1998 Final Rule

2005 NPRM

2006 Final Rule

Representatives must
“[e]xercise diligence in
developing the record on
behalf of his or her client
by obtaining and
submitting, as soon as
possible, all information
and evidence intended
for inclusion in the
record.” Representatives
must also “[p]romptly
comply, at every stage of
the administrative review
process, with [SSA’s]
requests for information
and evidence” and
provide evidence relating
to the “matters at issue.”

A representative shall:
(1) Promptly obtain
[and submit] all . . .
evidence which . . .
support[s] . . . the
claim . . .;
(2) Comply with
[SSA’s] requests for .
. . evidence . . . . This
includes an obligation
to:
(i) Provide, upon
request, identification
of all . . . information
pertaining to the
claimed right or
benefit or notification
by the representative .
. . that the claimant
does not consent to
the release of some or
all of the material;
and
(ii) Provide, upon
request, all evidence
and documentation . .
. which the
representative or the
claimant either has
within his or her
possession or may
readily obtain, or
notification by the
representative after
consultation with the
claimant that the
claimant does not
consent to the release
of some or all of the
material.

A representative
must . . .:
(1) Act with
reasonable
promptness to
obtain [and submit]
. . . evidence that
the claimant wants
to submit in support
of his or her claim .
...
(2) Assist the
claimant in
complying . . . with
[SSA’s] requests
for . . . evidence . . .
about:
(i) The claimant's
age;
(ii) The claimant's
education and
training;
(iii) The claimant's
work experience;
(iv) The claimant's
daily activities both
before and after the
date the claimant
alleges that he or
she became
disabled;
(v) The claimant's
efforts to work; and
(vi) Any other
factors showing
how the claimant's
impairment(s)
affects his or her
ability to work.

You must provide
evidence showing
how your
impairment(s)
affect(s) your
functioning during
the time you say
that you are
disabled, and any
other information
that we need to
decide your claim,
including evidence
that you consider to
be unfavorable to
your claim.

You must provide
evidence, without
redaction, showing
how your
impairment(s)
affects your
functioning during
the time you say that
you are disabled,
and any other
information that we
need to decide your
claim.

A-2

APPENDIX C: LETTER FROM NATIONAL ORGANIZATION OF SOCIAL SECURITY CLAIMANTS’
REPRESENTATIVES

NATIONAL ORGANIZATION OF
SOCIAL SECURITY CLAIMANTS' REPRESENTATIVES
(NOSSCR)
560 Sylvan Avenue • Englewood Cliffs, NJ 07632
Telephone: (201) 567-4228 • Fax: (201) 567-1542 • email: nosscr@worldnet.att.net

Executive Director
Nancy G. Shor
September 14, 2012

Amber G. Williams
Administrative Conference of the United States
1120 20th St., NW Suite 706 South
Washington, DC 20036
Re: SSA “duty of candor” study
Dear Ms. Williams:
Thank you for the opportunity to provide comments on the ACUS study of the Social Security
Administration’s regulations regarding the duty of candor and submission of evidence in disability
claims. We have provided answers to the questions in your recent email.
1. What is NOSSCR’s position on SSA’s current regulations and/or policies regarding the
duties of representatives and the submission of evidence?
Under current regulations, a claimant is required to disclose material facts in his or her claim for benefits
and to prove disability.294 This duty extends to the representative under SSA’s “Rules of conduct and
standards of responsibility for representatives.”295 We believe that the current regulations regarding the
duty of claimants and representatives to submit evidence work well, especially when combined with the
duty to inform SSA of all treatment received.

2. What suggestions does NOSSCR have for improving the current regulations and/or policies
regarding the duties of representatives and submission of evidence?
We believe that the current statutory and regulatory scheme provide adequate procedures and tools for
SSA to address submission of evidence issues.
294
295

