REPORT FOR THE
A DMINISTRATIVE C ONFERENCE OF THE U NITED S TATES

REGULATION OF REPRESENTATIVES IN AGENCY
ADUDICATIVE PROCEEDINGS
George M. Cohen
University of Virginia School of Law

This report was prepared for the consideration of the Administrative Conference of the United States. It does not
necessarily reflect the views of the Conference (including its Council, committees, or members).

Recommended Citation
George M. Cohen, Regulation of Representatives in Agency Adjudicative Proceedings (Dec. 3, 2021) (report to the
Admin. Conf. of the U.S.).

REGULATION OF REPRESENTATIVES IN AGENCY ADJUDICATIVE
PROCEEDINGS
George M. Cohen
December 3, 2021
I. INTRODUCTION AND SCOPE……………………………………………………….. 3
II. METHODOLOGY………………………………………………………………….. 5
III. WHO MAY PRACTICE BEFORE THE AGENCIES?.................................................... 7
A. Attorney Representatives……………………………………………….. 7
B. Non-Attorney Representatives………………………………………….. 10
IV. STRUCTURE OF THE AGENCY PROFESSIONAL CONDUCT RULES……………… 13
A. Labeling of the Rules…………………………………………………… 14
B. Number and Location of the Rules……………………………………... 15
C. Coordination with Other Agencies……………………………………... 18
D. Incorporation of Other Ethics Rules…………………………………… 20
V. CONTENT OF THE AGENCY PROFESSIONAL CONDUCT RULES…………………… 23
VI. IMPLEMENTATION AND ENFORCEMENT OF THE AGENCY PROFESSIONAL
CONDUCT RULES…………………………………………………27
A. Accessibility and Guidance……………………………………………… 27
B. Publication of Disciplinary Orders……………………………………… 29
C. Frequency of Discipline…………………………………………………. 30
D. Referrals…………………………………………………………………. 32
E. Reciprocal Discipline……………………………………………………. 35
F. Who Enforces the Rules within the Agency?............................................... 39
VII. CONCLUSIONS AND RECOMMENDATIONS……………………………………….. 41
A. Information and Transparency…………………………………………… 42
B. Coordination……………………………………………………………… 43
C. Harmonization……………………………………………………………. 44
APPENDIX…………………………………………………………………………….. 46

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REGULATION OF REPRESENTATIVES IN AGENCY ADJUDICATIVE
PROCEEDINGS
George M. Cohen
December 3, 2021
I. INTRODUCTION AND SCOPE
Many federal agencies conduct adjudicative proceedings and permit claimants or parties
to those proceedings to be represented by attorney or non-attorney practitioners. Almost fifty of
these agencies have one or more rules specifically regulating the conduct of these
representatives.1 The number of agencies with such rules has steadily increased from the time the
first agencies adopted rules in the mid-twentieth century to the last two decades, in which more
than a dozen agencies adopted new rules or modified existing ones. In a previously published
paper, I engaged in the first broad comparison of these rules across agencies, but that paper
offered only a preliminary and general analysis of these rules.2 The purpose of this study is to
undertake a detailed examination of how these rules work in practice in a sample of agencies, to
make recommendations about how existing rules might be improved, and provide guidance to
agencies lacking such rules about whether to adopt them and if so what form they should take.
The scope of the study is limited in several important ways. First, the study focuses
primarily on what I will call agency “rules of conduct” or “rules of professional conduct,” the
latter of which is the term the American Bar Association (ABA) and most states currently use to
refer to their ethics rules that regulate the practice of law by lawyers.3 What distinguishes rules
of conduct from other agency rules, such as more general rules of agency procedure and practice,
is that they both apply to conduct by representatives seeking to practice or practicing before an
agency,4 and provide for a process that can result in discipline or other consequences for those
representatives, including the potential for disqualifying those representatives from practicing
before the agency in a particular case or for a period of time, or otherwise restricting the right of
those representatives to practice as representatives before the agency.5 Second, the study focuses
on those rules of conduct that apply in agency adjudicative proceedings involving at least some
1

See George M. Cohen, The Laws of Agency Lawyering, 84 Fordham L. Rev. 1963, 1991 (2016) (Appendix

A).
2

Id.
See generally ABA Model Rules of Professional Conduct. All states and the District of Columbia now
base their disciplinary rules for lawyers on the ABA Model Rules. The ABA had referred to previous versions of its
conduct rules as Canons of Professional Ethics and the Model Code of Professional Responsibility.
4
The conduct need not occur in the proceeding itself. In particular, as discussed below, prior conduct that
resulted in discipline or other sanction by another agency, court, or other authority can be the subject of “reciprocal
discipline.” In addition to “rules of conduct,” I will also consider rules that determine who qualifies to act as a
representative.
5
I use the term “discipline” as opposed to “sanctions,” because “discipline” is the term that tends to be
applied to consequences for a representative in a proceeding that follow some kind of process. See, e.g., Rules of the
United States District Court for the District of Columbia, LCvR 83.12-18 (discussing “Rules of Disciplinary
Enforcement” and the procedure for enforcing those rules).
3

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oral argument or presentation resulting in some determination that affects the rights or interests
of individual parties, as opposed to agency activities such as formal rulemaking, investigations,
or requests for written documents (though reference will sometimes be made to rules governing
those other contexts).6 Third, the study focuses only on rules of conduct that apply to private
attorneys or non-attorney representatives practicing before federal agencies in agency
proceedings. It does not address rules applicable to government lawyers representing the
agencies in these proceedings.
The adoption of rules of professional conduct by agencies, at least as applied to lawyer
representatives, has not been universally applauded. Some have raised questions about agency
authority to adopt such rules in the absence of express congressional authorization,7 though
several federal appellate courts have found that authority to adopt these rules exists even in the
absence of such express authorization.8 In addition, the ABA in 1982, in response to a proposal
for a set of Model Rules for Agency Discipline, adopted a resolution endorsing the enactment of
federal legislation that would preclude federal agencies from adopting “standards of practice to
govern the professional conduct of attorneys who represent clients” other than those “affecting
such attorney’s participation in a particular proceeding before it, as immediately necessary to
maintain order in or assure the integrity of such proceeding.”9 Since that time, Congress has not
6

The Administrative Procedure Act in 5 U.S.C. § 551(12) defines “agency proceeding” as “an agency
process as defined by paragraphs (5), (7), and (9) of this section.” Section 551(7) defines “adjudication” as “agency
process for the formulation of an order.” See also ABA Model Rules of Professional Conduct, Rule 1.0(m) (defining
“tribunal” to include an “administrative agency . . . acting in an adjudicative capacity,” and then defining
“adjudicative capacity” to involve a situation in which “a neutral official, after presentation of evidence or legal
argument by a party or parties, will render a binding legal judgment directly affective a party’s interests in a
particular matter”).
7
For a general discussion of the issue, see Michael P. Cox, Regulation of Attorneys Practicing Before
Federal Agencies, 45 Case W. Res. L. Rev. 173 (1984).
8
See Checkosky v. SEC, 23 F.3d 452, 455-56, 468-472, 493-94 (D.C. Cir. 1994) (separate opinions of
Judge Silberman, Judge Randolph, and Judge Reynolds in case involving discipline of accountants); Davy v. SEC,
792 F.2d 1418, 1421 (9th Cir. 1986) (“There can be little doubt that the Commission, like any other institution in
which lawyers or other professionals participate, has authority to police the behavior of practitioners before it.”);
Touche Ross & Co. v. SEC, 609 F.2d 570, 582 (2d Cir. 1979) (“Although there is no express statutory provision
authorizing the Commission to discipline professionals appearing before it, Rule 2(e), promulgated pursuant to its
statutory rulemaking authority, represents an attempt by the Commission to protect the integrity of its own processes
[, and ] provides the Commission with the means to ensure that those professionals, on whom the Commission relies
heavily in the performance of its statutory duties, perform their tasks diligently and with a reasonable degree of
competence.”); Koden v. U.S. DOJ, 564 F.2d 228, 233 (7 th Cir. 1977) (“It is elementary that any court or
administrative agency which has the power to admit attorneys to practice has the authority to disbar or discipline
attorneys for unprofessional conduct.”); see also Goldsmith v. Bd. of Tax Appeals, 270 U.S. 117, 122 (1926)
(rejecting arguments that the absence of explicit statutory authorization to regulate attorney conduct indicated that
Congress did not intend the Board of Tax Appeals to exercise such power.”).
9
See ABA Annual Meeting 1982, joint resolution of Section of Administrative Law, Section of Natural
Resources Law, Section of Public Utility Law, and Federal Communications Bar Association. The resolution also
recommended that the proposed legislation permit federal agencies to exercise disciplinary authority over an
attorney “in conformity with formal disciplinary action taken against such attorney in a jurisdiction where such
attorney is admitted to practice.” This statement refers to “reciprocal discipline,” which the report discusses below.

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enacted the ABA’s proposed legislation, agency rules have proliferated, and the ABA Model
Rules of Professional Conduct have effectively incorporated the agency professional conduct
rules in the context of agency adjudication.10 In a meeting with ABA representatives at the outset
of this project, those representatives reiterated the positions taken in the 1982 resolution.
Because this project’s scope is limited to agency professional conduct rules in adjudication, the
rules discussed here do not conflict with the resolution, except possibly to the extent that they
authorize disqualification of lawyer representatives beyond the proceeding in which the conduct
occurred.
The remaining sections of the report deal with several topics. Section II describes the
methodology used in the study. Section III considers the question of who may practice before the
agencies as a representative, discussing both attorney and non-attorney representatives. Section
IV considers a variety of issues concerning the structure of agency rules of conduct: how the
rules are labeled; the number and location of the rules; the degree of coordination with the rules
of other agencies; and whether the rules incorporate other state or federal ethics rules. Section V
compares the content of the professional conduct rules in the sampled agencies. Section VI
addresses topics concerning how the rules are implemented and enforced: the accessibility of and
guidance accompanying the rules; the public disclosure of final disciplinary orders; the
frequency of discipline; the practice of referring conduct issues to, and receiving referrals from,
state or other disciplinary authorities; the practice of reciprocal discipline; and who within
agencies enforces the rules. Section VII offers conclusions and recommendations.
II. METHODOLOGY
With the assistance of Gavin Young of ACUS, I conducted a series of interviews with a
select group of eight agencies that have professional conduct rules.11 The interviews took place
between September 15, 2021 and October 14, 2021. The interviews involved between one and
three representatives from each agency, whose roles included administrative law judge, deputy
chief counsel, general counsel, assistant general counsel, disciplinary counsel, managing counsel,
and executive secretary to the agency. Although the interviewees were all knowledgeable about
the rules and practices of their agencies, they were not authorized to speak on behalf of the
agencies and the observations and opinions they provided were their own. To preserve at least
some degree of anonymity, the report will simply identify that a comment or observation was
10

See ABA Model Rules of Professional Conduct, Rule 1.0(m) (defining “tribunal” to include an
“administrative agency . . . acting in an adjudicative capacity”); Rule 3.4(c) (stating that a lawyer “shall not …
knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that
no valid obligation exists) (emphasis added); Rule 8.5(b)(1) (“In any exercise of the disciplinary authority of this
jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in connection with a
matter before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal
provide otherwise. . . .”) (emphasis added).
11
We also interviewed the US Department of State, which currently lacks professional conduct rules, but
which also does not conduct many adjudicatory-type hearings apart from hearings in certain passport matters. See 22
U.S.C. Part 51, Subpart F. Although the interview yielded some interesting information, because it is tangential to
the subjects addressed in this report, the information is not included here.

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made by an interviewee from a state agency. The agencies we selected for interview are not a
random sample, and they omit some agencies with significant professional conduct rules, such as
the US Patent and Trademark Office (USPTO), the Internal Revenue Service (IRS), the Surface
Transportation Board (STB), and the financial regulatory agencies. Nevertheless, the agencies
interviewed represent a wide range of agency types and approaches to professional conduct rules.
The agencies interviewed, in the order in which they appear in the Code of Federal
Regulations, and with the date its rules were first adopted, are: the US Department of Agriculture
(USDA) (1967), the Department of Homeland Security (DHS) (1958), the Securities and
Exchange Commission (SEC) (1935),12 the Federal Energy Regulatory Commission (FERC)
(1978), the Social Security Administration (SSA) (1998), the Department of Labor (DOL)
(1983), the National Labor Relations Board (NLRB) (1959), and the Department of Veterans
Affairs (VA) (1988). Thus, in all the interviewed agencies, the professional conduct rules have
been in effect for at least 20 years and in some cases for more than 60 years.13 Most of these
agencies have significantly modified their rules in recent years.14 And for most of these agencies,
the rules of conduct for practitioners have at least some express Congressional authorization.15
12

The original SEC rule, Rule 2(e), was promulgated in 1935 but was redesignated as Rule 102(e) in 1995.
The text of the relevant language did not change. 67 Fed. Reg. 71,670, 71.671 n.11.
13
At least 15 other agencies have adopted professional conduct rules since 1998, when SSA adopted its
rules. See George M. Cohen, The Laws of Agency Lawyering, 84 Fordham L. Rev. 1963, 1999 (2016) (Appendix D).
14
NLRB modified its rules in 1996; DHS in 2000 and 2008; VA 2003 and 2019; DOL (2015); and SSA in
2017. The SEC added the Sarbanes-Oxley rules in 2003.
15
See 7 U.S.C. § 2356 (directing the Secretary of Agriculture to “prescribe regulations governing the
admission to practice and conduct of persons representing applicants or other parties before the Plant Variety
Protection Office” and permitting the Secretary, after notice and opportunity for a hearing, to “suspend or exclude,
either generally or in any particular case, from further practice before the [Office] any person shown to be
incompetent or disreputable or guilty of gross misconduct”) (USDA); 8 U.S.C. § 1229a(b)(6) (directing the Attorney
General to define, by regulation, “frivolous behavior for which attorneys may be sanctioned” and to “impose
appropriate sanctions (which may include suspension and disbarment) in the case of frivolous behavior” without
“limiting the authority of the Attorney General to take actions with respect to appropriate behavior) (EOIR/DHS);
15 U.S.C. § 7245 (directing the SEC to “issue rules ... setting forth minimum standards of professional conduct for
attorneys appearing and practicing before the Commission in any way in the representation of issuers”) (SEC,
Sarbanes-Oxley); 15 U.S.C. § 78d-3(a) (authorizing the SEC to “censure any person, or deny, temporarily or
permanently, to any person the privilege of appearing or practicing before the Commission in any way, if that person
if found by the Commission, after notice and opportunity for hearing in the matter (1) not to possess the requisite
qualifications to represent others; (2) to be lacking in character or integrity, or to have engaged in unethical or
improper conduct [as defined in the statute]; or (3) to have willfully violated, or willfully aided and abetted the
violation of, any provision of the securities laws or the rules and regulations issued thereunder”) (SEC); 33 U.S.C. §
931(2)(B)(ii) (stating that the Secretary of Labor may preclude practitioners from presenting claimants if the
representative “has engaged in fraud in connection with the presentation of a claim under this or any workers’
compensation statute ....”) (DOL); 38 U.S.C. § 5904(a)(2) (The VA Secretary “shall prescribe in regulations
(consistent with the Model Rules of Professional Conduct of the American Bar Association) qualifications and
standards of conduct for individuals recognized under this section ....”) (VA): 42 U.S.C. § 406(a)(1) (“The
Commissioner of Social Security may, after due notice and opportunity for hearing, suspend or prohibit from further
practice before the Commissioner any such person, agent, or attorney who refuses to comply with the
Commissioner’s rules and regulations or who violates any provision of this section for which a penalty is
prescribed.”) (SSA); 42 U.S.C. § 1383(d)(2)(A) (applying § 406 to supplemental security income claims) (SSA).

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The report will primarily focus on these eight agencies, as well as to some extent the
USPTO,16 which is the subject of a recent in-depth study of practitioner discipline.17 I will also
make references to other agencies at various points for comparison.
III. WHO MAY PRACTICE BEFORE THE AGENCIES?
An important component of rules governing representative practice in agency
adjudications is the regulation of who may serve as a representative. The Administrative
Procedure Act states:
A person compelled to appear before in person before an agency or representative thereof
is entitled to be accompanied, represented, and advised by counsel or, if permitted by the
agency, by other qualified representative. A party is entitled to appear in person or by or
with counsel or other duly qualified representative in an agency proceeding.18
Many agencies permit non-attorneys, in addition to attorneys, to serve as representatives of
claimants and parties in agency adjudicative proceedings. Although the primary focus of this
report is rules of conduct for representatives, this section considers the separate but related
question of qualification rules for these representatives.
A. Attorney Representatives
The Agency Practice Act (APA) provides that “[a]n individual who is a member in good
standing of the bar of the highest court of a State may represent a person before an agency on
filing with the agency a written declaration that he is currently qualified as provided by this
subsection and is authorized to represent the particular person on whose behalf he acts.”19 Thus,
the statute “prohibits agencies from erecting their own supplemental admission requirements for
16

Express Congressional authorization for USPTO conduct rules for representatives is in 35 U.S.C. §
2(b)(2)(D) (stating that the USPTO “may establish regulations, not inconsistent with law, which ... may govern the
recognition and conduct of agents, attorneys, or other persons representing applicants or other parties before the
Office ....”).
17
Jon J. Lee, Double Standards: An Empirical Study of Patent and Trademark Discipline, 61 B.C. L. Rev.
1613 (2020). The USPTO rules were first adopted in 1985 and significantly revised in 2013 to conform to the ABA
Model Rules of Professional Conduct.
18
5 U.S.C. § 555(b). See, e.g., Smiley v. Director, Office of Workers Compensation Programs, 984 F.2d
278, 282 (9th Cir. 1993) (finding that claimant seeking benefits under the Longshore and Harbor Workers’
Compensation Act before the DOL Benefits Review Board had a “statutory right to be advised and represented by
counsel” under § 555). A recent case interpreted the second sentence of 555(b) to entitle a party to a choice of being
represented by counsel or other representative in an agency proceeding even if the party is not compelled to appear
before the agency. Salem v. Pompeo, 432 F. Supp.3d 222, 231-32 (E.D.N.Y. 2020). The rule has been interpreted to
include the right to a lawyer of one’s choice; thus, before an agency may exclude an attorney from its proceedings, it
must provide “concrete evidence” that the attorney’s presence, when desired by the client, would “obstruct and
impede” the proceeding. SEC v. Csapo, 533 F.2d 7, 10-11 (D.C. Cir. 1976).
19
5 U.S.C. § 500(b). The USPTO is exempted from this provision in 5 U.S.C. § 500(e). “State” is defined
as “a State, a territory or possession of the United States including a Commonwealth, or the District of Columbia.”
Id. § 500(a)(2).

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duly admitted members of a state bar.”20 The statute does not, however, define “good standing.”
Nor does it either “authorize or limit the discipline, including disbarment, of individuals who
appear in a representative capacity before an agency.”21
By permitting lawyers to practice before an agency so long as they are licensed in some
state, the APA provides an important exception to restrictions on multijurisdictional practice,
both under unauthorized practice of law rules and state ethics rules, that would otherwise restrict
lawyer practice outside jurisdictions in which they are licensed. Lawyers who seek to practice in
courts outside jurisdictions where they are licensed must generally be admitted pro hac vice for a
particular proceeding, which includes associating with local counsel. The APA provision makes
such a process unnecessary for lawyers practicing before federal agencies.22
Given the APA rule, one might expect the admission or qualification requirements for a
lawyer representative to be straightforward and uniform, and to some extent they are.
Nevertheless, there are some differences among the agencies in the language they use for their
rules governing lawyer qualification, generally based on the language of the agencies’ enabling
statutes. At the permissive end of the spectrum, several agencies allow any “attorney” to
represent a party in an agency proceeding, without further elaboration. The sampled agencies
with this type of rule are the USDA,23 the NLRB,24 and FERC.25
Four of the sampled agencies essentially track the language of the APA provision, though
they differ slightly in the way they articulate what counts as a United States jurisdiction or “good
standing,” and whether the admission requirement is mandatory or may be waived by an
Administrative Law Judge (ALJ). DHS tracks the APA definition of permissible jurisdictions,
20

Polydoroff v. ICC, 773 F.2d 372, 374 (D.C. Cir. 1985); Levine v. Saul, 2020 WL 5258690 *6 (D.R.I.
Sept. 3, 2020).
21
5 U.S.C. § 500(d)(2); Polydoroff, 773 F.2d at 374 (“There can be little doubt that the Commission, like
any other institution in which lawyers or other professionals participate, has the authority to police the behavior or
practitioners appearing before it.”).
22
Rule 5.5(d)(2) of the ABA Model Rules of Professional Conduct states: “A lawyer admitted in another
United States jurisdiction … and not disbarred or suspended from practice in any jurisdiction or the equivalent
thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction
that … are services that the lawyer is authorized by federal … law or rule to provide in this jurisdiction.” Comment
[18] to ABA Model Rule 5.5 states that an authorization by “executive regulation” is included within this
permission. For state ethics opinions interpreting this rule, see Alaska Eth. Op. 2010-1 (finding that a lawyer who
practices only immigration law but is not licensed in Alaska may maintain an office in Alaska under Rule 5.5(d)(2));
Ohio Op. 2016-9 (2016) (finding that an out-of-state lawyer admitted before a federal agency in Ohio may maintain
a physical office in Ohio but may not practice Ohio law); but see N.J. UPL Op. 27 (1993) (out-of-state attorneys
may represent clients before DHS and EOIR but may not open offices in New Jersey for purposes of that
representation); cf. Ct. Eth. Op. 98-1 (lawyer licensed in NY but not Connecticut can advertise the lawyer’s federal
immigration law practice in Connecticut).
23
7 C.F.R. § 1.26(a) (“In any hearing or other proceeding before the Department of Agriculture, the parties
may ... by counsel ....”); 7 C.F.R. § 1.141(c) (“The parties may appear ... by attorney of record in the proceeding.”).
24
29 C.F.R. § 102.177(a).
25
38 C.F.R. § 385.2101(a).

