Agency Practice Act

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5 U.S.C. § 500 (2012), originally enacted by Pub. L. No. 89-332, 79 Stat. 1281, Nov. 8, 1965; incorporated into the U.S. Code by Pub. L. No. 90-83, 81 Stat. 195, Sept. 11, 1967 (with minor stylistic changes); amended by Pub. L. No. 106-113, Div. B, § 1000(a)(9) [Title IV, § 4732(b)(2)], Nov. 29, 1999, 113 Stat. 1536, 1501A-583.

Overview

The Agency Practice Act provides that an attorney in good standing in any state may represent persons before federal agencies. An agency may require an attorney to file a written declaration of current qualification and to state that he is authorized to represent the particular person before the agency. Similarly, a duly qualified certified public accountant may represent persons before the Internal Revenue Service. The Agency Practice Act was intended to prohibit agency-established admission requirements for licensed attorneys and special enrollment requirements for CPAs. (Note: The Patent and Trademark Office is exempted from the Agency Practice Act.) The Agency Practice Act expressly neither grants nor denies other persons the right to practice before an agency, nor does it authorize or limit an agency’s right to discipline or disbar persons practicing before it.

In 1982, ACUS adopted a statement on discipline of attorneys practicing before federal agencies. After studying agency concerns and existing disciplinary procedures, ACUS concluded that any current problems concerning attorney discipline before federal agencies were not of such magnitude or so widespread as to require legislative action or the adoption of uniform federal standards.

Legislative History

In 1957, the Department of Justice recommended discontinuing the practice of many agencies that required attorneys to apply for agency acceptance as practitioners. Several bills were introduced in the early 1960s to abolish agency admission requirements. By 1965, few agencies retained admission requirements, and only the Treasury Department and the Patent Office objected to discontinuing them. H.R. Rep. No. 1141 (1965). Pub. L. No. 89-332 was enacted in 1965 with the passage of S. 1758.

In 1999, the Agency Practice Act was amended to substitute “Patent and Trademark Office” for “Patent Office.”

Source Note

The House report on S. 1758 is reprinted in U.S. Code Congressional and Administrative News. Professor Michael Cox’s 1982 report to ACUS discusses federal agency attorney discipline and contains an extensive bibliography.

Also relevant is section 9 (“Use of Nonattorneys”) of the Administrative Dispute Resolution Act (5 U.S.C. § 571 note).

Bibliography

Legislative History and Congressional Documents

  • S. Rep. No. 755 (1965).
  • H.R. Rep. No. 1141 (1965).

ACUS Recommendations and Other Documents

Books and Articles

  • Craig H. Allen, Attorney Ethics and Agency Practice: Representing Clients in Coast Guard Marine Casualty Investigations, 22 J. Mar. L. & Com. 225 (1991).
  • ABA, Report to the House of Delegates on Federal Agency Attorney Discipline (Aug. 1982).
  • Comm. on Governmental Processes, Report Concerning Discipline of Attorneys Practicing Before Federal Agencies (1982) (report to ACUS).
  • Michael P. Cox, Regulation of Attorneys Practicing Before Federal Agencies (1982) (report to ACUS).
  • Roberta S. Karmel, Rule 2(e)—A Reprise, 210 N.Y. L. J. 3 (1993).
  • Melanie B. Leslie, Government Officials as Attorneys and Clients: Why Privilege the Privileged?, 77 Ind. L. J. 469 (2002).
  • Nicholas M. Wenner, Comment, Determining Secondary Liability under Securities Laws: Attorney Beware!, 11 Hamline L. Rev. 61 (1988).

Agency Regulations

Statutory Provisions

Agency Practice Act

Title 5 U.S. Code

§ 500. Administrative practice; general provisions