20 C.F.R. §§ 404.1512(a) and 416.912(a).
20 C.F.R. §§ 404.1740(b)(1) and 416.1540(b)(1).

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APPENDIX C: NOSSCR LETTER (CON’T)
SSA’s current Rules of Conduct establish a procedure for handling alleged violations.296 We have long
advocated for use of the procedures in Rules of Conduct if the Agency believes there has been a violation.
The claimant is already required to disclose material facts in his or her claim for benefits.297 This duty
extends to the representative as an affirmative duty under 20 C.F.R. §§ 404.1740(b)(1) and
416.1540(b)(1). Further, 42 U.S.C. § 1320a-8(a)(1)(A), enacted in 2004, permits imposition of a civil
monetary penalty (CMP) or sanctions if:
[The individual] omits from a statement or representation … or otherwise withholds disclosure of,
a fact which the person knows or should know is material to the determination of any initial or
continuing right to [benefits] …, [or] if the person knows, or should know, that the statement or
representation with such omission is false or misleading or that the withholding of such disclosure
is misleading ….
This statutory requirement applies to representatives, as well as claimants.

3. What legal or practical concerns would NOSSCR have if claimants and their representatives
have an obligation to share all information/evidence in their possession and/or of which they are
aware that is material to the determination of a claimant’s eligibility for disability benefits?
A requirement to provide “all” evidence may conflict with state bar ethics rules which limit the
submission of evidence that could be considered adverse to a client. In every state, attorney
representatives are currently bound by state bar rules that forbid an attorney from engaging in
professional conduct involving dishonesty, fraud, deceit, or willful misrepresentation. SSA’s Rules of
Conduct for all representatives impose similar prohibited actions.
SSA previously proposed adding a requirement to 20 C.F.R. §§ 404.1512(a) and 416.912(a) that the
claimant submit all evidence “available to you.” 298 This proposed change was rejected when the final
rule was published.299 The proposed rule required the claimant to submit all evidence “available to you,”
including “evidence that you consider to be unfavorable to your claim.” The preface clarified that this
included adverse evidence, i.e., evidence that “might undermine” or “appear contrary” to the claimant’s
allegations.300
In NOSSCR’s comments, we raised concerns that the proposed regulation could very well set a trap for
unsuspecting claimants. What is meant by “available”? Only that evidence which has been obtained or
all evidence that exists, regardless of the cost, time, or effort to obtain it? What is meant by evidence you
“consider” to be unfavorable? Is this too subjective? Who makes the decision that evidence is

296

20 C.F.R. §§ 404.1740 and 416.1540.
20 C.F.R. §§ 404.1512(a) and 416.912(a).
298
70 Fed. Reg. 43590 (July 27, 2005).
299
71 Fed. Reg. 16424 (Mar. 31, 2006).
300
70 Fed. Reg. 43602.
297

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APPENDIX C: NOSSCR LETTER (CON’T)
“available”? Would a claimant be penalized if an adjudicator decided that there was noncompliance?
Does this requirement place an undue burden on claimants with mental or cognitive impairments?
We believe that a requirement to provide “all information/evidence in [the claimants’] possession and/or
of which they are aware that is material to the determination” of a disability determination is equally
problematic and raises the same concerns. What does it mean to be “aware”? How would a claimant
know what is “material” to the disability determination?
Another concern that we raised about the previous proposed requirement to submit “all” evidence is that it
could open the process to manipulation by those who have a personal grudge against the claimant or
interests adverse to the claimant, e.g., former spouses, creditors, insurance companies.
In addition to the 2005 proposed rule, SSA previously rejected a proposed regulation that raised similar
ethical concerns. In 1998, SSA issued the final rule on Standards of Conduct for Claimant
Representatives.301 The proposed rule required representatives to comply with SSA requests for
information and evidence. To protect a client’s confidentiality, the representative could notify SSA that
“the claimant does not consent to the release of some or all of the [requested] material.” Many
commenters, including the American Bar Association and NOSSCR, objected to this provision as a “red
flag” that would permit ALJs and SSA to draw adverse inferences based on this statement. In the final
rule, SSA deleted this provision “[b]ecause of the confusion and ethical concerns surrounding this
proposed language….”302
Our members are very concerned about situations where rules could conflict with State bar ethics rules
regarding the attorney’s duties of confidentiality to the client and not to act in a way that is adverse to the
client’s interest. In every state, attorney representatives are currently bound by state bar rules that forbid
an attorney from engaging in professional conduct involving dishonesty, fraud, deceit, or willful
misrepresentation. An attorney who violates these rules is subject to disciplinary proceedings and
possible sanction by the state bar. Existing bar rules in every state also require an attorney to zealously
advocate on behalf of a client. An attorney who violates these rules is also subject to sanction by the state
bar.