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and defines “good standing” as “not under any order suspending, enjoining, restraining,
disbarring, or otherwise restricting him or her in the practice of law.”26 Based on its governing
statute, the SEC adds as qualified lawyers those “admitted to practice before the Supreme Court
of the United States” and specifies that lawyers licensed in Puerto Rico and the Virgin Islands
may also practice before the agency.”27 Similarly, based on the language in its governing statute,
SSA permits to practice before that agency “any attorney in good standing who (1) Has the right
to practice law before a court of a State, Territory, District, or island possession of the United
States, or before the Supreme Court or a Federal court of the United States; (2) Is not disqualified
or suspended from acting as a representative in dealings with us; and (3) Is not prohibited by any
law from acting as a representative.”28 SSA adds, however, that it “may refuse to recognize the
person ... if the person does not meet the requirements in this section,”29 suggesting that SSA
may waive the requirements if it chooses. DOL also essentially tracks the APA requirement30
and, like the SSA, includes a waiver provision, stating that if an attorney is “not in good standing
in his or her jurisdiction,” that attorney “may not represent a party ... before the Office of
Administrative Law Judge, unless he or she obtains the judge’s approval.”
Uniquely among the surveyed agencies, the VA has an elaborate “accreditation” process
required of lawyers as well as non-attorneys.31 The VA’s accreditation rules go beyond the
requirements established in the APA but are expressly permitted by the VA’s governing statute.32
26

8 C.F.R. §§ 1.2, 292.1(a)(1).
17 C.F.R. §201.102(b); 15 U.S.C. § 78c(a)(16). Although the SEC’s Sarbanes-Oxley applies more
broadly to a person “licensed in any jurisdiction, domestic or foreign,” 15 C.F.R. § 205.2(c), unless the foreign
lawyer is a “non-appearing foreign attorney,” 15 C.F.R. § 205.2(j),” those rules are not limited to lawyers who
“appear and practice” in an SEC administrative proceeding, 15 C.F.R. § 205.2(a). Thus, the Sarbanes-Oxley rules do
not appear to grant permission to practice in SEC adjudicative proceedings to foreign lawyers. In addition, the SEC
recognizes that some other professionals, such as accountants and engineers, may “appear and practice” before the
SEC, and are subject to discipline, but not as representatives of parties. 15 C.F.R. §§ 201.102(e)(1)(iv) & (e)(2).
28
20 C.F.R. § 404.1705(a) (applicable to Federal Old-Age, Survivors and Disability Insurance cases); 20
C.F.R. 416.1505(a) (applicable to Supplemental Security Income for the Aged, Blind, and Disabled cases). SSA’s
governing statute, 42 U.S.C. § 406(1) states in part:
An attorney in good standard who is admitted to practice before the highest court of the State, Territory,
District or insular possession of his residence or before the Supreme Court of the United States, or the
inferior Federal courts, shall be entitled to represent claimants before the Commissioner of Social Security.
Notwithstanding the preceding sentences, the Commission, after due notice and opportunity for hearing,
(A) may refuse to recognize as a representative, and may disqualify a representative already recognized,
any attorney who has been disbarred or suspended from any court or bar to which he or she was previously
admitted to practice or who has been disqualified from participating in or appearing before any Federal
program or agency, and (B) may refuse to recognize, and may disqualify, as a non-attorney representative
any attorney who has been disbarred or suspended from any court or bar to which he or she was previously
admitted to practice.
29
20 C.F.R. § 404.1705(c); 20 C.F.R. § 416.1505(c) (emphasis added).
30
29 C.F.R. § 18.22(b)(1).
31
38 C.F.R. § 14.629(b).
32
38 U.S.C. § 5904(a)(2) (“The Secretary shall prescribe in regulations (consistent with the Model Rules of
Professional Conduct of the American Bar Association) qualifications and standards of conduct for individuals
recognized under this section, including a requirement that, as a condition of being so recognized, and individuals
27

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Most of the VA’s accreditation requirements apply to both attorneys and non-attorney
representatives and are discussed below. The sole requirement applicable only to lawyers is that
they must submit to the Office of General Counsel a “self-certification of admission information
concerning practice before any other court, bar, or State or Federal agency, and a determination
of character and fitness.”33 The provision adds: “The General Counsel will presume an attorney’s
character and fitness to practice before VA based on State bar membership in good standing
unless the General Counsel receives credible information to the contrary.”34
Finally, the one agency interviewed that does not have professional conduct rules, the
Department of State, does provide for hearings in cases involving certain passport denials and
revocation. The rule setting forth the procedure for that kind of hearing states that if a lawyer
appears as a representative at a hearing the lawyer “must be admitted to practice in any state of
the United States, the District of Columbia, or any territory or possession of the United States, or
be admitted to practice before the courts of the country in which the hearing is to be held.”35 The
rule does not provide for non-attorney representation.36
B. Non-Attorney Representatives
The APA does not “grant or deny to an individual who is not qualified as provided by ...
this section the right to appear for or represent a person before an agency or in an agency
proceeding.”37 Thus, the APA does not prevent agencies from permitting non-attorney
representatives and sets no requirements for such representatives. As a result, the sampled
agencies’ approaches to non-attorney representation are more varied than their approaches to
lawyer representation. The NLRB and USDA are again at the permissive end of the spectrum.
The NLRB apparently permits anyone to act as a representative, or at least not does not identify
any restrictions.38 USDA has two different rules on who is eligible to practice, one of which
expressly allows non-attorney representatives, again apparently without restriction.39 An
must – (A) show that such individual is of good moral character and in good repute, is qualified to render claimants
valuable service, and is otherwise competent to assist claimants in presenting claims; (B) have such level of
experience or specialized training as the Secretary shall specify; and (C) certify to the Secretary that the individual
has satisfied any qualifications and standards prescribed by the Secretary under this section.”).
33
38 C.F.R. § 14.629(b)(1)(ii).
34
Id. The rule also includes a requirement for lawyers that after accreditation, the lawyer must submit a
designated form, 38 C.F.R. § 14.629(c)(1), and states that “an attorney associated or affiliated with the claimant’s
attorney of record or employed by the same legal services office as the attorney of record may assist in the
representation of the claimant,” 28 C.F.R. § 14.629(c)(2).
35
22 C.F.R. § 51.71(c).
36
22 C.F.R. § 51.71(b) (“The person requesting the hearing must appear in person or with or through his or
her attorney.”).
37
5 U.S.C. § 500(d)(1). The individuals qualified by “this section” are lawyers, who are permitted by 5
U.S.C. § 500(b), and accountants representing a person before the IRS, who are permitted by 5 U.S.C. § 500(c).
38
29 C.F.R. § 102.177(a).
39
7 C.F.R. § 1.26(a) (“In any hearing or other proceeding before the Department of Agriculture, the parties
may appear in person or by counsel or other representative.”); 7 C.F.R. § 1.141(c) (“The parties may appear in

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interviewee from USDA stated that although most cases heard under that rule do have lawyer
representatives, occasionally family members will represent claimants. The interviewee also
stated that whether to allow a non-attorney representative is considered within the discretion of
the ALJ, even though the rule does not articulate that limitation.
Two other agencies, SSA and DOL, articulate relatively broad standards of competence
and character, but neither adopts limitations on the type of person who may serve as a
representative nor imposes any specific requirements that the non-attorney representative must
meet. SSA states that a non-attorney representative must be “capable of giving valuable help to
[a claimant] in connection with [a] claim”; “not disqualified or suspended from acting as a
representative in dealings with us”; “not prohibited by any law from acting as a representatives”;
and “generally known to have a good character and reputation.”40 DOL’s rule states that for a
non-attorney representative, the ALJ “may require that the representative establish that he or she
is subject to the laws of the United States and possesses communication skills, knowledge,
character, thoroughness and preparation reasonably necessary to render appropriate assistance.”41
Three other agencies in the sample limit the types of people who may serve as nonattorney representatives. The SEC42 and FERC43 limit representation by non-attorneys to agents
who are permitted to represent various types of entities. DHS has a more detailed set of
restrictions. It allows representation by five categories of non-attorneys. The first category is a
law student or recent law graduate who has not yet been admitted to the bar, subject to certain
requirements.44 The second category is a “reputable individual,” who must generally have a preexisting relationship with the claimant, does not receive any payment, and appears only for a
single case.45 The third category is an “accredited representative,” who is an agent of a non-profit
religious, charitable, or social service organization in the United States that has been accredited
by DHS.46 The last two categories recognize that many parties in DHS proceedings are not
person or by attorney of record in the proceeding.”).
40
20 C.F.R. §§ 404.1705(b); 416.1505(b). Subsection (4) of those rules defines “lacking good character and
reputation” as including, but not limited to “persons who have a final conviction of a felony ... or any crime
involving moral turpitude, dishonesty, false statement, misrepresentations, deceit, or theft.”
41
29 C.F.R. § 18.22(b)(2). The articulated competence standard is similar to that in ABA Model Rule 1.1.
The rule adds that the ALJ “may inquire as to the qualification or ability of a non-attorney representative to render
assistance at any time.”
42
15 C.F.R. § 201.102(b) (stating that “a member of a partnership may represent the partnership; a bona
fide officer of a corporation, trust or association may represent the corporation, trust or association; and an officer or
employee of a state commission or of a department or political subdivision of a state may represent the state
commission or the department or political subdivision of the state”).
43
18 C.F.R. § 385.2101(a) (adding to the SEC’s formulation that a member of an “organized group” can
represent the group and that an officer or employee of an “other governmental authority” can represent that
governmental authority).
44
8 C.F.R. § 292.1(a)(2).
45
8 C.F.R. § 292.1(a)(3).
46
8 C.F.R. §§ 292.1(a)(4), 292.2. EOIR publishes a list of recognized organizations and accredited
representatives at www.usdoj.gov/eoir/statspub/raroster.htm.

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American citizens. As a result, DHS permits representation by “accredited officials” of a foreign
government to which an alien party owes allegiance as well as attorneys licensed outside the
U.S.47 An interviewee from DHS noted that the limited permission of non-attorney
representatives has caused friction with some states with more permissive qualifications for some
categories of non-attorneys. For example, Washington permits legal practice by “limited licensed
technicians,” 48 and California, permits practice by some law school graduates who have not
earned a passing score on the bar exam but are working under the supervision of a licensed
lawyer.49
Finally, as mentioned above, the VA has an accreditation process that applies to both
attorney and non-attorney representatives.50 As for the non-attorney representatives, the VA
allows anyone to be an “agent” representative. To become accredited, however, an agent must
file a “self-certification of admission information concerning practice before any other court, bar,
or State or Federal agency, an affirmative determination of character and fitness by the VA, and
a written examination.”51 Non-attorney agents do not get the presumption of good character that
attorneys get. Instead, they must affirmatively demonstrate good character and reputation as well
as competence.52 But both attorneys and agents must submit the same information to the VA
relative to character and reputation53 and the same types of evidence showing a lack of good
character and reputation applies to both groups.54 In addition, both types of representative must
achieve a passing score on a written exam administered by the VA.55 Uniquely among the
agencies in the sample (and to my knowledge, all agencies), the VA requires both attorneys and
agents to satisfy a continuing legal education (CLE) requirement of three hours during the year
following accreditation,56 and three hours of CLE within three years of accreditation and every

47

8 C.F.R. §§ 292.1(a)(5), (a)(6).
See Wash. R. Admission to Practice 28 (Limited Practice Rule for Limited License Legal Technicians).
49
See Cal. Rules of Ct., R. 9.49.1 (Provisional Licensure with Pathway to Full Licensure for Certain
Individuals).
50
The most comparable agency in this respect is USPTO, which also has an extensive process, including a
patent registration examination, for anyone, including a lawyer, seeking to become a registered patent practitioner.
See Jon J. Lee, Double Standards: An Empirical Study of Patent and Trademark Discipline, 61 B.C. L. Rev. 1613,
1631-32 (2020) (describing the process for admission to practice in patent matters). On the trademark side, however,
the USPTO requires attorneys only to be licensed and in good standing, and the agency generally does not permit
non-attorney practitioners. Id. at 1632-33.
51
38 C.F.R. § 14.629(b)(1)(i).
52
38 C.F.R. § 14.629(b)(2).
53
38 C.F.R. § 14.629(b)(2).
54
38 C.F.R. § 14.629(b)(3) (“Evidence showing lack of good character and reputation includes, but is not
limited to, one or more of the following: Conviction of a felony, conviction of a misdemeanor involving fraud,
bribery, deceit, theft, or misappropriation; suspension or disbarment from a court, bar, or Federal or State agency on
ethical grounds; resignation from admission to a court, bar, or Federal or State agency while under investigation to
avoid sanction.”).
55
38 C.F.R. § 14.629(b)(6).
56
38 C.F.R. § 14.629(b)(1)(iii).
48

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two years after that.57 Finally, the VA has two special rules for certain non-attorney
representatives. The first enables certain service organizations to become “recognized” and
designate members or employees of that organization to be accredited representatives of that
organization if certain requirements are satisfied.58 The second permits some non-attorneys to
serve as a representative for a single claim without going through the full accreditation process if
the representative does not take compensation for the services provided.59
Agency permission of non-attorney representation raises questions that go beyond the
scope of this study. A threshold question is whether more agencies should allow nonlawyer
representatives or loosen the qualifications for such representatives.60 Another question is how
often claimants use attorney representatives compared to non-attorney representatives, or no
representation. SSA has a data base on this question from 1979-2015.61 The percentage of cases
in which a claimant was represented by an attorney ranged from a low of 43% in 1979 to a high
of 81% in 2006 and 2007, with an average of 65% and an upward trend. The percentage of cases
in which a claimant was represented by a non-attorney ranged from a low of 9% in 2006, 2007,
and 2008 to a high of 21% in 1989, with an average of 15% and a downward trend. Another
question that would be useful to study is how the quality of representation provided by nonattorney representative compares to that of attorney representatives.
IV. STRUCTURE OF THE AGENCY PROFESSIONAL CONDUCT RULES
Nearly fifty agencies have published professional conduct rules in the Code of Federal
Regulations (CFR), and these rules appear in twenty-six of CFR’s fifty titles. Agency rules
governing representative conduct vary widely in how they are structured within the CFR. This
section considers several aspects of rule structure as distinct from content (which is considered in
the next section): (1) how the rules are labeled; (2) the number and location of the rules within
the CFR; (3) whether the rules are coordinated with the rules of other agencies; and (4) whether
the rules incorporate other ethics rules, such as the ABA Model Rules of Professional Conduct,
state disciplinary rules, or federal court rules.

57

38 C.F.R. § 14.629(b)(1)(iv).
38 C.F.R. § 14.629(a).
59
38 C.F.R. § 14.630.
60
See, e.g., Administrative Conference of the United States, Recommendation 86-1, Nonlawyer Assistance
and Representation (June 19, 1986) (recommending that “agencies that deal with a significant number of unassisted
individuals who have personal, family, or personal business claims or disputes before the agency, should review
their regulations regarding assistance and representation,” with the aim of “authorizing increased assistance by
nonlawyers, and … maximizing the potential for free choice of representative to the fullest extent allowed by law”);
Zona Fairbanks Hostetler, Nonlawyer assistance to Individuals in Federal Mass Justice Agencies: The Need for
Improved Guidelines, 2 Administrative L.J. 85 (1988).
61
The data base is available at www.ssa.gov/open/data/representation-at-ssa-hearings.html.
58

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A. Labeling of the Rules
Agency label their rules governing representative conduct in adjudicative matters in a
variety of ways. In contrast to the ABA, which refers to its ethics rules as “Rules of Professional
Conduct,” only one agency, the USPTO, refers to its ethics rules precisely that way.62 Among the
agencies sampled for this study, several refer to at least some of their rules using a slight variant
of the ABA terminology, such as “standards of professional conduct,” “professional conduct,”
“rules of conduct,” or “standards of conduct.” These agencies are SEC (Sarbanes-Oxley rules),63
USDA,64 DHS,65 and the VA.66 SSA uses the amalgam, “Rules of Conduct and Standards of
Responsibility,”67 while the NLRB uniquely refers to its disciplinary rule as “Misconduct by
Attorneys or Party Representatives.”68 Other agencies instead include their representative rules
as part of their general “rules of practice and procedure” or simply “rules of practice” or “rules of
procedure.” In the sample, the agencies following this approach for at least some of their
professional conduct rules are DOL69 and USDA.70 FERC puts its professional conduct rules
62

37 C.F.R. §§ 11.101-.901 (USPTO) (Rules of Professional Conduct). Another agency, the Surface
Transportation Board, refers to its professional conduct rules as “Canons of Ethics,” reflecting the name and content
of the original (from 1908) set of ABA ethics rules, the Canons of Professional Ethics. The ABA substantially
revised its ethics rules in 1969 as the Model Code of Professional Responsibility (a term not currently used by any
agency) and adopted the Model Rules of Professional Conduct in 1983.
63
17 C.F.R. Pt. 205 (Standards of Professional Conduct for Attorneys Appearing and Practicing Before the
Commission in the Representation of an Issuer); cf. 17 C.F.R. §201.102(e)(Appearance and Practice Before the
Commission).
64
7 C.F.R. § 97.157 (USDA)(Commodity Laboratory Testing Programs, Plant Variety and Protection,
Attorneys and Agents, Professional Conduct); cf. 7 C.F.R. Subpt. A, Pt. 1, Subpt. L (Rules of Practice Governing
Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes); id. Pt. 110 (Rules of
Practice).
65
8 C.F.R. § 292.3 (Professional Conduct for Practitioners – Rules and Procedures). See also; 8 C.F.R.
1003.102-.103 & 1292.3 (EOIR)(Professional Conduct for Practitioners – Rules and Procedures); 32 C.F.R. 776.18.71 (JAG)(Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge
Advocate General); cf. 14 C.F.R. Pt. 300 (DOT)(Rules of Conduct in DOT Proceedings Under This Chapter).
66
38 C.F.R. § 14.632 (Standards of Conduct for Persons Providing Representation Before the Department).
See also 12 C.F.R. § 1209.73-.74 (FHFA)(Standards of Conduct); 49 C.F.R. Pt. 511 (NHTSA)(Adjudicative
Procedures: Appearances; Standards of Conduct).
67
20 C.F.R. § 404.1740.
68
29 C.F.R. § 102.177.
69
18 C.F.R. Pt. 18 (Rules of Practice and Procedure for Administrative Hearings Before Administrative
Law Judges). See also 10 C.F.R. Ch. 1, Pt. 2, Subpt. C (NRC)(Agency Rules of Practice and Procedure, Rules of
General Applicability); 12 C.F.R. Pt. 19 (OCC), Pt. 263 (FRB), Pt. 308 (FDIC), Pt. 747 (NCUA) (all titled Uniform
Rules of Practice and Procedure); 28 C.F.R. Pt. 68 (DOJ)(Rules of Practice and Procedure for Administrative
Hearings Before Administrative Law Judges in Cases Involving Allocations of Unlawful Employment of Aliens,
Unfair Immigration-Related Practices, and Document Fraud); 47 C.F.R. Ch. I, Subch. A, Pt. 1, Subpt. A
(FCC)(General Rules of Practice and Procedure; Parties, Practitioners, and Witnesses; Censure, Suspension, or
Disbarment of Attorneys); cf. 4 C.F.R. Pt. 22 (GAO)(Rules of Procedure of the Government Accountability Office
Contract Appeals Board); 13 C.F.R. Pt. 134, Subpt. B (SBA)(Rules of Procedure Governing Cases Before the Office
of Hearings and Appeals, Rules of Practice); 29 C.F.R. Pt. 2200 (OSHRC)(Rules of Procedure, Parties and
Representatives, Appearances and Withdrawals).

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under the general heading of rules of procedure,71 but then uses “appearance and practice” to
refer specifically to its professional conduct rules under that heading.72 The SEC also uses the
term “appearance and practice” to refer to its general professional conduct rule.73
The more common practice by agencies to refer to their rules as procedural or practice
rules rather than rules of conduct may reflect the fact that many (though not all) of these
professional conduct rules apply only to representation in adjudicatory proceedings, whereas the
ABA Model Rules of Professional Conduct, on which all states base their lawyer disciplinary
rules, apply to all lawyers, including transactional lawyers who do not practice before a tribunal.
In contrast to the general practice by agencies of including rules of conduct within rules of
procedure and practice, state courts, which often have the responsibility for adopting that state’s
ethics rules for lawyers, as well as federal courts, which often incorporate the ethics rules of the
state in which they are located, have acquiesced to some extent in separating “ethics rules”
governing lawyer conduct from “rules of procedure.” For example, the Federal Rules of Civil
Procedure do not include a rule on conflicts of interest and disqualification based on those
conflicts; instead, courts generally apply the state ethics rules to resolve disqualification motions
alleging a conflict of interest. On the other hand, some procedural and ethics rules overlap; for
example, Rule 11 of the Federal Rules of Civil Procedure and Model Rule 3.1 both address
frivolous claims, albeit with somewhat different requirements.
B. Number and Location of the Rules
A second structural question is whether agencies choose to describe their professional
70

7 C.F.R. Subt. A, Pt. 1, Subpt. L (Rules of Practice Governing Formal Adjudicatory Proceedings
Instituted by the Secretary Under Various Statutes) and Pt. 110 (Rules of Practice). USDA consolidated its
procedure and practice rules in 1977. See also 12 C.F.R. Pt. 1081, Subpt. A (BCFP)(Rules of Practice for
Adjudication Proceedings, General Rules); 13 C.F.R. Pt. 134, Subpt. B (SBA)(Rules of Procedure Governing Cases
Before the Office of Hearings and Appeals, Rules of Practice); 16 C.F.R. Ch. I, Subch. A, Pt. 4 (FTC)(Organization,
Procedures and Rules of Practice, Miscellaneous Rules: Appearances, Ex Parte Communications); 16 C.F.R. Pt.
1025 (CPSC)(Rules of Practice for Appellate Proceedings; Appearances, Standards of Conduct); 17 C.F.R. Pt. 10
(CFTC)(Rules of Practice, General Provisions); 39 C.F.R. Pt. 955 (USPS)(Rules of Practice Before the Postal
Service Board of Contract Appeals); 45 C.F.R. Pt. 500 (FCSC)(Rules of Practice, Appearance and Practice), 49
C.F.R. Pt. 821, Subpt. J (Rules of Practice is Air Safety Proceedings, Ex Parte Communications)
71
FERC revised its rules in 1982 to put all its practice and procedure rules in one Part.
72
See 18 C.F.R. Part 385 (FERC) (Procedural Rules, Rules of Practice and Procedure); id. Pt. 385, Subpt. U
(FERC)(Appearance and Practice Before the Commission). Other agencies taking a similar approach include
Federal Housing Finance Agency, see 12 C.F.R. Pt. 1209 (Rules of Practice and Procedure); Consumer Product
Safety Commission, see 16 C.F.R. Pt. 1025 (Rules of Practice for Appellate Proceedings; Appearances, Standards of
Conduct); Occupational Safety Health Review Commission, see 29 C.F.R. Pt. 2200 (Rules of Procedure, Parties and
Representatives, Appearances and Withdrawals); and National Highway Traffic Safety Administration, see 49
C.F.R. Pt. 511 (Adjudicative Procedures: Appearances; Standards of Conduct) .
73
17 C.F.R. §201.102(e) (Appearance and Practice Before the Commission). See also 31 C.F.R. Pt. 501,
Subpt. D (OFAC) (Appearance and Practice); 45 C.F.R. Pt. 500 (FCSC) (Rules of Practice, Appearance and
Practice). Yet another variant is “duties and restrictions related to practice,” a label used by the Bureau of Alcohol,
Tobacco & Firearms, 31 C.F.R. §§ 8.31-8.42 & 8.52, and the IRS, 31 C.F.R. §§ 10.22-10.37.

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conduct rules as a single rule or a series of rules, and, if the latter, whether the agencies locate
their professional conduct rules in a single location or scatter them in different locations. A few
agencies have a single, broad rule. In the interviewed sample, the NLRB is the only agency that
takes this approach.74 Other agencies opt for a single rule with multiple sub-parts or, similarly, a
set of multiple rules grouped together that cover a variety of topics. The best example of an
agency taking this approach is USPTO, whose rules most closely track the ABA’s Model Rules
of Professional Conduct. Agencies in the interviewed sample that have adopted comprehensive
and detailed rules and group them together are DHS,75 SSA,76 and the VA.77
Apart from NLRB and DHS, however, all the agencies in the sample put their
professional conduct rules in more than location. The agencies do this for a variety of reasons,
and some agencies do it for more than one reason. One reason for putting different conduct rules
in different locations is that the rules may apply to different types of claims or adjudications. For
example, SSA has two sets of detailed rules, each contained in a single section with multiple
subsections, divided into Purpose and Scope, Affirmative Duties, and Prohibited Actions.78 One
set of rules governs proceedings concerning Federal Old-Age Survivors and Disability Insurance
(Part 404)79 and the other set governs proceedings Supplemental Security Income for the Aged,
Blind, and Disabled (Part 416).80 The rules in these two locations are, however, identical. No
other agency puts identical rules in separate locations.
Other agencies that have different rules for different types of claims or adjudications are
the VA and USDA. The VA has detailed professional conduct rule governing claims for
veterans’ benefits81 and a more broadly framed group of professional conduct rules for claims of
discrimination against the VA.82 USDA has a particularly variegated structure for its
representative conduct rules, based not only on the type of proceeding but on who enforces the
74

29 C.F.R. § 102.177. Another example of an agency adopting a single, broad professional conduct rule is
the Drug Enforcement Administration, see 31 C.F.R. § 1316.51(b).
75
DHS is unique among the agencies because although its professional conduct rules are all in one location,
that location is under the rules of EOIR. See 8 C.F.R. § 292.3(b) (stating that the grounds for disciplinary sanctions
are those stated in 8 C.F.R. § 1003.102, which is in the EOIR rules). I discuss this unique coordination between
agencies below.
76
See 20 C.F.R. 404.1740; 20 C.F.R. 416.1540.
77
See also Department of Transportation, see 29 C.F.R. Part 300 (Rules of Conduct in DOT Proceedings
Under This Chapter); Bureau of Alcohol, Tobacco, Firearms and Explosives, see 31 C.F.R. Part 8 Subpart D (Duties
and Restrictions Relating to Practice); Internal Revenue Service, see 31 C.F.R. Part 10 (Duties and Restrictions
Relating to Practice Before the Internal Revenue Service); and Surface Transportation Board, see 49 C.F.R. Part
1103 (Canons of Ethics).
78
SSA is the only agency that divides its professional conduct rules in this way.
79
20 C.F.R. § 404.1740.
80
20 C.F.R. § 416.1540. By contrast, the USPTO has one set of professional conduct rules in one location
even though the patent and trademark functions within the agency are separate.
81
38 C.F.R. § 14.632 (Standards of Conduct for Persons Providing Representation Before the Department).
82
38 C.F.R. §§ 18b.15 (Exclusion from Hearing for Misconduct), 18b.90-92 (Judicial Standards of
Practice).

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rule (a topic further considered below). The agency locates its various rules in three different
sub-parts of its “Administrative Regulations.” First, USDA has a general rule, enforced by the
Secretary, that applies, under Subpart B (Departmental Proceedings) in “any hearing or other
proceeding before the Department of Agriculture,”83 Second, USDA has a different general rule,
enforced by a Judge, that is part of Subpart H, Rules of Practice Governing Formal Adjudicatory
Proceedings Instituted by the Secretary Under Various Statutes.84 Third, yet another sub-part,
Subpart L, Procedures Related to Administrative Hearings Under the Program Fraud Civil
Remedies Act of 1986 has a different rule applicable to misconduct by a “party or
representative.”85 Finally, under the “Regulations of the Department of Agriculture,” there are
two other general rules, enforced by the Presiding Officer, under the Commodity Laboratory
Testing Programs of the Agricultural Marketing Service.86
A second reason an agency might locate their professional conduct rules in different
locations is that the rules apply not to proceedings under different statutes but that the rules apply
at different stages of a proceeding. Among the sampled agencies, the VA has a professional
conduct rule in addition to those mentioned above that applies only to appellate practice before
the Board of Veterans’ Appeals.87
A third reason an agency may put different professional conduct rules in different
locations is that the rules may apply to different people. For example, the DOL has one set of
professional conduct rules applicable to representatives88 and a second set of rules applicable not
only to representatives but also to parties,89 though it locates both sets of rules under the heading
of “Rules of Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges.” Similarly, USDA has one rule applicable to both representatives
and parties,90 while it limits others to representatives. Another agency applying different conduct
rules to different people is the SEC. One of its conduct rules applies to a witness as well as the
witness’s counsel.91 But the SEC also has several other sets of professional conduct rules that
apply to different categories of representatives. The SEC’s general rule on Appearance and
Practice Before the Commission applies to specified non-attorney representatives as well as
attorneys,92 whereas the Sarbanes-Oxley rules are limited to attorneys but apply to some foreign
83

7 C.F.R. § 1.26(b) (Representation before the Department of Agriculture).
7 C.F.R. §§ 1.141(c) & (d)(1) (Procedure for Hearing).
85
7 C.F.R. § 1.328 (Sanctions).
86
7 C.F.R. §§ 97.157 (Professional Conduct), 110.8(h)(3) & (4) (Administrative Procedures).
87
38 C.F.R. § 20.6 (Withdrawal of Services by a Representative).
88
29 C.F.R. § 18.22(d) & (e) (Representatives); id. §18.23(a)(1)(iii) (Disqualification of Representatives).
Section 18.22 addresses “Duties,” “Prohibited Actions,” and “Withdrawal of Appearance.” Section 18.23 adds some
further prohibitions. These sections do not cross-reference the other professional conduct rule provisions.
89
29 C.F.R. § 18.35(b) (Representations to the Judge); id. § 18.87(b) (Standards of Conduct).
90
7 C.F.R. §1.328(a) (stating that an ALJ “may sanction a person, including any party or representative,”
for various types of misconduct).
91
17 C.F.R. § 203.7(e) (Rights of Witnesses).
92
17 C.F.R. § 201.102(b) (describing who may serve as a representative); id. § 201.102(e) (setting forth
84

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attorneys as well as U.S.-licensed attorneys.93
Finally, agencies may place rules covering different types of representative conduct in
different locations. For example, FERC has a conduct rule governing investigations in one
location,94 a rule governing discovery abuse in another location,95 and a rule addressing
disruptive conduct and other unethical behavior in a proceeding in a third location96 (the latter
two rules are in different sub-parts of FERC’s Rules of Practice and Procedure).97 The SEC also
has a conduct rule applicable to investigations.98 In addition, the SEC has a general rule
governing Appearance and Practice contained in the SEC’s Rules of Practice (Part 201),99 and, in
a different part (Part 205) a distinct set of rules implementing the requirements of the SarbanesOxley statute.100 These rules focus on an attorney’s duties in responding to client wrongdoing
and are mostly directed at non-adjudicatory practice of lawyers, but those rules do specifically
include lawyer representing an issuer in an “administrative proceeding.”101
C. Coordination with Other Agencies
Most agencies do not coordinate their representative conduct rules with the rules of other
agencies. Even when different agencies appear in the same title of the Code of Federal
Regulation, and therefore have at least some general subject matter overlap, their rules of these
agencies generally differ in some way, such as topics covered, substance, or style. For example,
the SEC’s rules are in Title 17 of the CFR, which also includes the Commodity Futures Trading
Commission (CFTC). Yet the representative conduct rules of the two agencies are significantly
different.102 Similarly, the NLRB rule103 and the DOL rules104 are both located in Title 29, which
standards of conduct for representatives who appear and practice before the SEC). This rule also references another
professional conduct rule limiting the appearances of former SEC employees. 17 C.F.R. § 201.102(c); id. § 200.7358 (Practice by former members and employees of the Commission). The referenced rule is located in a set of SEC
rules applicable to SEC employees (Part 200).
93
17 C.F.R. Part 205 (Standard of Professional Conduct for Attorneys Appearing and Practicing Before the
Commission in the Representation of an Issuer); id. § 205.2(a) (defining “appearing and practicing” and excluding a
“non-appearing foreign attorney); id. § 205.2(j) (defining “non-appearing foreign attorney”).
94
18 C.F.R. § 1b.16.
95
18 C.F.R. § 385.411.
96
18 C.F.R. § 385.2102.
97
The FERC Rules of Practice and Procedure are in Part 385 of Title 18 of the CFR. Subpart D, which
includes § 385.411 is labeled Discovery Procedures for Matters Set for Hearing Under Subpart E. Subpart U, which
includes 385.2102, is labeled Appearance and Practice Before the Commission.
98
17 C.F.R. § 203.7(e) (Rights of Witnesses).
99
17 C.F.R. § 201.102(e) (Appearance and Practice before the Commission) .
100
17 C.F.R. Part 205 (Standard of Professional Conduct for Attorneys Appearing and Practicing Before
the Commission in the Representation of an Issuer).
101
17 C.F.R. 205.2(a)(1)(ii).
102
The CFTC rules are located in 17 C.F.R. § 10.11 (Appearance in Adjudicatory Proceedings) & Part 14
(Rules Relating to suspension or Disbarment from Appearance and Practice).
103
29 C.F.R. § 203.177 (Misconduct by Attorneys and Party Representatives before the Agency).

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also includes the Occupational Safety and Health Review Commission (OSHRC) rules,105 but the
professional conduct rules of these three agencies are markedly different. The same pattern of
distinct rules for agencies within the same CFR title occurs in numerous other titles.106
Some, but not all, of these differences are likely the result of the different functions the
agencies serve (such as primarily investigative, primarily adjudicative, or a combination). For
example, the reason given by an NLRB interviewee for that agency’s distinct rule is that the
NLRB is an independent agency, not part of the DOL, and so the NLRB does not coordinate its
activities at all with the DOL. For its part, DOL identifies more closely with agencies such as
SSA and DHS, given its responsibility for overseeing benefits under various employment
statutes and employment visas related to immigration.107
On the other hand, one agency in the interviewed sample is an exception to this general
pattern. DHS, whose rules are in Title 7, incorporates the professional conduct rules of the
Executive Office of Immigration Review (EOIR), also located in Title 8.108 In addition, as
discussed below, DHS and EOIR closely coordinate enforcement of their professional conduct
rules. Another significant example of coordination involves the agencies regulating the financial
sector, whose rules are in Title 12. Some (not all) of these agencies have adopted “Uniform
Rules of Practice and Procedure.”109 Unfortunately, I was not able to include one of those
agencies in my interview sample.

104

19 C.F.R. §§ 18.22(d) & (e) (Representatives), 18.23(a) (Disqualification of Representatives), 18.35
(Representations to the Judge), 18.87 (Standards of Conduct).
105
29 C.F.R. §§ 2200.23(b) (Withdrawal of Counsel); 2200.104 (Standards of Conduct); 2200.105(b) (Ex
Parte Communication).
106
See Title 10 (Nuclear Regulatory Commission, 10 C.F.R. § 2.314; Department of Energy, 10 C.F.R. §
1003.3(b); Defense Nuclear Facilities Safety Board, 10 C.F.R. §§ 1708.110, 1708.112); Title 16 (Federal Trade
Commission, 16 C.F.R. § 4.1(b) & (e), and Consumer Product Safety Commission, 16 C.F.R. § 1025.66); Title 19
(US International Trade Commission, 19 C.F.R. §§ 210.2, 210.4 and International Trade Administration, 19 C.F.R.
§ 351.303(g)); Title 31 (Bureau of Alcohol, Tobacco, Firearms and Explosives, 31 C.F.R. §§ 8.31-8.42, 8.52;
Internal Revenue Service, 31 C.F.R. §§ 10.22-10.37, and Office of Foreign Asset Control, 31 C.F.R. § 501.704(d));
Title 39 (US Postal Service, 39 C.F.R. § 955.34, and Postal Regulatory Commission, 39 C.F.R. § 3010.143(d)); and
Title 40 Chemical Safety and Hazard Investigation Board, 40 C.F.R. § 1610.1 and Environmental Protection
Agency, 40 C.F.R. §§ 27.3, 27.15, 27.29).
107
In its 2015 revisions to 29 C.F.R. § 18.22, the DOL relied on the SSA professional conduct rules. 80
Fed. Reg. 28768, 28774 (May 19, 2015).
108
The EOIR rules are in 8 C.F.R. § 1003.102. The DHS rules incorporating the EOIR rules are C.F.R. §
292.3(a)(1)(“It will be in the public interest to impose disciplinary sanctions against a practitioner who is authorized
to practice before DHS when such person has engaged in criminal, unethical, or unprofessional conduct, or in
frivolous behavior, as set for in 8 C.F.R. 1003.102.”), 293.2(b)(“It is deemed to be in the public interest for the
adjudicating official or the Board to impose disciplinary sanctions as described in paragraph (a)(1) of this section
against any practitioner who falls within one or more of the categories enumerated in 8 C.F.R. 1003.102.”).
109
See 12 C.F.R. §§ 19.1-19.41 (Office of Comptroller of the Currency); 12 C.F.R. §§ 263.1-263.41
(Federal Reserve Board); 12 C.F.R. §§ 308.1-308.41 (Federal Deposit Insurance Corporation); 12 C.F.R. §§ 747.1747.41 (National Credit Union Administration).

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D. Incorporation of Other Ethics Rules
A final structural question is whether the agencies incorporate other (non-agency) ethics
rules and, if so, which rules they incorporate and whether those rules are in addition to or instead
of the agency’s own articulated rules. Federal agencies rules do not attempt to preempt discipline
by states or other jurisdictions under their own ethics rules.110 Incorporating other ethics rules
simply means that the agency can impose discipline on lawyers or other representatives who
engage in conduct before the agency that the agency finds violates those other rules, even if the
state disciplinary authority has not acted to discipline that conduct.111 If the state has disciplined
a lawyer, whether for other conduct or conduct before the agency, the agency may impose
reciprocal sanctions. Reciprocal discipline is considered below in section VI.E.
Slightly more than half of all agencies with professional conduct rules have some kind of
incorporation rule. In the interviewed sample, the only agencies that have professional conduct
rules but no incorporation rule are DHS112 and SSA.113 At the other end of the spectrum, the only
agency in the sample whose sole rule of professional conduct is an incorporation rule is the
NLRB.114 Thus, most agencies in the sample both include an incorporation rule and supplement
that rule at least to some extent with their own rules.
As is the case with other structural issues, and perhaps surprisingly, the agencies with an
incorporation rule vary significantly in which rules they incorporate. One approach is to adopt a
specified set of rules and make those rules applicable to all representatives, which has the
advantage of uniformity across all representatives, including nonlawyer representatives, and
110

See Gadda v. Ashcroft, 388 F.3d 934, 939 (9th Cir. 2004) (holding that “federal law does not preempt the
Supreme Court of California’s authority to suspend or disbar attorneys admitted to practice in California state
courts”). The SEC’s Sarbanes-Oxley rules do attempt to pre-empt state discipline under ethical standards
inconsistent with those rules. 17 C.F.R. §§ 205.1 (“These standards … are not intended to limit the ability of any
jurisdiction to impose additional obligations on an attorney not inconsistent with the application of this part.”);
205.6(c) (“An attorney who complies in good faith with the provisions of this part shall not be subject to discipline
… under inconsistent standards imposed by any state or other United States jurisdiction where the attorney is
admitted or practices.”).
111
To my knowledge, agencies neither use, nor claim the authority to use, these incorporation rules to
discipline lawyers for conduct outside an agency adjudicative proceeding or otherwise not involving practice before
the agency. Although as discussed below, many agencies have reciprocal discipline rules, those rules apply only
when another jurisdiction has actually imposed discipline, not when an agency determines that another jurisdiction
could have imposed discipline for prior conduct not involving practice before the agency. Similarly, the agency rules
on admission and qualification of lawyers, discussed above, do not contemplate an agency conducting an
independent inquiry into a lawyer’s prior conduct not involving practice before the agency, unless that prior conduct
actually resulted in discipline.
112
DHS does incorporate the EOIR ethics rules, as discussed above, in 8 C.F.R. § 292.3(a)(1).
113
Other agencies with significant professional conduct rules that lack an incorporation rule include the IRS
and USPTO.
114
29 C.F.R. § 102.177(a). The only other agencies that have only an incorporation rule are the Drug
Enforcement Administration, 21 C.F.R. § 1316.51(b), and the Postal Regulatory Commission, 39 C.F.R. §
3010.143(d).