4. What legal or practical concerns would NOSSCR have if there were distinctions for nonlawyer and lawyer representatives?

There should be a single approach for all representatives. The current Rules of Conduct and the
statutory process for imposing civil monetary penalties apply to all representatives and do not
distinguish between attorneys and non-attorneys. We believe that this is the appropriate
approach. While attorney representatives are also required to comply with State bar rules, we
advocate that the Agency apply the current Rules of Conduct where appropriate.

301
302

63 Fed. Reg. 41404 (Aug. 4, 1998).
63 Fed. Reg. 41413.

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APPENDIX C: NOSSCR LETTER (CON’T)
There is no basis to make a distinction in the obligations of attorneys who represent claimants and nonattorneys who represent claimants. Both types of representatives have identical responsibilities to their
clients and to the Social Security Administration. The current rules and regulations appropriately apply to
each.
The groups do differ in that attorneys are also subject to the rules of the bars to which they are admitted.
This fact, however, does not support the concept of SSA’s setting out different obligations to the two
groups.

In addition, having two separate sets of administrative procedures will be onerous and confusing
for claimants and is likely to make the process less efficient from the Agency’s perspective.
Very truly yours,

Nancy G. Shor
Executive Director

Ethel Zelenske
Director of Government Affairs

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APPENDIX D: LETTER FROM NATIONAL ASSOCIATION OF DISABILITY REPRESENTATIVES
From: Amber Williams <AWilliams@acus.gov>
Subject: NADR's Comments
Date: September 14, 2012 6:43:31 PM EDT
To: Kathleen Clark [email deleted]
Hi Kathleen,
I’ve included NADR’s comments below for your review and inclusion into your report. Please
let me know if you have any questions.
Kind regards,
Amber

1.
What is NADR’s position on SSA’s current regulations and/or policies regarding the
duties of representatives and the submission of evidence?
NADR takes very seriously SSA’s Rules of Conduct for representatives at 20 CFR 404.1740 et.
seq, and emphasizes heightened ethics for Social Security representatives in all matters for all of
our members, not just with submission of evidence. Our Accredited Disability Representative
program requires adherence to a strict standard, and all of our training programs and conferences
include ethics sessions. From a pragmatic standpoint, we emphasize that a representative’s
reputation can be forever ruined, not to mention s/he can be sanctioned, for violating any of the
rules of conduct.
2.
What suggestions does NADR have for improving the current regulations and/or policies
regarding the duties of representatives and submission of evidence?
The current regulations regarding the duty of claimants and representatives to submit evidence
work well. 20 CFR 404.1740(c)(3) prohibits a representative from knowingly making or
presenting false or misleading statements. 20 CFR 404.1740(b)(1) indicates as an affirmative
duty that a representative must act to submit the evidence the claimant wants to submit in support
of his or her claim. The regulations and policies provide the ALJ with the information s/he
needs to make the mandated findings, while protecting the claimant's right to privacy. It is the
responsibility of the claimant and his or her representative to prove that the claimant’s limitations
meet SSA's definition of disability.
3.
What legal or practical concerns would NADR have if claimants and their representatives
have an obligation to share all information/evidence in their possession and/or of which they are
aware that is material to the determination of a claimant’s eligibility for disability benefits?
Given the non-adversarial nature of these proceedings, the key determination is whether or not

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APPENDIX D: NADR LETTER (CON’T)
information/evidence is, in fact, “material” to the determination. Who better to make that
decision on behalf of the claimant, if not the representative? Some information is obviously
material – e.g., evidence of earnings/work activity to assist the ALJ in making the step one
finding. Other information may not be material at all, from the claimant’s perspective.
Balancing the need for truth with protecting the claimant’s right to privacy is not an easy act, but
is vital.
4.
What legal or practical concerns would NADR have if there were distinctions for these
obligations for non-lawyer and lawyer representatives?
For our attorney members, being required to provide "all" evidence could place the attorney in
the position of having violated one of his/her bar rules. NADR feels strongly that there should
be ONE standard, ONE set of rules for all representatives – attorney or non-attorney. Creating
separate rules would not only be a logistics nightmare for SSA and for the representative
community, but one group may logically claim a disadvantage, from both a legal and a practice
standpoint. We believe that representatives should not only be zealous advocates, but officers of
this system, equally invested in protecting the integrity of the program and facilitating the claim
process, not hindering it.