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reduces the burden on the ALJs within an agency by eliminating the need for them to become
familiar with more than one professional conduct rules. A version of this approach, not taken by
any of the interviewed agencies but used by some others, is to incorporate the ABA Model Rules
of Professional Conduct115 or, for agencies holding proceedings in the District of Columbia, the
District of Columbia Rules of Professional Conduct.116 An alternative version of this approach,
taken by one of the USDA conduct rules, is to incorporate the rules applicable in the U.S.
District Court for the District of Columbia,117 which essentially is equivalent to incorporating the
District of Columbia Rules of Professional Conduct.118
A second approach, applicable only to lawyer representatives, is to incorporate the ethics
rules of the jurisdiction or jurisdictions in which an attorney is licensed to practice. The VA119
and DOL120 take this approach, as do several other agencies.121 This approach has the advantage
of reducing the burden on attorneys, who need not familiarize themselves with an additional set
of ethics rules. But because these incorporation rules do not apply to nonlawyer representatives,
those representatives will potentially operate under different standards and without sufficient
guidance. In addition, this approach differs from that of the ABA Model Rules of Professional
Conduct, which generally subject lawyers involved in litigation to the disciplinary rules of the
jurisdiction in which the tribunal in which they are practicing is located, unless the tribunal’s
rules provide otherwise, even if those rules differ from the rules of the jurisdiction(s) in which
the lawyer is licensed.122

115

Two agencies that adopt this approach are Bureau of Alcohol, Tobacco, Firearms and Explosives, see 31
C.F.R. § 8.41(b)(2)(i) and Occupational Safety and Health Review Commission, see 29 C.F.R. § 2200.104(a). The
Department of Interior requires practitioners to “observe the Canons of Professional Ethics of the American Bar
Association” as well as the ethics rules of the Federal Bar Association. 43 C.F.R. § 1.6(a). It’s not clear whether the
Department of the Interior intends to incorporate the ABA’s current rules or the former Canons of Professional
Responsibility. Nor is it clear how the agency resolves any conflicts between the rules of the ABA and those of the
Federal Bar Association.
116
See 39 C.F.R. § 3010.143(d) (Postal Regulatory Commission).
117
7 C.F.R. § 1.26(b)(1) (also incorporating “any applicable standards of ethical conduct established by
statutes, executive orders and regulations”).
118
Rules of the United States District Court for the District of Columbia, LCvR 83.15(a) (making the D.C.
Rules of Professional Conduct applicable).
119
38 C.F.R. § 14.632(d). For an example of the VA discussing a state ethics rule, though ultimately
deciding that the rule was not violated, see Harvey v. Shulkin, 30 Vet. App. 10 (U.S Ct. App. Vet. Claims) (2018)
(discussing a potential violation of Rule 3.7).
120
29 C.F.R. § 18.22(c).
121
These agencies include the Bureau of Consumer Financial Protection, §12 C.F.R. 1081.107(c)(1); the
Federal Trade Commission, 16 C.F.R. § 4.1(e)(1)(i)(B); the US Postal Service, 39 C.F.R. § 955.34(a); and the
Federal Communications Commission, 47 C.F.R. § 1.24(a)(2). The Civilian Board of Contract Appeals of the
General Services Administration has an interesting variation that applies “the rules of professional conduct and
ethics of the jurisdictions in which the attorney is licensed to practice, to the extent that those rules are relevant to
conduct affecting the integrity of the Board, its process, or its proceedings.” 48 C.F.R. § 6101.35(a) (emphasis
added).
122
ABA Model Rule 8.5(b)(1).

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A final approach is to incorporate the ethics rules generally applicable in federal courts
without specifying a particular jurisdiction. This is the approach taken by USDA123 (USDA
appears to be the only agency that has adopted different incorporation rules for different
contexts) as well as by FERC.124 A variation of this approach is to incorporate general ethical
standards, again without specifying a particular jurisdiction or set of rules. This is the approach
taken by the NLRB125 and the SEC.126 This approach provides greater flexibility but raises the
possibility of choice of law problems when the rules of different jurisdictions conflict.
Nevertheless, an interviewee from SEC expressed the view that the approach of reinforcing and
complementing the state bar rules generally works well. Moreover, in practice, the SEC
apparently interprets its incorporation rule to mean that the agency will look to the ethics rules in
the jurisdiction in which the lawyer is licensed.127
The potential choice of law problem is not limited to disciplinary matters in the agencies
themselves. In jurisdictions that have adopted Rule 8.5(b)(1) of the ABA Model Rules of
Professional Conduct, if a lawyer is disciplined in a state disciplinary system for conduct before
the agency acting as a “tribunal” under Rule 1.0(m) of the ABA Model Rules, that state
disciplinary authority would have to determine how to follow the requirement of Rule 8.5(b)(1)
that it apply the “rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal
provide otherwise.”128 One possibility would be that the disciplinary authority would apply the
rules of the jurisdiction in which the agency hearing occurs, for example, the District of
Columbia, because the tribunal’s rule does not identify a specific alternative set of rules. That
would mean that a lawyer could be disciplined under different rules by an agency tribunal
applying the agency’s rules and by the state disciplinary authority, a result Rule 8.5(b)(1) seems
not to contemplate. Alternatively, the state disciplinary authority could conclude that even
though the agency has not adopted specific rules but merely a broad incorporation rule, the “rules
123

7 C.F.R. §§ 1.141(c), 97.157, 110(h)(3).
18 C.F.R. § 385.2101(c); See also 10 C.F.R. § 1708.112(a) (Defense Nuclear Facilities Safety Board);
49 C.F.R. 1103.11 (Surface Transportation Board).
125
29 C.F.R. § 102.177(a) (“Any attorney or other representative appearing or practicing before the Agency
must conform to the standards of ethical and professional conduct required of practitioners before the courts, and the
Agency will be guided by those standards in interpreting and applying provisions of this section.”).
126
17 C.F.R. § 201.102(e)(1)(ii)(permitting the SEC to sanction any person found “to have engaged in
unethical or improper professional conduct”). Congress in the Sarbanes-Oxley Act of 2002 incorporated this
language into the language of the statute, removing doubts about the agency’s authority to implement this rule. 15
U.S.C. § 78d-3(a)(2). See also 12 C.F.R. § 308.109(a)(1)(ii) (FDIC); 14 C.F.R. §§ 300.1, 300.6(a), 300.12(a)
(Department of Transportation); 17 C.F.R. § 14.8(c) (Commodity Futures Trading Commission); 28 C.F.R. §
68.33(c)(3)(iii) (Department of Justice); 45 C.F.R. § 500.4(a)(2) (Foreign Claims Settlement Commission).
127
The D.C. Circuit upheld this interpretation in Altman v. SEC, 666 F.3d 1322 (D.C. Cir. 2003)
(upholding SEC discipline of a lawyer for violating NY ethics rules prohibiting “conduct involving dishonesty,
fraud, deceit, or misrepresentation,” “conduct that is prejudicial to the administration of justice,” and “conduct that
adversely reflects on the lawyer’s fitness as a lawyer”).
128
Not all jurisdictions have adopted this rule or adopted in the form proposed by the ABA. For example,
New York’s version of Rule 8.5(b)(1) substitutes the word “court” for “tribunal,” and an ethics opinion from New
York finds that “court” for purposes of that rule does not include administrative agencies acting in an adjudicative
capacity. N.Y. Eth. Op. 968 (2013).
124

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of the tribunal provide otherwise” and the state authority would have to try to apply the “general”
ethics or court rules contemplated by the agency incorporation rule.
V. CONTENT OF THE AGENCY PROFESSIONAL CONDUCT RULES
In my prior article discussing professional conduct rules in federal agencies, I found that
the most common topics covered by those rules concerned agency adjudication129 and most of
the rules on these topics parallel, and are generally consistent with, the ABA Model Rules of
Professional Conduct “Advocate” rules.130 Of the adjudication-focused rules, the most common
topics (addressed by the rules of 27 agencies) are disruptive conduct131 and ex parte contact with
agency officials,132 followed by frivolous claims (21 agencies),133 obstruction of justice (19
agencies),134 compliance with agency rules (17 agencies),135 and delay.136 Among the sampled
agencies, as noted above, only NLRB has a single general rule of conduct with no specific

129

Cohen, supra, at 1978.
ABA Model Rules of Professional Conduct, Rules 3.1-3.9. Rules incorporating other ethics rules,
discussed in the previous section, are also in the group of most common rules. I have attached to this Report as an
appendix a spreadsheet listing all the professional conduct rules of the federal agencies that I could identify as well
as the corresponding rule in the ABA Model Rules of Professional Conduct. Even among the ABA’s “Advocate”
rules, almost no agencies, and none in the sample, include parallels to Rules 3.6 (Trial Publicity), 3.7 (Lawyer as
Witness), 3.8 (Special Responsibilities of a Prosecutor), or 3.9 (Advocate in Nonadjudicative Proceedings). The
omission of these rules is not a big surprise, since agencies have separate conduct rules for agency lawyers (so no
need for Rule 3.8), do not have juries (the primary concern of Rules 3.6 and 3.7), have separate rules for
nonadjudicative proceedings (so no need for Rule 3.9). The only agencies with rules that parallel these rules are
USPTO, see 37 C.F.R. §§ 11.306 (parallel to Rule 3.6), 11.307 (parallel to Rule 3.7), 11.309 (parallel to Rule 3.9);
the Surface Transportation Board, 49 C.F.R. § 1103.26 (parallel to Rule 3.6); JAG, see 32 C.F.R. §§ 776.45 (parallel
to Rule 3.6), 776.46 (parallel to Rule 3.7), 776.47 (parallel to Rule 3.8), 776.48 (parallel to Rule 3.9).
131
The parallel ABA Model Rule is 3.5(d) (“A lawyer shall not … engage in conduct intended to disrupt a
tribunal.”). See also 28 U.S.C. § 1927 (“Any attorney or other person admitted to conduct cases in any court of the
United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously
may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred
because of such conduct.”).
132
The parallel ABA Model Rule is 3.5(b) (“A lawyer shall not … communicate ex parte with [a judge,
juror, prospective juror or other official] during the proceeding unless authorized to do so by law or court order.”).
133
The parallel ABA Model Rule is 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a
good faith argument for an extension, modification or reversal of existing law.”). See also Fed. R. Civ. P. 11.
134
The parallel ABA Model Rule is 8.4(d) (“It is professional misconduct for a lawyer to … engage in
conduct that is prejudicial to the administration of justice.”). Rule 8.4(d) is not part of the “Advocate” rules, but
rather part of a group of rules on “Maintaining the Integrity of the Profession.” Rule 8.4 is titled “Misconduct” and
lists several general categories of misconduct, including but not limited to misconduct during an adversary
proceeding.
135
The parallel ABA Model Rule is 3.4(c) (“A lawyer shall not … knowingly disobey an obligation under
the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.”).
136
The parallel ABA Model Rule is 3.2 (“A lawyer shall make reasonable efforts to expedite litigation
consistent with the interests of the client.”).
130

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requirements or prohibitions.137 Of the remaining seven sampled agencies with specific
professional conduct rules, there are eleven topics covered by the rules of four or more agencies
(sometimes with more than one rule covering a topic), including all six of the most common
topics across all agencies just listed. The other five most common topics in the sample group are
competence,138 withdrawal,139 candor toward the tribunal,140 improperly influencing a judge or
official,141 and commission of a criminal act.142 Only one of the sampled agencies, DOL, has
professional conduct rules covering all eleven of the most common topics, even though three
other sampled agencies (SSA, DHS, and VA) have professional rules covering more topics
overall.143
The topics covered by the professional conduct rules of the seven sampled agencies with
specific rules exhibit no discernible pattern. In fact, none of the eleven most common topics
among the sampled agencies is covered by all the sampled agencies, and, with one exception, no
two of these topics are covered by the same configuration of agencies. The most addressed topics
among the interviewed agencies with specific professional conduct rules are disruptive conduct
and candor toward the tribunal, with six agencies each having rules on these two topics. The
agencies with one or more rules on disruptive conduct (often referred to in agency rules as
“contumacious” conduct) are USDA,144 DHS,145 FERC,146 SSA,147 DOL,148 and VA.149 The
137

29 C.F.R. § 102.177(a).
The parallel ABA Model Rule is 1.1 (“A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation.”). Rule 1.1 is not part of the “Advocate” rules, but rather part of a group of rules on the “ClientLawyer Relationship.”
139
The parallel ABA Model Rule is 1.16(c) (“A lawyer must comply with applicable law requiring notice
to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall
continue representation notwithstanding good cause for terminating the representation.”). Like Rule 1.1, Rule 1.16 is
part of the set of rules on the “Client-Lawyer Relationship.”
140
The parallel ABA Model Rules are 3.3(a)(1) (“A lawyer shall not knowingly … make a false statement
of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal
by the lawyer.”) and 3.3(a)(3) (“A lawyer shall not knowingly … offer evidence that the lawyer knows to be false. If
the 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.”). I have grouped these rules together because some of the agencies do so in their rules.
141
The parallel ABA Model Rule is 3.5(a) (“A lawyer shall not … seek to influence a judge, juror,
prospective juror or other official by means prohibited by law.”).
142
The parallel ABA Model Rules is 8.4(b) (“It is professional misconduct for a lawyer to … commit a
criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects.”). Like Rule 8.4(d), Rule 8.4(b) is part of the Misconduct rule in the group of rules covering “Maintaining
the Integrity of the Profession.”
143
The seven sampled agencies with specific professional conduct rules in order from greatest to least
number of covered topics are: SSA (23), DHS (19), VA (18), DOL (13), SEC (9), USDA (6), and FERC (4). The
total number of topics covered by professional conduct rules for all the agencies in this sample is 33, of which 24 are
topics covered by at least two of the sampled agencies.
144
7 C.F.R. §§ 1.141(d), 1.328(a)(3), 110.8(h)(4).
145
8 C.F.R. 1003.102(g).
138

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agencies with one or more rules on candor toward the tribunal are USDA,150 DHS,151 SEC,152
SSA,153 DOL,154 and VA.155 Thus, FERC has a rule on disruptive conduct but not one on candor
toward the tribunal, while SEC has a rule on candor toward the tribunal but not one on disruptive
conduct.
The next most addressed topics among the interviewed agencies with specific
professional conduct rules are delay, compliance with agency rules, ex parte contact, and
obstruction of justice. The agencies with one or more rules on delay are USDA,156 DHS,157
SSA,158 DOL,159 and VA.160 The agencies with a rule on ex parte contact are USDA,161 SEC,162
SSA,163 DOL,164 and VA.165 Ex parte contact rules are somewhat tricky to categorize, however,
because many agencies have a rule prohibiting ex parte contact that applies to representatives as
well as claimants but state consequences only for the claimant, not separate consequences for the
representative. I have erred on the side of including all ex parte rules unless it is clear that the
only potential sanction is against the claimant. The agencies with a rule on obstruction of justice
are VA, DHS, FERC, SSA, and DOL. Thus, VA, SSA, and DOL all have rules governing this
group of topics.
The remaining five topics in the eleven most addressed topics are covered by rules of just
146

18 C.F.R. § 385.2012(b).
20 C.F.R. §§ 404.1740(c)(7)(ii), 416.1540(c)(7)(ii).
148
29 C.F.R. §§ 18.22(d)(4), 18.87(b).
149
38 C.F.R. §§ 18b.15, 18b.90.
150
7 C.F.R. § 1.303(b). This section is not limited to representatives but is directed at “any person who
makes a written statement” to USDA.
151
8 C.F.R. § 1003.102(c). This rule is patterned on ABA Model Rules 3.3(a)(1) and 3.3(a)(3), with some
important differences. Most notably, the rule is violated if a representative acts “with reckless disregard” as well as
“knowingly.”
152
17 C.F.R. § 205.3(d)(2)(ii). This rule is part of the Sarbanes-Oxley rules and permits disclosure to the
SEC to prevent an issuer in an administrative proceeding from committing perjury or related offenses.
153
20 C.F.R. §§ 404.1740(a)(2), (b)(6), (c)(3), (c)(7)(ii)(B); 416.1540(a)(2), (b)(6), (c)(3), (c)(7)(ii)(B).
154
29 C.F.R. §§ 18.22(d)(2), 18.87(b).
155
38 C.F.R. §§ 14.632(a)(2), 633(c)(2).
156
7 C.F.R. § 1.328(a)(2).
157
8 C.F.R. § 1003.102(l).
158
20 C.F.R. §§ 404.1740(c)(4), 416.1540(c)(4). The SSA rule references § 404.911(b), which sets forth an
extensive list of “good cause” reasons for delay.
159
29 C.F.R. §§ 18.22(c) & (d)(3), 18.87(b).
160
38 C.F.R. § 14.632(c)(7).
161
7 C.F.R. §§ 1.151(b), 1.316, 110.8(n), 15.68.
162
17 C.F.R. § 201.114(a).
163
20 C.F.R. §§404.1740(c)(7)(ii)(C), 416.1540(c)(7)(ii)(C).
164
29 C.F.R. § 18.87(b).
165
38 C.F.R. § 18b.92.
147

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more than half (four) of the seven sampled agencies with specific rules of professional conduct.
These topics are competence, withdrawal, frivolous claims, improperly influencing a judge or
official, and commission of a criminal act. The agencies with one or more rules on competence
are DHS,166 SSA,167 DOL,168 and VA.169 The agencies with one or more rules on withdrawal are
SEC,170 SSA,171 DOL,172 and VA.173 The agencies with one or more rules on frivolous claims are
USDA,174 DHS,175 DOL,176 and VA.177 The agencies with a rule on improperly influencing a
judge or official are DHS,178 SSA,179 DOL,180 and VA.181 Finally, the agencies with one or more
rules on commission of a criminal act are DHS,182 SSA,183 DOL,184 and VA.185 These last two
topics are the only ones with the same configuration of agencies adopting rules on them. These
are also the four interviewed agencies with the greatest number of professional conduct rules.
Of the remaining topics, not covered by a majority of the sampled agencies, some are
covered by the rules of a significant number of agencies in total (defined here as 10 or more).
These include truthfulness in statements to third parties (11 agencies) and communication (10
agencies). The remainder of the topics covered by the interviewed agencies, but not by a
significant number of total agencies, fall into a range of categories. Three topics, duty to disclose
166

8 C.F.R. § 1003.102(o). This rule is the only agency rule that tracks the language of ABA Model Rule
1.1 exactly. It also adds the text of comment [5] to Rule 1.1.
167
20 C.F.R. 404.1740(a)(1) & (b)(3)(i), 416.1540(a)(1) & (b)(3)(i). Section 1740(b)(3)(i) tracks the
language of ABA Model Rule 1.1 but adds: “A representative must know the significant issue(s) in a claim, have
reasonable and adequate familiarity with the evidence in the case, and have a working knowledge of the applicable
provisions of the Social Security Act, as amended, the regulations, the Social Security Rules, and any other
applicable provisions of law.”
168
29 C.F.R. § 18.22(b).
169
38 C.F.R. §§ 14.632(b)(1), 14.633(d). VA also includes mandatory CLE requirements concerning
veterans’ benefits law in § 14.629. In addition, VA and SSA are the only two agencies that expressly require
knowledge of the statutes and regulations relevant to practice before those agencies.
170
17 C.F.R. § 201.102(d)(4) (notice only).
171
20 C.F.R. §§ 404.1740(b)(3)(iv), 416.1540(b)(3)(iv).
172
29 C.F.R. § 18.22(e).
173
38 C.F.R. §§ 14.631(c), 20.6 (special withdrawal rule for Board of Veterans’ Appeals).
174
7 C.F.R. § 1.303(a) (rule not specifically directed at representatives).
175
8 C.F.R. § 1003.102(j) & (u) (“boilerplate” filings). Section 102(j) is based more on Fed. R. Civ. P. 11
than on ABA Model Rule 3.1.
176
29 C.F.R. § 18.35.
177
38 C.F.R. § 14.633(c)(4).
178
8 C.F.R. § 1003.102(b).
179
20 C.F.R. §§ 404.1740(c)(6), 416.1540(c)(6).
180
29 C.F.R. § 18.22(d)(1)
181
38 C.F.R. § 18b.91.
182
8 C.F.R. § 1003.102(h).
183
20 C.F.R. §§ 404.1740 (c)(8), 416.1540(c)(8).
184
29 C.F.R. § 18.23(a)(1)(iii).
185
38 C.F.R. § 14.632(c)(4) & (11).

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adverse authority, witness tampering, and discovery abuse, are topics covered by the ABA
Model Rules section on “Advocacy.”186 Topics outside this group covered by the rules of three
of the sampled agencies include several addressing the lawyer-client relationship: diligence, fees,
and confidentiality. The only other topic outside the “Advocacy” group covered by the rules of
three of the sampled agencies is engaging in unethical conduct or acting unethically through
another. Topics outside the “Advocacy” group covered by the rules of two of the sampled
agencies, but not a significant number of total agencies, include aiding and abetting a violation or
rules or law, gifts from clients, conflict of interest of former agency employees, and general
dishonesty or misrepresentation. Finally, topics outside the “Advocacy” group covered by the
rule or rules of only one of the sampled agencies include representative authority, duties of an
organizational client, duties of managerial or supervisory representatives or their subordinates,
and advertising and solicitation.
The one topic covered by a significant number of total agencies but not by any agency in
the interviewed group is concurrent conflicts of interest (14 agencies).
VI. IMPLEMENTATION AND ENFORCEMENT OF THE AGENCY PROFESSIONAL CONDUCT RULES
One of the primary reasons for conducting this study was to try to get a better sense of
how the agencies implement and enforce their professional conduct rules. The interviews
included several questions attempting to get at these issues. First, do agencies make their
professional conduct rules easily available, and what kind of guidance, if any, do agencies give
to attorney and non-attorney representatives to assist them in determining their responsibilities
under these rules? Second, does the agency publicize its disciplinary actions? Third, how often
do agencies raise disciplinary issues or bring formal disciplinary proceedings? Fourth, do
agencies refer disciplinary matters to state disciplinary agencies or receive referrals from those
agencies? Fifth, and related, does the agency engage in any kind of reciprocal discipline? And
sixth, who enforces the rules within the agency? This section reports on the answers to these
questions received in the interviews, supplemented with references to the relevant agency rules.
A. Accessibility and Guidance
Rulemakers often try to reduce the burden of complying with their rules by increasing
accessibility to the rules or providing interpretive guidance. Although agency professional
conduct rules are available in the Code of Federal Regulations, which itself is accessible in
various ways, the findings from the previous section suggest that representatives may not find it
easy to locate these rules in the CFR, especially if those representatives do not generally practice
186

See ABA Model Rules of Professional Conduct, Rule 3.3(a)(2) (“A lawyer shall not knowingly … 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.”); Rule 3.4(b) (“A lawyer shall not … falsify
evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by
law.”); Rule 3.4(d) (“A lawyer shall not … in pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent efforts to comply with a legally proper discovery request by an opposing party.”).

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before an agency. That may not matter if the professional conduct rules are easily accessible
elsewhere, such as on the agency’s website.187 Most of the sampled agencies include their
professional conduct rules on their websites, though rather than separate out the professional
conduct rules, the agencies often simply list or link to all agency rules, or all the rules of practice
and procedure for that agency.188 Two agencies in the sample, NLRB and SEC, provide links to
the eCFR System maintained by the National Archives.189 Two other agencies in the sample
group, FERC and DHS, do not include their rules on their websites.190
Apart from accessibility, agencies generally provide little guidance on their professional
conduct rules. Unlike the ABA in its Model Rules of Professional Conduct and many state
disciplinary authorities, no agencies in the interviewed sample provide comments, illustrations,
or ethics opinions on their rules. The DHS/EOIR rules do include several comments from the
ABA Model Rules of Professional Conduct in the text of the rules.191 Some agencies publish a
practice and procedure manual,192 fact sheet,193 or web page194 that discusses their professional
187

The Administrative Conference has previously adopted recommendations regarding the accessibility of
agency adjudication rules. Admin. Conf. of the U.S., Recommendation 2018-5, Public Availability of Adjudication
Rules, 84 Fed. Reg. 2142 (Feb. 6, 2019).
188
See https://oalj.oha.usda.gov/rules (USDA); https://www.ssa.gov/representation/conduct_standards.htm
(SSA); www.va.gov/ogc/accreditation.asp (VA) (link to a pdf for Standards of Conduct under Fact Sheets);
www.dol.gov/agencies/oalj/topics/libraries/LIBRULES (DOL). The DOL webpage includes a helpful section on the
regulatory history of its rules of practice and procedure.
189
See www.nlrb.gov/guidance/key-reference-materials/rules-regulations (NLRB);
https://www.sec.gov/about/rulesofpractice.shtml (SEC). Interestingly, the link on the SEC webpage is only to Part
200, not to Part 205 (Sarbanes-Oxley Rules), though once in the eCFR system, one can get to the Part 205 rules.
190
An interviewee from FERC stated that the agency follows the Department of Energy practice manual,
but I was not able to locate that on the DOE website. Although DHS does not include its rules or any other
information relating to its conduct rules on its website, EOIR, with which DHS closely coordinates on these issues,
does publish several policy manuals, referenced below.
191
See 8 C.F.R. § 1003.102(o) (incorporating part of Comment [5] to ABA Model Rule 1.1); 8 C.F.R. §
1003.102(q) (incorporating part of Comments [2]-[4] of ABA Model Rule 1.3).
192
NLRB publishes a Guide to Board Procedures, which can be accessed on its website,
www.nlrb.gov/guidance/key-reference-materials/manuals-and-guides. The Guide includes a brief section entitled
Misconduct by an Attorney or Other Representative. The section references (but does not included the text of) Rule
102.177, cites to several cases, and states that allocations of misconduct “may be brought to the attention of the
Associate General Counsel in the Division of Operations-Management by any person.” EOIR, which coordinates
with DHS, has several different types of practice manuals. It has a Policy Manual with Chapters on OCIJ (Office of
Chief Immigration Judge) Practice (Chapter 10 of which is entitled Discipline of Practitioners, and includes a
section on Filing a Complaint) and BIA (Board of Immigration Appeals) Practice (Chapter 11 of which is entitled
Discipline, and includes a section on Complaints). See www.justice.gov/eoir/eoir-policy-manual.
193
The EOIR Fact Sheet can be accessed through the web page for the EOIR Policy Manual, cited above,
which in Part I – Introduction includes Chapter 6 on Attorney Discipline. That web page in turn has a link to the
“Attorney Discipline website.” Clicking on that lick leads to a web page entitled Attorney Discipline Program,
www.justice.gov/eoir/attorney-discipline-program, which includes a link to an Attorney Discipline Fact Sheet (both
in English and Spanish), a link to a form for submitting a complaint (again, both in English and Spanish), and lists of
Recognized Organizations, Accredited Representatives, and Currently and Previously Disciplined Practitioners.
Various forms can also be found at www.justice.gov/eoir/formslist.htm. Under the lists of Currently and Previously
Disciplined Practitioners, one finds links to the materials in the Federal Register from the 2000 and 20008 revisions

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conduct rules, though those publications generally focus more on the procedures for enforcing
the rules than substance. An interviewee from the SEC said that the agency does offer Practicing
Law Institute presentations, including Power Point slides, discussing its professional conduct
rules, but does not publish those on its website. An interviewee from the VA said that the VA
gives presentations in which the agency discusses past violations of its professional conduct
rules, but these presentations are also not available on the agency website.
B. Publication of Disciplinary Orders
Even if agencies do not provide much guidance in general about their professional
conduct rules, they could provide information about actual discipline they impose, which could
inform practitioners about the types of conduct the agencies find most objectionable. Most of the
interviewed agencies do not, however, publish this information. Three of the interviewed
agencies – USDA, FERC, and the VA – provide no information at all about discipline cases.
Another interviewed agency – EOIR (DHS) – publishes lists of disciplined practitioners but not
the grounds for discipline.195 That suggests the main intent is to provide information for
claimants looking for information about representatives rather than for practitioners. The NLRB
publishes its disciplinary opinions, but these are not easily accessible on the NLRB website.196
Only one agency – the SEC197 – regularly publishes on its website disciplinary orders that
to the Professional Conduct rules. It seems somewhat odd to put those links on these web pages rather than on the
Attorney Discipline Program web page.
The VA publishes several Fact Sheets on its website under the Office of General Counsel/Accreditation &
Discipline web page. See www.va.gov/ogc/accreditation.asp. These include pdfs on the Standards of Conduct and
How to File a Complaint Regarding Representation.
194
See https://www.ssa.gov/representation/conduct_standards.htm. The SSA web page is entitled Standards
of Conduct for Representatives. It contains links to the conduct rules, as well as to the SSA’s Program Operations
Manual (POMS) and Hearings, Appeals, and Litigations Law Manual (HALLEX). The web page also states: “Any
person who believes that an attorney or non-attorney representative has acted in a manner that violates the Rules of
Conduct should promptly report that representative to an SSA field or hearing office.” The web page also gives the
address of the Office of General Counsel of SSA.
195
Under 8 C.F.R. § 292.3(h)(3), DHS “may ... disclose[] to the public” disciplinary actions other than
private censures (unless those are introduced as evidence of prior discipline in a subsequent proceeding). Similarly,
under 8 C.F.R. § 1003.106(c) states: “If disciplinary sanctions are imposed against a practitioner or a recognized
organization (other than a private censure), the Board may require that notice of such sanction be posted at the
Board, the Immigration Courts, or DHS for a period of time during which the sanctions are in effect, or for any other
period of time as determined by the Board.” The EOIR website (but not the DHS website) has links to Currently and
Previously Disciplined Practitioners at www.justice.gov/eoir/attorney-discipline-program and
www.justice.gov/eoir/profcond/chart.htm. The lists include the name of the practitioner, the date of discipline, the
nature of the discipline imposed, and whether the practitioner was reinstated (Currently Disciplined Practitioners are
generally those who have not been reinstated, whereas Previously Disciplined Practitioners are generally those who
have been reinstated). Although there are links to pdf files, those files do not include any information about the
nature of the allegations, or the specific rules relied on.
196
NLRB does have a Case Search web page at www.nlrb.gov/search/case, but searches for “102.177" (the
NLRB’s professional conduct rule) or “Rule 102” or “Misconduct by Attorneys or Other Representatives” (the title
of the NLRB’s professional conduct rule) yielded no results.
197
SEC disciplinary orders can be found on the SEC website under Enforcement and then Administrative

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include information about the grounds for discipline. DOL has published a few disciplinary
orders, which are accessible on its website, but those orders do not always discuss the grounds
for discipline.198 An interviewee from SSA reports that the agency publishes a list of disqualified
representatives, but I was not able to locate a current list on the SSA website,199 at least on the
web pages dealing with representative conduct.200
C. Frequency of Discipline
One reason for the paucity of information about discipline is that there are not many
disciplinary cases in the agencies. That seems to be the case for most agencies in the interviewed
sample. An interviewee from the VA did not have information about the frequency of
disciplinary actions in that agency. An interviewee from FERC reported that professional
conduct problems were rare and cited the fact that practitioners who appear before the agency are
a relatively small bar of repeat players. An interviewee from USDA was not aware of a lawyer
ever being debarred from practicing before the agency, and the interviewee did not view the
professional conduct of representatives as a significant problem. An interviewee from NLRB
reported that from 1951-2008, the NLRB issued approximately 16 disciplinary decisions, a very
low number.201 An interviewee from that agency speculated that one possible reason there are
Proceedings, www.sec.gov/litigation/admin.htm. Although the web page includes all SEC orders in administrative
proceedings, not simply those related to practitioners, an interview from the SEC informed me that attorney
discipline cases can easily be found by searching under “Respondents” for “Esq.,” which I confirmed to be the case.
198
DOL disciplinary orders can be found on the DOL website under the Office of Administrative Law
Judge and then Keyword Search/Case Number Search under the Search Tools tab. An interviewee from DOL
informed me that attorney discipline cases (of which there is only one in recent years) can be found by clicking on
Search by Case Number and then typing in MIS (for miscellaneous) under Case Type (though not all MIS cases are
disciplinary cases). The most recent case is In the Matter of the Qualifications of Kevin M. Tracy, Esq. and Susan
M. Jeanette, Case No. 2017-MIS-0001 (June 11, 2019). The published order in that matter does not reveal the
grounds for discipline. On the other hand, In the Matter of the Qualifications of Edwin H. Rivera, Case No. 2009MIS-2 (Feb. 6, 2009) does discuss the concerns giving rise to a judicial inquiry, though the actual basis for
discipline was failure to cooperate with that inquiry.
199
The SSA does maintain a list of Sanctioned Representatives. The list was most recently updated on
October 9, 2020. See OGC’s List of Sanctioned Representatives (ssa.gov). The list simply includes the name of the
disciplined representative, the representative’s state and zip code, whether the representative is an attorney or nonattorney, the type of sanction (disqualified, suspended, not recognized), and the date of discipline. The list does not
indicate the grounds for discipline.
200
Another agency that publishes final disciplinary decisions is USPTO. USPTO publishes these decisions
on its OED (Office of Enrollment and Discipline) Reading Room website, which can be accessed by clicking on
Learning and Resources, then Patent and Trademark Practitioners, then Finding a patent (or trademark) practitioner,
and then clicking on the link for OED Final Decisions in the FOIA Reading Room under Disciplined Practitioners.
The Reading Room web page enables a searcher to organize the information by Proceeding Number, Decision
Related Text (type of decision), Respondent Name, Decision Type (Discipline, Fees, Legal, Moral, Reinstatement),
and Date (going back to 1996). Clicking on a Final Order leads to a pdf with an opinion discussing the grounds for
discipline.
201
See, e.g., In re: Kirk Caraway, 347 NLRB 884(2006); In re: James Simpson, 347 NLRB 883 (2006); In
re: Stuart Bochner, 322 NLRB 1096 (1997); Joel Keiler, 316 NLRB 763 (1995); Sargent Karch, 314 NLRB 482
(1994); Rowland Trucking, 270 NLRB 247 (1984); Roy T. Rhodes, 152 NLRB 912 (1965); Herbert J. Nichol, 111

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not more cases is that, because the NLRB has only a general incorporation rule of conduct and
no specific supplementary rules, the NLRB generally pursues only egregious cases of obvious
misconduct.202
Similarly, an interviewee from DOL stated that misconduct by representatives is not a big
issue in the agency. That interviewee stated that fewer than 30 total cases have gone to the chief
judge for consideration of sanctions, including only one case in recent years involving the failure
to supervise staff.203 Before 2015, when the agency revised its rules, the interviewee was aware
of one reciprocal discipline case in which an immigration attorney engaged in fraud, and one
case involving an allegation of withholding of evidence from an ALJ in an agency proceeding,
which had ultimately been referred to a state disciplinary system rather than being resolved
within DOL.204 The interviewee also stated that the agency was fairly tolerant of zealous
advocacy and that ALJs did not want to intervene too often out of respect for the representative’s
role.
Disciplinary actions were more common in the other three interviewed agencies. An
interviewee from the SEC did not have any definitive information about frequency of discipline
but noted a significant number of reported cases. An interviewee from DHS reported that
approximately 30,000 attorneys appear before the agency.205 From that pool, DHS gets
approximately 150 disciplinary cases per year (only .5% of the total number of lawyers, but still
a nontrivial number of cases). EOIR gets approximately 600-700 cases per year (around 2% of
the total number of lawyers, assuming the same lawyers practice before both agencies).
Finally, an interviewee from SSA did not have information about the frequency of
disciplinary cases but did note several recurring professional conduct issues, including
representatives’ failing to provide requested information to the agency in a timely manner and
failing to communicate with clients. However, in the interviewee’s view, the agency initiates
relatively few disciplinary cases, in part because it is difficult for an ALJ to accuse attorneys of
not doing a good job. ALJs are conscious of the fact that the legal community of SSA lawyers is
relatively small, and ALJs are hesitant to take action that could ruin a representative’s career.
The SSA interviewee also suggested that historically, the Office of General Counsel (OGC),
which is responsible for initiating formal discipline within SSA, generally takes the “lowest
NLRB 447 (1955) (non-attorney union representative suspended for threatening decertification petitioner during
recess in hearing). In a recent ruling, the NLRB referred allegations of unethical conduct against two lawyers to the
Investigating Officer for investigation and such disciplinary action as may be appropriate. National Association of
Broadcast Employees & Technicians, 371 NLRB No. 15 n.4 (Aug. 25, 2021).
202
That speculation is consistent with the NLRB’s conduct rule, which states that only misconduct of an
“aggravated character” may be grounds for sanction. 29 C.F.R. § 102.177(c).
203
In the Matter of the Qualifications of Kevin M. Tracy, Esq. and Susan M. Jeanette, Case No. 2017-MIS0001 (June 11, 2019).
204
Lawyer Disciplinary Board v. Smoot, 716 S.E.2d 491 (W.Va. 2010) (suspending lawyer from practice
for one year for violating Rules 3.4(c), 8.4(c) and 8.4(d) of the West Virginia Rules of Professional Conduct).
205
As a comparison, there are approximately 48,000 active patent practitioners. Jon J. Lee, Double
Standards: An Empirical Study of Patent and Trademark Discipline, 61 B.C. L. Rev. 1613, 1632 (2020).

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hanging fruit” and the “worst of the worst,” including people already disqualified elsewhere
(reciprocal discipline is discussed below). According to the interviewee, OGC generally needs
“hard evidence” to proceed and so is reluctant to do so. The SSA interviewee’s observations are
confirmed by the last available public list of disciplined practitioners. From 1983 to 2018, the
SSA imposed formal discipline on 303 practitioners, an average of approximately 9 per year.206
Although not included in the interview sample, the USPTO was recently the subject of an
empirical study, which found that over a 16-year period from 2003 to 2018, USPTO disciplinary
rates “though increasing slightly ..., lag far behind state disciplinary authorities.”207 The study
found that over this period, the USPTO issued 410 public disciplinary orders,208 averaging 26
disciplinary cases per year,209 which is approximately a .04% disciplinary rate compared to .27%
disciplinary rate for state discipline.210 The top areas for discipline were diligence,
misrepresentation, conduct prejudicial to the administration of justice, conduct reflecting
adversely on fitness to practice, and client communication.211
D. Referrals
When agency officials learn of potential professional misconduct by an attorney
representative, the officials may, either in addition to, or instead of, pursuing disciplinary action
within the agency, choose to refer the matter either to a state disciplinary authority or to another
agency. In some cases, referral may even be ethically required.212 As in other areas, the agencies
take different approaches to the question of referral, both in terms of their rules and their
practices. In addition, some interviewees reported that their agencies receive referrals from state
disciplinary authorities.
Among the sampled agencies, three – FERC, USDA, and SSA – have no referral rule and
the interviewees from those agencies were not aware of a regular practice of doing so. Two other
interviewed agencies – the SEC and the NLRB – have no referral rule but, according to the
206

See https://www.ssa.gov/foia/OGC_SanctionedReps_current.pdf.
Lee, supra, at 1619. The study also concluded that “patent practitioners are disciplined more frequently,
more severely, and more publicly than their trademark counterparts.” Id.
208
Id. at 1657.
209
Id. at 1659.
210
Id. at 1661.
211
Id. at 1669.
212
See ABA Model Rules of Professional Conduct, Rule 8.3(a) (“A lawyer who knows that another lawyer
has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional
authority.”); ABA Model Code of Judicial Conduct, Rule 2.15(B) (“A judge having knowledge that a lawyer has
committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer’s
honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.”). An
administrative law judge is a “judge” within the meaning of the Code, id. Rule 1(B). “Knowledge” under both rules
is defined as “actual knowledge,” which “may be inferred from circumstances.” ABA Model Rules of Professional
Conduct, Rule 1.0(f); ABA Model Code of Judicial Conduct, Terminology.
207

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interviewees from those agencies, do have a practice of referring cases to other disciplinary
authorities. An interviewee from the SEC reported that the agency both makes referrals to and
receives referrals from state disciplinary authorities. The interviewee also reported, based on that
person’s experience, that state agencies take referrals from the SEC seriously.
According to an interviewee from NLRB, that agency has a policy of notifying any
appropriate state bar, as well as the ABA National Lawyer Regulatory Data Bank, of disciplinary
sanctions the agency imposes on an attorney. The NLRB noted this policy when it published its
1996 revision to its professional conduct rule, which the NLRB declined to amend by putting the
policy in the rule.213 In addition, based on the NLRB’s Casehandling Manual, the General
Counsel of the NLRB may report ethical violations to a state bar, usually after the NLRB
completes its internal process. An interviewee from the NLRB also recalled one case in which
the Board referred to the state bar an allegation that an attorney had suborned perjury during the
pre-complaint investigation of an unfair labor practice charge.214 In that case, the NLRB was
unable to discipline the lawyer within the agency because at that time (before the 1996 rule
revision), the agency’s professional conduct rule was limited to misconduct in hearings. Finally,
the interviewee reported that earlier this year, an ALJ had considered reporting a lawyer’s
conduct to a state disciplinary authority without making an independent finding of misconduct.
The other three agencies – VA, DOL, and DHS – have referral rules, which differ in
several respects. The VA has a permissive referral rule, which states: “In cases where the
accreditation of an agent or attorney is cancelled, the Office of the General Counsel may notify
all agencies, courts, and bars to which the agent or attorney is admitted to practice.”215 In
addition, the VA in practice sometimes makes referrals to state agencies when it concludes that
the state disciplinary authority is in a better position to investigate the alleged misconduct.
Relevant factors include whether the alleged misconduct goes beyond VA-specific issues,
whether the VA has applicable rules and appropriate penalties to address the misconduct, and the
desirability of making the matter public. An interviewee from the VA reported that state
authorities have sometimes referred matters to the VA, and sometimes have even sent a case
back to the VA that the VA had referred over to the state authority. According to the interviewee,
that happens because statute authorities do not always understand the VA’s special fee rules or
its adjudication system.
DOL has a mandatory referral rule that applies whenever it disqualifies an attorney
213

61 Fed. Reg. 65323, 65330-31 (Dec. 12, 1996) (“We generally agree that the appropriate state bar(s)
should be notified of any disciplinary sanctions imposed on an attorney and ... it is our policy to do so absent special
circumstances. ... However, as such notification of a public disciplinary action does not itself constitute discipline or
create any rights or impose any obligations on the respondent attorney, we see no need to include a provision to this
effect in the rule ....”). The NLRB stated the “special circumstances” as potentially including a situation where the
Board agrees not to refer the matter pursuant to a settlement agreement, id. n.16, which could raise ethical issues, at
least for lawyers and ALJs.
214
Townsend Mfg. Co., 317 NLRB 1169 (1995).
215
38 C.F.R. § 14.633(i).