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APPENDIX E: SSA DISPOSITION COUNT BY REPRESENTATION (FY 2005-2011)

Annual Dispositions by Type of Representation (FY 2005-11)
Fiscal
Year

Claimants w/
Non-attorney
Representative

Non-Atty
Rep %

Claimants w/
Attorney
Representative

Atty
Rep %

Total # of
Represented
Claimants

Total
Rep %

Total # of
Unrepresented
Claimants

Total
Unrep %

Total
Dispositions

2005
2006
2007
2008
2009
2010
2011

48,825
52,027
50,348
54,328
67,783
75,354
80,198

9.4%
9.3%
9.2%
9.4%
10.3%
10.2%
10.1%

338,639
364,783
361,883
386,624
446,994
499,626
534,548

65.2%
65.3%
66.0%
67.2%
67.6%
67.7%
67.4%

387,464
416,810
412,231
440,952
514,777
574,980
614,746

74.6%
74.6%
75.2%
76.6%
77.9%
78.0%
77.5%

131,900
142,168
135,721
134,430
146,066
162,636
178,817

25.4%
25.4%
24.8%
23.4%
22.1%
22.0%
22.5%

519,364
558,978
547,952
575,382
660,843
737,616
793,563

[Source: SSA CPMS MI and DART (DITI) Data - Prepared by ODAR, OESSI, DMIA (9/28/12)]

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APPENDIX F: EXCERPTS OF AMERICAN BAR ASSOCIATION MODEL RULES OF PROFESSIONAL
CONDUCT (2002)
Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
*****
(2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission of
a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.
Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
*****
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to
know of its falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than
the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is
APPENDIX F: EXCERPTS OF ABA MODEL RULES (CONT.)

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false.
*****
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts are
adverse.

Rule 4.1 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
*****
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
*****

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APPENDIX G: EXCERPTS OF FEDERAL RULE OF CIVIL PROCEDURE, RULE 26 (1993)

Rule 26. General Provisions Governing Discovery; Duty of Disclosure
(a) Required Disclosures; Methods to Discover Additional Matter.
(1) Initial Disclosures. Except to the extent otherwise stipulated or directed by order or
local rule, a party shall, without awaiting a discovery request, provide to other parties:
(A) the name and, if known, the address and telephone number of each individual
likely to have discoverable information relevant to disputed facts alleged with
particularity in the pleadings, identifying the subjects of the information;
(B) a copy of, or a description by category and location of, all documents, data
compilations, and tangible things in the possession, custody, or control of the
party that are relevant to disputed facts alleged with particularity in the pleadings;
(C) a computation of any category of damages claimed by the disclosing party,
making available for inspection and copying as under Rule 34 the documents or
other evidentiary material, not privileged or protected from disclosure, on which
such computation is based, including materials bearing on the nature and extent of
injuries suffered; and
(D) for inspection and copying as under Rule 34 any insurance agreement under
which any person carrying on an insurance business may be liable to satisfy part
or all of a judgment which may be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment.
Unless otherwise stipulated or directed by the court, these disclosures shall be made at or
within 10 days after the meeting of the parties under sub-division (f). A party shall make its
initial disclosures based on the information then reasonably available to it and is not excused
from making its disclosures because it has not fully completed its investigation of the case or
because it challenges the sufficiency of another party's disclosures or because another party has
not made its disclosures.
*****
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance
with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the claim or defense of any other
party, including the existence, description, nature, custody, condition, and location of any
books, documents, or other tangible things and the identity and location of persons
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APPENDIX G: EXCERPTS OF FRCP 26 (1993) (CONT.)

having knowledge of any discoverable matter. The information sought need not be
admissible at the trial if the information sought appears reasonably calculated to lead to
the discovery of admissible evidence.

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APPENDIX H: GAO CHART DEPICTING VA DISABILITY CLAIM APPEAL PROCESS

(Source: U. S. Gov’t Accountability Office, GAO-11-812, Veterans Disability Benefits: Clearer Information for
Veterans and Additional Performance Measures Could Improve the Appeals Process 6 (Sept. 2011))

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