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representative. The rule requires the Chief Judge to provide a copy of the decision and order not
only to the jurisdictions in which the attorney is licensed to practice, but also to the National
Lawyer Regulatory Data Bank maintained by the ABA Standing Committee on Professional
Discipline.216 DOL reported that ALJs make referrals both to state disciplinary authorities and,
for immigration cases, to DHS.
DHS has the most elaborate referral rule of all the interviewed agencies. The rule states:
In addition to, or in lieu of, initiating disciplinary proceedings against a practitioner, the
DHS disciplinary counsel may notify any appropriate Federal and/or state disciplinary or
regulatory authority of any complaint filed against a practitioner. Any final
administrative decision imposing sanctions against a practitioner (other than a private
censure) will be reported to any such disciplinary or regulatory authority in every
jurisdiction where the disciplined practitioner is admitted or otherwise authorized to
practice.217
Unlike the VA and DOL referral rules, the DHS rule explicitly incorporates the option to
discipline a practitioner internally in addition to referring the matter to another disciplinary
authority or simply to refer the matter and not discipline the practitioner within DHS. In addition,
unlike the VA and DOL referral rules, the DHS rule expressly permits DHS to make a referral at
the complaint stage; DHS need not wait to make a referral until it completes its internal process.
Like DOL’s rule, the DHS rule includes a mandatory referral provision for any case in which
DHS imposes sanctions. In addition to this referral rule, both DHS and EOIR have mandatory
mutual referral rules to each other, and in fact often jointly file charges against a practitioner.218
Finally, although not required by the EOIR referral rule, EOIR disciplinary counsel reports
public discipline to the ABA’s National Lawyer Regulatory Data Bank, as DOL does.
An interviewee from DHS reported that the agency does in fact make referrals to state
disciplinary authorities. The agency does not, however, always learn the outcome of these
matters because some discipline is confidential. The DHS interviewee reported that sometimes
state authorities hesitate to take on immigration matters, and, as with the VA, refer disciplinary
cases in this subject area to DHS/EOIR because the state authorities may not have much
knowledge of immigration law, especially in jurisdictions that do not have many immigration
cases.219
216

29 C.F.R. 18.23(b).
8 C.F.R. § 292.3(g) (emphasis added). EOIR has the same referral rule. 8 C.F.R. § 1003.106(d).
218
8 C.F.R. § 292.3(d)(1) (“The DHS disciplinary counsel will notify EOIR disciplinary counsel of any
disciplinary complaint that pertains, in whole or in part, to a matter before the Board or the Immigration Courts.”); 8
C.F.R. § 292.3(e)(3) (“A copy of the Notice of Intent to Discipline shall be forwarded to the EOIR disciplinary
counsel.”); 8 C.F.R. § 1003.105(b): “A copy of the Notice of Intent to Discipline filed by the EOIR disciplinary
counsel shall be forwarded to DHS.”).
219
The interviewee comments are consistent with the cooperative approach to discipline contemplated by
the Attorney General when proposing amendments to the regulations governing the discipline system in the Bureau
217

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E. Reciprocal Discipline
Related to referral rules, reciprocal discipline rules have been adopted by many
agencies.220 Reciprocal discipline means that a representative disciplined in another jurisdiction
or by another agency may, for that reason alone (rather than for misconduct before the agency
now seeking to impose discipline), be disqualified from serving as a representative initially,221
of Immigration Affairs and Immigration Courts in 2000:
EOIR and the [Immigration and Naturalization] Service [now DHS] anticipate working closely with the
various state bars when investigating disciplinary complaints…. Cooperation between the federal and
government and the 51 state bar disciplinary authorities will optimize resources and minimize duplication
of investigations. In general, state bars have not been resistant to the Federal government’s efforts to assist
in protecting the public by scrutinizing the professional conduct of attorneys.
Professional Conduct for Practitioners; Rules and Procedures, 65 Fed. Reg. 39, 513, 39,524 (June 27, 2000). In the
context of non-attorney representation, an example of this state-agency cooperation can be found in a New Jersey
Unauthorized Practice of Law Opinion from 2005 concerning the problem of non-attorney representatives providing
incompetent, overpriced, or fraudulent immigration services, often before a hearing before the agency:
We believe that the interests of the public will be better served if this Committee works cooperatively with
federal authorities in this regulatory area. In most complaints filed with our Committee it appears that the
ministrations of unauthorized representatives are rarely brought before immigration agencies; if they are,
defects in the filings and proceedings often already have resulted in irreparable harm to the unwary litigantvictims. In a cooperative venture, our Committee will continue to receive complains from attorneys and the
public alleging unauthorized practice of law in immigration matters. The Committee will then examine the
alleged qualifications of the respondent under 8 C.F.R. § 292.1 and his or her compliance with the
conditions set forth in the pertinent subsection under which representation is undertaken. If a respondent
before our Committee is found to be unaccredited or otherwise not permitted to provide representation or
services in immigration matters, the Committee will communicate with Department of Justice, Executive
Office for Immigration Review, the local immigration court, the Department of Homeland Security Office
of Citizenship and Immigration Services and Immigration and Customs enforcement asking whether the
agencies intend to mandate compliance or whether the federal authorities will cede jurisdiction, in
appropriate cases, to the Committee on the Unauthorized Practice of Law.
N.J. UPL Op. 42 (2005).
220
In addition to the agencies in the interviewed sample, other agencies that have an express reciprocal
discipline rule of some kind include the Federal Reserve Board, 12 C.F.R. §§ 263.94(d) & (g); Federal Deposit
Insurance Corporation, 12 C.F.R. § 308.109(b)(1); Commodity Futures Trading Commission, 17 C.F.R. § 14.6;
Bureau of Alcohol Tobacco and Firearms, 31 C.F.R. § 8.52(h); Judge Advocate General (Navy) 32 C.F.R. § 776.71;
US Patent and Trademark Office, § 11.804(h); Department of Interior, 43 C.F.R. § 1.6(a); and Federal
Communications Commission, 47 C.F.R. § 1.24(c).
221
Reciprocal discipline does not run afoul of the APA rule discussed above because an attorney
disciplined in another jurisdiction would not be “in good standing” in that jurisdiction and so not permitted to
practice under the APA rule. See 5 U.S.C. § 500(b) (“An individual who is a member in good standing of the bar of
the highest court of a State may represent a person before an agency on filing with the agency a written declaration
that he is currently qualified as provided by this subsection and is authorized to represent the particular person on
whose behalf he acts.”). The matter is less clear if an attorney is disciplined in one jurisdiction but still a member of
good standing in another jurisdiction. Read literally, § 500(b) only requires an attorney to be a member in good
standing of the bar of “a” State. However, if a jurisdiction has adopted ABA Model Rule 5.5, a lawyer disciplined in
one state would not be able to take advantage of the rule allowing the lawyer to practice before a federal agency
located in a different state where the lawyer is not licensed, because that rule only allows such practice if the lawyer
is not “disbarred or suspended from practice in any jurisdiction.” ABA Model Rule 5.5(c) & (d) (emphasis added).
On the other hand, that rule would not prohibit a lawyer licensed in states A and B and disciplined only in state A

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and is also subject to discipline by the agency if the person has already been serving as a
representative despite the restriction on practice elsewhere.222 Reciprocal discipline may be the
most common form of agency discipline. An interviewee from DOL reported that to be the case
in that agency, and that is also a finding of a recent empirical study of the USPTO.223 Once
again, the agencies in the sample vary in their approaches to reciprocal discipline. Some have no
rule, some have different rules depending on when in the proceeding the agency becomes aware
of the outside discipline, and some expressly require an attorney representative to self-report
discipline against that attorney in another jurisdiction or agency.224
FERC, NLRB, and USDA have no express reciprocal discipline rule.225 The other five
interviewed agencies have one or more reciprocity rules. The SEC rule is the simplest, stating
that “[a]ny attorney who has been suspended or disbarred by a court of the United States or of
any State ... shall be forthwith suspended from appearing or practicing before the
Commission.”226 The rule adds that the discipline triggering the reciprocity is deemed to occur at
the time of the initial order, even if the attorney has the right to appeal that order.
The VA and DOL split their reciprocal discipline rules into rules denying the
representative the right to appear in the first instance (which VA calls accreditation and DOL
calls admission) and rules imposing a sanction after the representative has already been engaged
in appearing and practicing before the agency (which VA calls cancellation and DOL calls

from practicing before a federal agency located in state B. For a case upholding the imposition of reciprocal
discipline by USPTO based on discipline the lawyer received in one state, but where the lawyer had not been given
reciprocal discipline in other states in which the lawyer was licensed, see Chaganti v. Lee, 187 F. Supp.3d 682, 693
(E.D. Va. 2016) (finding that “the decisions of other state bars are irrelevant to the PTO’s decision whether to
impose reciprocal discipline in accordance with its own standards”). The court in Chaganti noted that an order
suspending an attorney from practice before the USPTO must be done in accordance with the Administrative
Procedure Act, id. at 690, but did not discuss § 500(b), likely because the practitioner’s attorney did not raise that
argument.
222
The ABA includes a reciprocal discipline provision in its Model Rules for Lawyer Disciplinary
Enforcement (Rule 22), and many states have reciprocal discipline rules. Whether a state disciplinary authority must
apply reciprocal discipline to a final disciplinary order by an agency is beyond the scope of this report. See In re
Kelly, 857 So.2d 451 (La. 2003) (disciplining a lawyer who had previously been disqualified by SSA but on the
basis of an independent review of the facts rather than reciprocal discipline); Attorney Grievance Commission of
Maryland v. Miller, 528 A.2d 481 (Md. 1987) (holding that a US Court of Appeals’ affirmance of an Interstate
Commerce Commission suspension was not a “disciplinary hearing by a judicial tribunal” and its decision was not
conclusive proof of an attorney’s guilt for purposes of state discipline).
223
Lee, supra, at 1659 (finding that reciprocal discipline represents almost half of all public discipline
imposed by USPTO).
224
In addition to the interviewed agencies, the USPTO rules also include a self-reporting duty. 37 C.F.R. §
11.24.
225
USDA has an internal reciprocity rule, under which a lawyer who is found to have engaged in unethical
conduct in one proceeding before the agency, is precluded from acting as counsel in any other proceeding before the
agency. 7 C.F.R. § 1.141(d)(2). USDA likely has such a rule because of the fragmented nature of its practice rules
under different statutory regimes overseen by the agency, as discussed above.
226
17 C.F.R. § 201.102(e)(2).

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disqualification). The post-appearance reciprocity rules of the two agencies are similar227 but the
pre-appearance rules differ in a few ways. First, the VA non-accreditation rule is mandatory,
with only a limited exception for a situation in which an attorney has been reinstated by a
jurisdiction that imposed discipline but has not yet been reinstated by another jurisdiction that
had imposed reciprocal discipline based on the first jurisdiction’s discipline.228 By contrast, the
DOL’s admission rule gives the ALJ the discretion to admit a lawyer disciplined elsewhere to
practice before the agency.229 Second, the DOL rule, but not the VA rule, imposes a duty on an
attorney to self-report any disciplinary action against that attorney.230
Like DOL, both DHS and SSA include a self-reporting duty in their rules.231 But neither
227

The VA rule states: “Accreditation or authority to provide representation on a particular claim shall be
canceled when the General Counsel finds, by clear and convincing evidence, one or more of the following: ...
Suspension or disbarment by any court, bar, or Federal or State agency to which such individual providing
representation under §14.630, representative, agent, or attorney was previously admitted to practice, or
disqualification from participating in or appearing before any court, bar, or Federal or State agency and lack of
subsequent reinstatement.” 38 C.F.R. § 14.633(c)(5). The DOL further splits its post-appearance reciprocity rule in
two. 29 C.F.R. 18.23(a)(1)(i) (“Representatives qualified under 18.22 may be disqualified for ... Suspension of a
license to practice law or disbarment from the practice of law by any court or agency of the United States, highest
court of a State, Commonwealth, or Territory of the United States, or the District of Columbia.”); 29 C.F.R.
18.23(a)(1)(ii) (“Representatives qualified under 18.22 may be disqualified for ... Disbarment from the practice of
law on consent or resignation from the bar of a court or agency while an investigation into an allegation of
misconduct is pending.).
228
38 C.F.R. § 14.629(b)(5) (“VA will not accredit an individual as an agent or attorney if the individual
has been suspended by any court, bar, or Federal or State agency in which the individual was previously admitted
and not subsequently reinstated. However, if an individual remains suspended in a jurisdiction on grounds solely
derivative of suspension or disbarment in another jurisdiction to which he or she has been subsequently reinstated,
the Chief Counsel with subject-matter jurisdiction may evaluate the facts and grant or reinstate accreditation as
appropriate.”). See also 38 C.F.R. § 14.629(b)(3) (“Evidence showing lack of good character and reputation
includes, but is not limited to, one or more of the following: ... suspension or disbarment from a court, bar, or
Federal or State agency on ethical grounds; or resignation from admission to a court, bar, or Federal or State agency
while under investigation to avoid sanction.”).
229
29 C.F.R. § 18.22(b)(1)(ii) (“An attorney who is not in good standing in his or her licensing jurisdiction
may not represent a party or subpoenaed witness before the Office of Administrative Law Judges, unless he or she
obtains the judge’s approval. Such an attorney must file a written statement that establishes why the failure to
maintain good standing is not disqualifying. The judge may deny approval for the appearance of such an attorney
after providing notice and an opportunity to be heard.”).
230
29 C.F.R. § 18.22(b)(1)(iii) (“An attorney representative must promptly disclose to the judge any action
suspending, enjoining, restraining, disbarring, or otherwise currently restricting the attorney in the practice of law in
any jurisdiction where the attorney is licensed to practice law.”). According to the DOL interviewee, this
requirement was added after a case in which a lawyer had been disbarred in one jurisdiction but was still in good
standing in other jurisdictions and did not inform the agency of the disbarment.
231
The DHS self-reporting rule states: “a practitioner must notify DHS disciplinary counsel if the
practitioner has been ... suspended or disbarred by, or while a disciplinary investigation or proceeding is pending has
resigned from, the highest court of any State, possession, territory, or Commonwealth of the United States, or the
District of Columbia, or any Federal court; or placed on an interim suspension pending a final resolution of the
underlying disciplinary matter.” 8 C.F.R. § 292.3(c)(4); see also 8 C.F.R. § 1003.103(c) (EOIR). SSA divides the
self-reporting duty into three separate rules. 20 C.F.R. § 404.1740(b)(7) (stating that a representative must disclose
“whether the representative is or has been disbarred or suspended from any bar or court to which he or she was

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agency has an express pre-appearance rule (though presumably if an attorney self-reported
discipline at the outset, as required, an ALJ could deny that attorney the right to appear before
either agency). The primary reciprocal discipline rules of the two agencies are similar,232 but
each agency adds distinct reciprocal discipline rules. DHS includes a reciprocal discipline rule
with EOIR, consistent with its general coordination with that agency,233 as well as a reciprocal
discipline rule (incorporated via EOIR) for a lawyer found to have provided ineffective
assistance of counsel by a court or ALJ in an immigration proceeding, if a disciplinary complaint
concerning the matter is subsequently filed.234 SSA has a rule providing guidance to a Hearing
Officer tasked with considering reciprocal discipline.235 The rule permits the Hearing Officer not
to disqualify the practitioner if the prior discipline was imposed solely for “administrative
reasons” such as failure to pay dues or complete CLE requirements. On the other hand, the rule
permits the Hearing Officer to disqualify the practitioner regardless of how long the other
imposed discipline lasts, and also directs the Hearing Officer not to “re-examine or revise the
factual or legal conclusions that led to the disbarment, suspension, or disqualification.”236
That last aspect of the SSA rule, relating to whether in effect a practitioner can
collaterally challenge before the agency discipline previously imposed by another disciplinary
authority, raises potential due process questions. DHS pointed out that it has long been guided by
a precedent requiring the agency seeking to impose reciprocal discipline to “include the
opportunity [for the practitioner] to show that the [previous] state order was based on an invalid
procedure or patently inadequate evidence.”237 In this regard, it is worth noting that USPTO
previously admitted to practice”); 20 C.F.R. § 404.1740(b)(8) (stating that a representative must disclose “whether
the representative is or has been disqualified from participating in or appearing before any Federal program or
agency”); 20 C.F.R. § 404.1740(b)(9) (stating that a representative must disclose “whether the representative has
been removed from practice or suspended by a professional licensing authority for reasons that reflect on the
person’s character, integrity, judgment, reliability, or fitness to serve as a fiduciary”).
232
The DHS rule, via EOIR, subjects a lawyer to discipline if the lawyer: “Is subject to a final order of
disbarment or suspension, or has resigned while a disciplinary investigation or proceeding is pending.” 8 C.F.R. §
1003.102(e). See, e.g., Gadda v. Ashcroft, 377 F.3d 934 (9 th Cir. 2004) (disbarring a lawyer from practicing before
the Ninth Circuit where the lawyer had first been disbarred by the California disciplinary authority and then had
been reciprocally disciplined by DHS based on the state discipline). SSA again breaks up the reciprocal discipline
rule into three separate sections, the first two of which apply to any representative and the third of which applies
only to non-attorney representatives. 20 C.F.R. § 404.1745(d) (sanctions can be imposed if a representative “[h]as
been, by reason of misconduct, disbarred or suspended from any bar or court to which he or she was previously
admitted to practice”; 20 C.F.R. § 404.1745(e) (sanctions can be imposed if a representative “[h]as been, by reason
of misconduct, disqualified from participating in or appearing before any Federal program or agency”); 20 C.F.R. §
404.1745(f) (sanctions can be imposed on a non-attorney representative who “has been removed from practice or
suspended by a professional licensing authority for reasons that reflect on the person’s character, integrity,
judgment, reliability, or fitness to serve as a fiduciary.”).
233
8 C.F.R. § 292.3(e)(3).
234
8 C.F.R. § 1003.102(k).
235
20 C.F.R. § 404.1770(a)(2).
236
Id.
237
In re Bogart, 15 I&N Dec. 552, Interim Decision 2465, 1975 WL 31580 (1976) (Attorney General
opinion). The INS (predecessor agency to DHS) had imposed reciprocal discipline to disbar the lawyer from practice

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allows reciprocal discipline to be collaterally challenged based on due process or related
concerns with the prior discipline is USPTO.238
F. Who Enforces the Rules within the Agency?
Finally, all the agencies with professional conduct rules include procedural rules for
enforcing the conduct rules, including who within the agency is responsible for initiating formal
charges, who makes the initial determination, and who can hear appeals. The agencies again vary
in all these areas as well as in the level of detail provided. The discussion in the interviews
focused on how enforcement works in practice.
Several of the interviewed agencies have rules that provide little procedural detail. USDA
simply notes under its various conduct provisions who makes the determination that the rules
have been violated.239 The SEC rule simply states that the Commission enforces the conduct
rule.240 The FERC rule states that the rules of conduct can be enforced by the “presiding officer”
or the “Commission.”241 Similarly, DOL states that the Chief Judge makes a disqualification
determination, based on “reliable, probative and substantial evidence of record.”242 An
interviewee from DOL, however, stated that most disciplinary issues are resolved by the ALJ
during the course of a hearing in an informal way.
Unlike these agencies VA puts the initial responsibility for cancelling accreditation in the
hands of the General Counsel,243 who must find a violation by “clear and convincing
evidence.”244 The General Counsel’s decision is a “final adjudicative determination” that may be
appealed only to the Board of Veterans’ Appeals.245
based on a prior criminal conviction, People v. Bogart, 7 Cal. App.3d 257 (1970), and an order from the California
Supreme Court suspending him from practice in California, under a rule that at the time allowed the Board, with the
approval of the US Attorney General, to suspend any attorney who had been suspended from practice in any court.
The Ninth Circuit reversed this determination, stating that the lawyer “has a constitutional right to a hearing before
the agency before being denied the right to further practice before the agency, department regulations to the contrary
notwithstanding.” Bogart v. Carter, 445 F.2d 321 (9th Cir. 1971) (citing In re Ruffalo, 390 U.S. 544(1968) and
Theard v. United States, 354 U.S. 278 (1057)). Subsequently, the lawyer was suspended from practice in California,
In re Bogart, 511 P.2d 1167 (Cal. 1973), and the INS again sought to disbar the attorney, now based on the state
discipline. The Attorney General decision followed that action. To date, no other courts or agencies outside DHS
have cited the Ninth Circuit opinion or the Attorney General opinion.
238
37 C.F.R. § 11.24(d)(1)(i)-(iv).
239
See 7 C.F.R. § 1.26(b)(2) (Secretary); 7 C.F.R. § 1.141(d)(1) & 1.151(d) (Judge or Judicial Officer); 7
C.F.R. § 1.328(a) (Administrative Law Judge); 7 C.F.R. § 110.8(h)(3) (Presiding Officer).
240
17 C.F.R. § 201.102(e)(1); see also 17 C.F.R. § 205.6 (again simply referring to enforcement by the
SEC).
241
18 C.F.R. §§ 385.411(a)(5) & (b); 385.2101(a) & (b).
242
29 C.F.R. 18.23(a)(2).
243
38 C.F.R. § 14.633(b).
244
38 C.F.R. § 14.633(c).
245
38 C.F.R. § 14.633(h).

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The other three interviewed agencies have a more detailed procedural structure. In SSA,
after referral to a regional Office of General Counsel (OGC) office, that office begins an
investigation. OGC will then determine whether to issue a “notice containing a statement of
charges.”246 That can lead to a hearing before an ALJ hearing officer, designated by the Deputy
Commissioner for the Office of Hearings Operations.247 According to an SSA interviewee, three
to four ALJs regularly handle these matters. The ALJ’s decision is final,248 but can be appealed
to the Appeals Council.249
NLRB gives an ALJ, a Hearing Officer, or the Board authority on their own to
“admonish or reprimand” a representative who engages in misconduct at a hearing.250 More
formal proceedings can be triggered by any person, including an ALJ or the Board itself, filing
an allegation, which sets in motion a more elaborate set of procedures.251 No special form is
needed.252 An Investigating Officer, who is generally the head of the Division of Operations –
Management,253 conducts an investigation and makes a recommendation to the General
Counsel.254 If the General Counsel decides to go forward with disciplinary proceedings, the
accused representative is served with a formal complaint, given an opportunity to answer, and
given a public hearing before an ALJ.255 Prior to the hearing, a settlement may be reached with
the General Counsel. The settlement must be approved by the ALJ and, if disciplinary action is
included, the Board.256 If the hearing goes forward and misconduct is found, the Board may then
issue a final order imposing sanctions.257 The sanctioned practitioner may then seek judicial
review.258
In DHS, a complaint can be made by any person who believes a representative has
engaged in unprofessional conduct,259 though most complaints come from ALJs or other officers,
often because they notice missing documentation. Although the rule contemplates complaints
coming from clients or former clients, in fact, according to an interviewee from DHS, few
246

20 C.F.R. § 404.1750(a)
20 C.F.R. § 404.1765(b).
248
20 C.F.R. § 404.1770.
249
20 C.F.R. § 404.1780.
250
29 C.F.R. § 102.177(b).
251
29 C.F.R. § 102.177(e).
252
61 Fed. Reg. 65323-02 n.12.
253
29 C.F.R. § 102.177(e)(1).
254
29 C.F.R. § 102.177(e)(2).
255
29 C.F.R. § 102.177(e)(3)-(7).
256
29 C.F.R. § 102.177(e)(11).
257
29 C.F.R. § 102.177(e)(12). Although the rule states that the Board can order suspension, disbarment, or
“other sanctions,” an interviewee from NLBR was not clear what “other sanctions” the Board might impose.
258
29 C.F.R. § 102.177(f).
259
8 C.F.R. § 292.3(d)(1). Under this provision, the DHS disciplinary counsel must notify EOIR
disciplinary counsel if the allegation pertains to a matter before the Board or the Immigration Courts.
247

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complaints come from clients, making it hard to learn of misconduct toward clients as opposed to
misconduct toward the agency. The complaint is filed with the DHS disciplinary counsel. At the
present time, according to an interviewee, DHS has only one disciplinary counsel to handle all
complaints. If the matter is not informally resolved, the disciplinary counsel may issue a Notice
of Intent to Discipline,260 with a copy to EOIR disciplinary counsel.261 A hearing then occurs
with a right to appeal.262 According to a DHS interviewee, the Chief Immigration Judge appoints
an immigration judge as the adjudicating official. The judge must not be a judge before whom
the practitioner regularly appears or who is the complainant or witness in the matter.263
VII. CONCLUSIONS AND RECOMMENDATIONS
This study has attempted to shed light on the operations of federal agency disciplinary
systems applicable to practitioners representing parties involved in adjudicatory matters before
the agencies. Overall, the biggest conclusion, which confirms my earlier work on this topic, is
the great variety of approaches the agencies take on almost every possible issue, from how the
agencies regulate who may engage in practice, to how they structure the professional conduct
rules, to how they implement and enforce those rules. Because of time constraints and the limited
sample size, drawing any broad conclusions about what, if anything, should be done about this
variety is difficult. Variety is not necessarily bad and may simply reflect the great differences
among the agencies generally in their missions, governing statutes, other rules, structures, and
cultures. On the other hand, excessive variety can also create inefficiencies in running the
administrative state and may reflect a lack of knowledge of problems and alternative approaches
and administrative inertia.
With a few exceptions, the interviews did not reveal any great concern by the
interviewees with how the rules currently operate. Perhaps most professional conduct issues that
arise are successfully handled informally and the instances of serious ethical wrongdoing are
rare. There are reasons, however, to be cautious in drawing that conclusion. First, some
interviewees raised concerns about the lack of resources for handling disciplinary matters and the
tendency to ignore all but the most egregious cases of misconduct. Second, the interviewees were
all agency representatives rather than claimants or parties, private practitioners, or outside
observers. Those from outside the agencies may have a different perspective. Third, the recent
260

8 C.F.R. § 292.3(e).
8 C.F.R. § 292.3(e)(3).
262
8 C.F.R. § 292.3(f). The procedures for the hearing and appeal are set out in the EOIR rules, 8 C.F.R. §
1003.106.
263
The disciplinary procedure in USPTO is summarized in Lee, supra, at 1633-36. The process initiates
when the Office of Enforcement and Discipline (OED) Director receives information warranting an investigation. If
the Director finds that a violation has occurred, and does not reach a settlement agreement or believe that a warning
letter is sufficient, the Director may convene the Committee on Discipline, a three-member panel appointed by the
USPTO Director, which then makes an independent determination of whether there is probable cause to proceed. If
the Committee recommends going forward, there is a hearing before an ALJ who can impose sanctions. The
practitioner has a right to appeal to the OED Director, and then to the U.S. District Court for the Eastern District of
Virginia.
261

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empirical study of USPTO discipline documented a far lower percentage of practitioners being
disciplined by the agency than by state disciplinary authorities, thus providing some evidence
that there may be an underenforcement problem.
Nevertheless, despite the limited nature of the study, the possibility of beneficial or
harmless variety, and the lack of expressed concern over the current operation of the rules, this
section will offer several recommendations that the agencies might consider to improve the
operation of their internal disciplinary systems. The suggestions can be usefully grouped into
three categories: information and transparency, coordination, and harmonization.
A. Information and Transparency
There are several ways agencies could improve on providing information about agencies’
professional conduct rules and discipline under those rules. First, agencies could do a better job
of making their rules easier to find, both for claimants and practitioners. The agencies could
group their professional conduct rules together in a single location, or at least cross-reference
rules located elsewhere. The agencies could publish the rules on their websites, not simply
lumped in with other regulations or even rules of procedure but on separate web pages dedicated
to explaining the necessary qualifications, roles, and responsibilities of attorney and non-attorney
representatives, including how to file claims against representatives who have engaged in
misconduct. Second, agencies could provide more guidance for practitioners apart from the rules
themselves, whether in the form of examples and illustrations based on past cases or other
experience, or presentations to practitioners that the agency subsequently makes available on its
website, or summaries of past issues in disciplinary cases.264 Guidance could be particularly
helpful to non-attorney representatives and thus could improve the quality of their
representations and perhaps facilitate the greater use of these representatives. Third, the agencies
could provide more complete information about disciplinary sanctions on their websites.265
Although some agencies publicize up-to-date lists of disciplined representatives, not all do. Even
when agencies do provide these lists, they may not include information about the rules violated
and/or the nature of the violation. And even if that information is available by, say, downloading
a pdf of a disciplinary judgment, no agency provides the capability to search for cases involving
a certain rule or type of conduct, which would be more useful to practitioners.266 Even for non264

In his study of the USPTO, Professor Lee endorses the promulgation of ethics opinions by the agency.
Lee, supra, at 1684.
265
For arguments supporting greater disciplinary transparency in state disciplinary systems, see Leslie C.
Levin, The Case for Less Secrecy in Lawyer Discipline, 209 Geo. J. Legal Ethics 1 (2007); Jacquelyn M. Desch,
Note, Attorney Discipline Online, 29 Geo. J. Legal Ethics 921, 923 (2016).
266
In his study of the USPTO disciplinary system, Professor Lee writes:
The OED section of the [USPTO] website is difficult to navigate and requires users to actively look for
information on discipline. ... Although the OED Reading Room website allows users to search for public
discipline, users need to understand how disciplinary actions are organized in order to perform an effective
search. Even then, the search returns PDF versions of documents with descriptive labels such as ‘Final
Order,' which means a user has to read the entire document to learn the specifics about the practitioner's
misconduct and sanction imposed. Again, there is no compiled information on the public website about the

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public sanctions, agencies could publicize redacted information in particular cases or periodic
summary reports describing the rules violated and the nature of the misconduct.267
Another way to increase transparency and guidance would be for ACUS to publicize and
update a collection of agency rules similar to the spreadsheet that I created for my earlier article.
An updated version of that spreadsheet is attached as an appendix to this report. ACUS could
also create a webpage dedicated to practice by representatives before federal agencies that would
provide other information as well, such as links to the relevant agency webpages containing the
rules of professional conduct, lists of disciplined representatives, information about filing claims,
and information about qualifications. Agencies could use this resource to compare their rules
more easily to those of other agencies as well as to the ABA Model Rules of Professional
Conduct. Practitioners could also benefit from having a broader set of guidance on which to
draw. Apart from collecting the rules, ACUS or could collect and publicize important cases and
ethics opinions addressing agency representative practice generally. Alternatively or
conjunctively, the ABA Administrative Law Section could participate in these activities.
B. Coordination
A second area for improvement is to increase coordination among agencies and between
agencies and outside groups to facilitate reciprocal discipline, share information about best
practices and common issues, to and to discuss potential rule additions or modifications. With
respect to reciprocal discipline, interviewees several agencies reported their agency’s
participation in the ABA National Lawyer Regulatory Data Bank. Given the agency rules and
practices on referral and reciprocal discipline, it seems that all agencies with such rules, if not all
agencies with professional conduct rules, should participate in this Data Bank, both to refer
disciplined representatives and to check on the status of representatives before the agencies. With
respect to information sharing, interviewees from some agencies reported their agency’s
involvement with the National Organization of Bar Counsel or the National Association of State
Attorneys General. More federal agencies could participate in meetings with these groups to
learn of current problems and to improve coordination for purposes of reciprocal discipline. In
addition (or alternatively), those charged with enforcing the professional conduct rules within
agencies could create a group analogous to the National Association of Bar Counsel to discuss
common disciplinary issues in federal agencies, to compare rules and practices, and to discuss
proposed amendments. ACUS or the ABA Administrative Law section could potentially provide
support to facilitate such coordination.

frequency of public discipline or the types of misconduct that may lead to public discipline.
Lee, supra, at 1683. He argues that the USPTO could redesign its website to look more like North Carolina’s, which
enables “users to search past disciplinary orders, read a roadmap of the disciplinary process, view annual
disciplinary reports, and learn how to file a grievance or engage in alternative dispute resolution.” Id. n.361,
267
See Lee, supra, at 1684 (noting the “opportunity to share redacted information” related to private
discipline as well as the possibility of providing “short summaries of ... actions”).

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C. Harmonization
Focusing on greater information, transparency, and coordination could naturally lead to
greater harmonization of agency rules and procedures governing representative practice in
adjudicatory matters. Taking further steps to increase harmonization might be excessively costly
given available resources, politically infeasible, not justified by an agency’s structure or mission,
or simply unnecessary. Nevertheless, the fact that we have the ABA Model Rules of Professional
Conduct and a Restatement of the Law Governing Lawyers, as well as uniform rules for
government lawyers practicing in federal agencies, suggests that may value in providing some
common ground for rules of professional conduct, even though that common ground leaves room
for jurisdictional variation. Thus, it is worth setting out some justifications for greater
harmonization and some possible ways it could be pursued.
There are several potential benefits to harmonization for all participants in the
administrative system and others who interact with it. For attorney practitioners, greater
harmonization of rules of professional conduct reduces problems of being subject to different,
and possibly conflicting, rules in a matter. For non-attorney practitioners, greater harmonization
could, depending on how it is implemented, increase the likelihood that they will be subject to
the same rules as attorney practitioners. For all practitioners, greater harmonization, even in how
the professional conduct rules are labeled, would provide a greater range of potentially relevant
precedent to guide their decisions or respond to allegations. It could also facilitate practicing
before multiple agencies without having to learn different rules of conduct.
Greater harmonization could also benefit the agencies and actors within those agencies.
Like practitioners, agency participants in the disciplinary system could also benefit from having
a greater range of potentially relevant precedent to guide their enforcement and adjudicatory
decisions. Harmonization could facilitate information sharing and the provision of joint agency
guidance, which would save time and cost. In addition, greater harmonization could facilitate
movement among agencies. For example, a federal statute provides that an agency that is
understaffed with ALJs can borrow ALJs selected by the Office of Personnel Management from
other agencies with consent of those agencies.268 Greater harmonization would make it easier for
ALJs who develop an expertise in agency discipline could to be used to hear disciplinary cases in
multiple agencies. Somewhat more aggressively, if agency rules were more uniform, it would be
easier to establish an independent enforcement agency that could handle agency disciplinary
cases and issue ethics opinions.
Greater harmonization could provide other benefits as well. Increased uniformity could
also help state disciplinary authorities in making decisions about referrals and reciprocal
discipline and in applying ABA Model Rules 3.4(c)269 and 8.5(b)(1).270 And greater uniformity
268

5 U.S.C. § 3344. See, e.g., In re Slavin, 2003 WL 21499867 n.1 (DOL Adm. Rev. Bd) (describing an
ALJ for HUD being temporarily detailed under this statute to assist DOL in a whistleblower case).
269
ABA Model Rule 3.4(c) makes it an ethical violation for a lawyer to “knowingly disobey an obligation
under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.” An

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could also benefit the public more generally. If harmonization facilitates the ability of both
attorney and non-attorney representatives to move with greater ease across agencies, that could
reduce the cost of representation. If harmonization reduces costs to the agencies, that could also
benefit the public through better agency service by redirecting agency expenditures in ways that
better serve the public.
Harmonization can take several possible forms. The most minimal form of harmonization
would be harmonization of style: rules could have similar labels and use similar language. For
example, encouraging all agencies to refer to their disciplinary rules as “professional conduct
rules,” or something similar, would make the rules of different agencies easier to find and
compare. Another form of harmonization would be harmonization of rules within an agency.
Although most agencies have uniform rules within the agency, USDA does not. Another
approach would be harmonization among agencies in a similar practice or subject area, as the
financial agencies have done to some degree with their Uniform Rules of Practice and Procedure.
Yet another approach would try to increase harmonization among agencies performing similar
adjudicatory functions, such as applications for government benefits or regulatory enforcement
actions.
Agencies could also attempt to harmonize the content of their rules in various ways. The
eleven most common topics among the interviewed agencies discussed above could be a good
starting point for agencies to start thinking about greater harmonization of their professional
practice rules. At the most aggressive end of the spectrum would be harmonization of all agency
rules with the ABA Model Rules, with variation as needed to deal with agency-specific issues,
similar to the approach USPTO has taken.

agency acting in an adjudicatory capacity is a “tribunal” under Model Rule 1.0(m).
270
ABA Model Rule 8.5(b)(1) states that when a state disciplinary authority acts, the rules of professional
conduct the disciplinary authority applies to “conduct in connection with a matter pending before a tribunal” are “the
rules of the jurisdiction sits, unless the rules of the tribunal provide otherwise.” As noted in the previous footnote, an
agency acting in an adjudicatory capacity is a “tribunal” under Model Rule 1.0(m) and it will often have its own
rules of professional conduct rather than adopt the ethics rules of the jurisdiction in which the tribunal sits. See
Phila. Eth. Op. 96-12 n.3 (1996) (stating that “Rule 8.5 and its comments … make it clear that when the conduct is
in connection with a proceeding in an agency, it is the agency’s rules that apply”).

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APPENDIX
The tables below list the standards of conduct topics most commonly addressed by agencies
regulating representative conduct (ten or more agencies). The relevant corresponding provision
from the ABA Model Rules of Professional Conduct is also provided for each topic (if one
exists), but this does not necessarily mean that the agency provisions use the same language or
cover the same ground as the corresponding Model Rules.

Table 1. Communication (Model Rule 1.4)
Agency
Executive Office of Immigration Review,
Department of Justice (EOIR)
Department of Homeland Security (DHS)
(formerly Immigration & Naturalization
Services)
Federal Reserve Board (FRB)
Social Security Administration (SSA)
Bureau of Alcohol Tobacco & Firearms
(BATF)
Internal Revenue Service (IRS, Circular 230)
Judge Advocate General (JAG, Navy)
US Patent & Trademark Office (USPTO)
Veterans Affairs (VA)
Surface Transportation Board (STB, formerly
Interstate Commerce Commission)

Regulation
8 C.F.R. § 1003.102(r)
8 C.F.R. § 1003.102(r)
12 C.F.R. § 263.91
20 C.F.R. § 404.1740(b)(3)(v)
31 C.F.R. §§ 8.34, 8.51
31 C.F.R. §§ 10.21, 10.33(a)(3), 10.34(c)
32 C.F.R. § 776.23
37 C.F.R. § 11.104
38 C.F.R. § 14.632(c)(8)
49 C.F.R. § 1103.27(g)

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Table 2. Concurrent Conflicts (Model Rule 1.7)
Agency
Regulation
Defense Nuclear Facility Safety Board
10 C.F.R. § 1708.110
(DNFSB)
Office of Comptroller of the Currency (OCC) 12 C.F.R. § 109.8, 19.8
Federal Reserve Board (FRB)
12 C.F.R. § 263.8
Federal Deposit Insurance Corporation
12 C.F.R. §§ 308.8, 308.148(d)
(FDIC)
National Credit Union Administration
12 C.F.R. § 747.8
(NCUA)
Bureau of Consumer Financial Protection
12 C.F.R. § 1081.109
(BCFP)
Federal Housing Finance Agency (FHFA)
12 C.F.R. § 1209.73
Federal Energy Regulatory Commission
18 C.F.R. § 1b.16(b)
(FERC)
Bureau of Alcohol Tobacco & Firearms
31 C.F.R. § 8.40
(BATF)
Internal Revenue Service (IRS, Circular 230) 31 C.F.R. § 10.29
Office of Foreign Asset Control (OFAC)
31 C.F.R. § 501.704(d)
Judge Advocate General (JAG, Navy)
32 C.F.R. § 776.26
US Patent & Trademark Off (USPTO)
37 C.F.R. § 11.107
Surface Transportation Board (STB, formerly
49 C.F.R. § 1103.16
ICC)

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Table 3. Frivolous Claims (Model Rule 3.1)
Agency
US Department of Agriculture (USDA)
Executive Office of Immigration Review,
Department of Justice (EOIR)
Department of Homeland Security (DHS)
(formerly Immigration & Naturalization
Services)
Office of Comptroller of the Currency (OCC)
Federal Reserve Board (FRB)
Federal Deposit Insurance Corporation
(FDIC)
National Credit Union Administration
(NCUA)
Bureau of Consumer Financial Protection
(BCFP)
Federal Housing Finance Agency (FHFA)
Small Business Administration (SBA)
US International Trade Commission (ITC)
International Trade Administration (ITA)
Department of Labor (DOL)
Bureau of Alcohol Tobacco & Firearms
(BATF)
Internal Revenue Service (IRS, Circular 230)
Judge Advocate General (JAG, Navy)
US Patent & Trademark Office (USPTO)
Veterans Affairs (VA)
Environmental Protection Agency (EPA)
Department of the Interior (DOI)
Surface Transportation Board (STB, formerly
Interstate Commerce Commission)

Regulation
7 C.F.R. § 1.303(a)
8 C.F.R. § 1003.102(j) & (u)
8 C.F.R. § 1003.102(j) & (u)
12 C.F.R. §§ 19.7, 109.7
12 C.F.R. § 263.7
12 C.F.R. § 308.7
12 C.F.R. § 747.7
12 C.F.R. § 1081.108
12 C.F.R. § 1209.13
13 C.F.R. § 134.209
19 C.F.R. § 210.4(c) & (d)(2)
19 C.F.R. § 351.303(g)
29 C.F.R. § 18.35
31 C.F.R. § 8.33
31 C.F.R. § 10.34(b)(1) & (b)(2)(ii)
32 C.F.R. § 776.40
37 C.F.R. § 11.301
38 C.F.R. § 14.633(c)(4)
40 C.F.R. § 27.3(a)
43 C.F.R. § 1.5(d)
49 C.F.R. § 1103.30(a)

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Table 4. Delay (Model Rule 3.2)
Agency
Department of Agriculture (USDA)
Executive Office of Immigration Review,
Department of Justice (EOIR)
Department of Homeland Security (DHS)
(formerly Immigration & Naturalization
Services)
Federal Deposit Insurance Corporation
(FDIC)
Small Business Administration (SBA)
Department of Transportation (DOT,
Aviation)
Consumer Product Safety Commission
(CPSC)
US International Trade Commission (ITC)
Social Security Administration (SSA)
Department of Justice (DOJ)
Department of Labor (DOL)
Bureau of Alcohol Tobacco & Firearms
(BATF)
Internal Revenue Service (IRS, Circular 230)
Judge Advocate General (JAG, Navy)
US Patent & Trademark Office (USPTO)
Veterans Affairs (VA)
National Highway Traffic Safety
Administration (NHTSA)

Regulation
7 C.F.R. § 1.328(a)(2)
8 C.F.R. § 1003.102(l)
8 C.F.R. § 1003.102(l)
12 C.F.R. § 308.108(a)(4)
13 C.F.R. § 134.219(a)(3)
14 C.F.R. § 300.6(b)
16 C.F.R. § 1025.66(b)
19 C.F.R. § 210.2
20 C.F.R. § 404.1740(c)(4)
28 C.F.R. § 76.31(b)
29 C.F.R. §§ 18.22(c) & (d)(3); 18.87(b)
31 C.F.R. § 8.32
31 C.F.R. § 10.23
32 C.F.R. § 776.41
37 C.F.R. § 11.302
38 C.F.R. § 14.632(c)(7)
49 C.F.R. § 511.76

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Table 5. False Statements, Evidence (Model Rule 3.3(a)(1), (3))
Agency
Regulation
Executive Office of Immigration Review,
8 C.F.R. § 1003.102(c)
Department of Justice (EOIR)
Department of Homeland Security (DHS)
(formerly Immigration & Naturalization
8 C.F.R. § 1003.102(c)
Services)
Department of Energy (DOE)
10 C.F.R. § 1003.3(b)(1)-(2)
Small Business Administration (SBA)
13 C.F.R. § 134.219(a)(4)
Department of Transportation (DOT,
14 C.F.R. § 300.6(b)
Aviation)
20 C.F.R. § 404.1740(a)(2), (b)(6), (c)(3)
Social Security Administration (SSA)
& (c)(7)(ii)(B)
Department of Justice (DOJ)
28 C.F.R. § 76.31(b)
Department of Labor (DOL)
29 C.F.R. § 18.22(d)(2)
Bureau of Alcohol, Tobacco & Firearms
31 C.F.R. § 8.52(b)
(BATF)
Internal Revenue Service (IRS, Circular 230) 31 C.F.R. § 10.51(a)(4)
Veterans Affairs (VA)
38 C.F.R. § 14.632(a)(2); 633(c)(2)
National Highway Traffic Safety
49 C.F.R. § 511.76
Administration (NHTSA)
Surface Transportation Board (STB, formerly
49 C.F.R. § 1103.27(b) & (c)
Interstate Commerce Commission)

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Table 6. Obey Rules of Tribunal (Model Rule 3.4(c))
Agency
Regulation
Department of Agriculture (USDA)
7 C.F.R. § 1.328(a)(1)
Executive Office of Immigration Review,
8 C.F.R. § 1003.102(t)
Department of Justice (EOIR)
Department of Homeland Security (DHS)
(formerly Immigration & Naturalization
8 C.F.R. § 1003.102(t)
Services)
Federal Reserve Board (FRB)
12 C.F.R. §§ 263.91, 263.94(h)
Federal Deposit Insurance Corporation
12 C.F.R. § 308.108(a)(3)
(FDIC)
Federal Housing Finance Agency (FHFA)
12 C.F.R. § 1209.74(a)(4)
Small Business Administration (SBA)
13 C.F.R. § 134.219(a)(2)
Commodity Futures Trading Commission
17 C.F.R. § 14.4
(CFTC)
Securities & Exchange Commission (SEC)
17 C.F.R. § 201.102(e)(1)(iii)
Social Security Administration (SSA)
20 C.F.R. § 404.1740(a)(2) & (c)(9)
Department of Labor (DOL)
29 C.F.R. § 18.23(a)(1)(iii)
Bureau of Alcohol, Tobacco & Firearms
31 C.F.R. §§ 8.51, 8.52(k)
(BATF)
Internal Revenue Service (IRS, Circular 230) 31 C.F.R. § 10.34(b)(2)(iii)
Judge Advocate General (JAG, Navy)
32 C.F.R. § 776.42(a)(1)(v)
Environmental Protection Agency (EPA)
40 C.F.R. § 27.29(a)(1)
Civilian Board of Contract Appeals (CBCA)
48 C.F.R. § 6101.35(a)
Surface Transportation Board (STB, formerly
49 C.F.R. § 1103.27(f)
Interstate Commerce Commission)

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Table 7. Influencing Judge or Official (Model Rule 3.5(a))
Agency
Regulation
Executive Office of Immigration Review,
8 C.F.R. § 1003.102(b)
Department of Justice (EOIR)
Department of Homeland Security (DHS)
(formerly Immigration & Naturalization
8 C.F.R. § 1003.102(b)
Services)
Federal Reserve Board (FRB)
12 C.F.R. § 263.94(c)
Department of Transportation (DOT,
14 C.F.R. § 300.5(a)
Aviation)
Social Security Administration (SSA)
20 C.F.R. § 404.1740(c)(6)
Department of Labor (DOL)
29 C.F.R. § 18.22(d)(1)
Bureau of Alcohol, Tobacco & Firearms
31 C.F.R. § 8.52(f)
(BATF)
Judge Advocate General (JAG, Navy)
32 C.F.R. § 776.44(a)(1)
Veterans Affairs (VA)
38 C.F.R. § 18b.91
Surface Transportation Board (STB, formerly
49 C.F.R. § 1103.13, 15
Interstate Commerce Commission)

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Table 8. Ex Parte Communication (Model Rule 3.5(b))
Agency
Regulation
Government Accounting Office (GAO)
4 C.F.R. §§ 22.27, 28.147-8
7 C.F.R. §§ 1.151, 1.316, 110.8(n),
US Department of Agriculture (USDA)
15.68
Nuclear Regulatory Commission (NRC)
10 C.F.R. § 2.347
Office Comptroller of the Currency (OCC)
12 C.F.R. §§ 19.9, 109.9
Federal Reserve Board (FRB)
12 C.F.R. § 263.9
Federal Deposit Insurance Corporation (FDIC)
12 C.F.R. § 308.9
Farm Credit Administration (FCA)
12 C.F.R. § 622.7(j)
National Credit Union Administration (NCUA)
12 C.F.R. § 747.9
Bureau of Consumer Financial Protection (BCFP)
12 C.F.R. § 1081.110
Federal Housing Finance Agency (FHFA)
12 C.F.R. § 1209.14
Small Business Administration (SBA)
13 C.F.R. § 134.220
Department of Transportation (DOT, Aviation)
14 C.F.R. § 300.2(a)
Consumer Product Safety Commission (CPSC)
16 C.F.R. § 1025.68
Commodity Futures Trading Commission (CFTC)
17 C.F.R. §§ 10.10(d)(2), 12.7
Securities & Exchange Commission (SEC)
17 C.F.R. § 201.114(a)
Social Security Administration (SSA)
20 C.F.R. § 404.1740(c)(7)(ii)(C)
Department of Justice (DOJ)
28 C.F.R. §§ 76.15, 76.31(b)
Department of Labor (DOL)
29 C.F.R. §§ 18.14; 18.87(b)
Occupational Safety Health Review Commission
29 C.F.R. § 2200.105(a)
(OSHRC)
Judge Advocate General (JAG, Navy)
32 C.F.R. § 776.44(a)(2)
US Patent & Trademark Office (USPTO)
37 C.F.R. § 11.305(b)
US Postal Service (USPS)
39 C.F.R. § 955.33
Environmental Protection Agency (EPA)
40 C.F.R. § 27.15
Civilian Board of Contract Appeals, General
48 C.F.R. § 6101.35(b)
Services Administration (CBCA)
National Highway Traffic Safety Administration,
49 C.F.R. § 511.78(g)
Department of Transportation (NHTSA)
National Transportation Safety Board (NTSB)
49 C.F.R. §§ 821.61(b)(1), 821.63(b)
Surface Transportation Board (STB) (formerly
49 C.F.R. § 1103.14
Interstate Commerce Commission)

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Table 9. Disruptive Conduct (Model Rule 3.5(d))
Agency
US Department of Agriculture (USDA)
Executive Office of Immigration Review, Department
of Justice (EOIR)
Department of Homeland Security (DHS) (formerly
Immigration & Naturalization Services)
Nuclear Regulatory Commission (NRC)
Department of Energy (DOE)
Defense Nuclear Facilities Safety Board (DNFSB)
Office of Comptroller of the Currency (OCC)
Federal Reserve Board (FRB)
Federal Deposit Insurance Corporation (FDIC)
Farm Credit Administration (FCA)
National Credit Union Administration (NCUA)
Federal Housing Finance Agency (FHFA)
Small Business Administration (SBA)
Department of Transportation (DOT, Aviation)
Federal Trade Commission (FTC)
Consumer Product Safety Commission (CPSC)
Commodity Futures Trading Commission (CFTC)
Federal Energy Regulatory Commission (FERC)
Social Security Administration (SSA)
Department of Justice (DOJ)
Department of Labor (DOL)
Bureau of Alcohol Tobacco & Firearms (BATF)
Judge Advocate General (JAG, Navy)
Veterans Affairs (VA)
Chemical Safety & Hazard Investigation Board
(CSHIB)
Foreign Claims Settlement Commission, Department of
Justice (FCSC)
Civilian Board of Contract Appeals, General Services
Administration (CBCA)
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Regulation
7 C.F.R. §§ 1.328(a)(3),
1.141(d), 110.8(h)(4)
8 C.F.R. § 1003.102(g)
8 C.F.R. § 1003.102(g)
10 C.F.R. § 2.314(a) & (c)(1)
10 C.F.R. § 1003.3(b)(4)
10 C.F.R. § 1708.112(b)(3) & (c)
12 C.F.R. §§ 19.6(b), 109.6(b)
12 C.F.R. § 263.6(b)
12 C.F.R. § 108(a)(1) & (4),
308.6(b)
12 C.F.R. § 622.3(b)
12 C.F.R. § 747.6(b)
12 C.F.R. § 1209.74(a)(1)(2)
13 C.F.R. § 134.219(a)(5)
14 C.F.R. § 300.5(b) & 6(c)
16 C.F.R. § 4.1(e)(1)(i)(C)
16 C.F.R. § 1025.66(b)
17 C.F.R. § 10.11(b)(1)
18 C.F.R. § 385.2102(b)
20 C.F.R. § 404.1740(c)(7)(ii)
28 C.F.R. § 76.31(b)
29 C.F.R. §§ 18.22[c], 18.87(b)
31 C.F.R. § 8.52(j)
32 C.F.R. § 776.44(a)(3)
38 C.F.R. §§ 18b.15, 18b.90
40 C.F.R. §§ 1610.1(a)(5),
1610.2(a)
45 C.F.R. § 500.4(b)
48 C.F.R. § 6101.35(c)

Table 10. False Statements to Third Parties (Model Rule 4.1)
Agency
Regulation
Executive Office of Immigration Review,
8 C.F.R. § 1003.102(i)
Department of Justice (EOIR)
Department of Homeland Security (DHS)
(formerly Immigration & Naturalization
8 C.F.R. § 1003.102(i)
Services)
Office of Comptroller of the Currency (OCC) 12 C.F.R. § 163.180(b)
Federal Reserve Board (FRB)
12 C.F.R. § 263.94(b)
Federal Deposit Insurance Corporation
12 C.F.R. § 390.355(b)
(FDIC)
Federal Trade Commission (FTC)
16 C.F.R. § 4.1(e)(1)(i)(D)
Department of Labor (DOL)
29 C.F.R. § 18.22(d)(1)
Bureau of Alcohol, Tobacco & Firearms
31 C.F.R. § 8.51
(BATF)
Judge Advocate General (JAG, Navy)
32 C.F.R. § 776.49
US Patent & Trademark Office (USPTO)
37 C.F.R. § 11.401
Environmental Protection Agency (EPA)
40 C.F.R. § 27.3(b)

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Table 11. Obstruction of Justice (Model Rule 8.4(d))
Agency
Regulation
Executive Office of Immigration Review,
8 C.F.R. § 1003.102(n)
Department of Justice (EOIR)
Department of Homeland Security (DHS)
(formerly Immigration & Naturalization
8 C.F.R. § 1003.102(n)
Services)
Defense Nuclear Facilities Safety Board
10 C.F.R. § 1708.112(b)(3), (c), 109(h) &
(DNFSB)
(i)
Office of Comptroller of the Currency (OCC) 12 C.F.R. § 19.183(e)
Federal Deposit Insurance Corporation
12 C.F.R. §§ 108(a)(2), 109(a)(iv),
(FDIC)
308.6(b)
Farm Credit Administration (FCA)
12 C.F.R. §§ 622.3(b), 622.105(d)(2)
National Credit Union Administration
12 C.F.R. § 747.807(d)
(NCUA)
Bureau of Consumer Financial Protection
12 C.F.R. § 1081.107(b)
(BCFP)
Federal Trade Commission (FTC)
16 C.F.R. § 4.1(e)(1)(i)(C)
Commodity Futures Trading Commission
17 C.F.R. § 11.7(c)(2)
(CFTC)
Federal Energy Regulatory Commission
18 C.F.R. § 1b.16(c)(4)
(FERC)
Social Security Admin (SSA)
20 C.F.R. § 404.1740(c)(7)
Department of Labor (DOL)
29 C.F.R. § 18.22(d)(4)
31 C.F.R. §§ 10.20(b), 10.33(a)(4),
Internal Revenue Service (IRS, Circular 230)
10.34(b)(2)(i)
US Patent & Trademark Office (USPTO)
37 C.F.R. § 11.804(d)
Veterans Affairs (VA)
38 C.F.R. § 14.632(c)(9)
Chemical Safety & Hazard Investigation
40 C.F.R. § 1610.1(a)(5)
Board (CSHIB)
Environmental Protection Agency (EPA)
40 C.F.R. § 27.29(a)(3)
Surface Transportation Board (STB, formerly
49 C.F.R. § 1103.25(b)
Interstate Commerce Commission)

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Table 12. Incorporation of State / Agency Rules
Agency
Government Accounting Office (GAO)
US Department of Agriculture (USDA)
Department of Homeland Sec (DHS) (formerly
Immigration & Naturalization Services)
Defense Nuclear Facilities Safety Board (DNFSB)
Federal Deposit Insurance Corporation (FDIC)
Bureau of Consumer Financial Protection (BCFP)
Department of Transportation (DOT, Aviation)
Federal Trade Commission (FTC)
Commodity Futures Trading Commission (CFTC)
Securities & Exchange Commission (SEC)
Federal Energy Regulatory Commission (FERC)
Drug Enforcement Administration (DEA)
Department of Justice (DOJ)
Department of Labor (DOL)
National Labor Relations Board (NLRB)
Occupational Safety Health Review Commission
(OSHRC)
Bureau of Alcohol, Tobacco & Firearms (BATF)
Judge Advocate General (JAG, Navy)
Veterans Affairs (VA)
US Postal Service (USPS)
Postal Regulatory Commission (PRC)
Department of Interior (DOI)
Foreign Claims Settlement Commission,
Department of Justice (FCSC)
Federal Communications Commission (FCC)
Civilian Board of Contract Appeals, General
Services Administration (CBCA)
Surface Transportation Board (STB, formerly
Interstate Commerce Commission)

Regulation
4 C.F.R. § 22.10(a)
7 C.F.R. §§ 1.26(b), 1.141(c), 97.157,
110.8(h)(3)
8 C.F.R. § 292.3(a)(1) (incorporating
EOIR rules)
10 C.F.R. § 1708.112(a) & (b)(2)
12 C.F.R. § 308.109(a)(1)(ii)
12 C.F.R. § 1081.107(c)(1)
14 C.F.R. §§ 300.1, 300.6(a),
300.12(a)
16 C.F.R. § 4.1(e)(1)(i)(B)
17 C.F.R. § 14.8(c)
17 C.F.R. § 201.102(e)(1)(ii)
18 C.F.R. § 385.2101(c)
21 C.F.R. § 1316.51(b)
28 C.F.R. § 68.33(c)(3)(iii)
29 C.F.R. § 18.22(c)
29 C.F.R. § 102.177(a)
29 C.F.R. § 2200.104(a)
31 C.F.R. § 8.41(b)(2)(i)
(incorporating ABA Model Rules)
32 C.F.R. § 776.19(a)(2)
38 C.F.R. § 14.632(d)
39 C.F.R. § 955.34(a) & (c)
39 C.F.R. § 3010.143(d)
43 C.F.R. § 1.6(a)
45 C.F.R. § 500.4(a)(2)
47 C.F.R. § 1.24(a)(2) & (4)
48 C.F.R. § 6101.35(a)
49 C.F.R. § 1103.11 (incorporating
rules of US courts)

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Table 13. Reciprocal Discipline
Agency
Executive Office of Immigration Review,
Department of Justice (EOIR)
Department of Homeland Security (DHS)
(formerly Immigration & Naturalization
Services)
Federal Reserve Board (FRB)
Federal Deposit Insurance Corporation
(FDIC)
Commodity Futures Trading Commission
(CFTC)
Securities & Exchange Commission (SEC)
Social Security Administration (SSA)
Department of Labor (DOL)
Bureau of Alcohol, Tobacco & Firearms
(BATF)
Judge Advocate General (JAG, Navy)
US Patent & Trademark Office (USPTO)
Veterans Affairs (VA)
Department of Interior (DOI)
Federal Communications Commission (FCC)

Regulation
8 C.F.R. §§ 1003.102(e) & (k), 1003.103
8 C.F.R. § 293(c)(4)
12 C.F.R. § 263.94(d) & (g)
12 C.F.R. § 308.109(b)(1)
17 C.F.R. § 14.6
17 C.F.R. § 201.102(e)(2)
20 C.F.R. §§ 404.1740(b)(7)-(9), 1745,
1770(a)
29 C.F.R. §§ 18.22(b)(1)(ii) & (iii),
18.23(a)(1)(i) & (ii)
31 C.F.R. § 8.52(h)
32 C.F.R. § 776.71
37 C.F.R. § 11.804(h)
38 C.F.R. §§ 14.629(b)(3) & (5),
14.633(c)(5)
43 C.F.R. § 1.6(a)
47 C.F.R. § 1.24(c)

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