The Laws of Agency Lawyering
The L aws of Agenc y Lawyering
George M. Cohen 0
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1. Other important aspects of lawyering in the regulatory state involve lawyers
employed by government agencies and lawyers appearing and practicing before state
government agencies. This Article does not deal with either topic.
2. See, e.g., RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS § 1 cmt. b (AM. LAW
INST. 2000) [hereinafter RESTATEMENT (THIRD)] (“Some administrative agencies, primarily
within the federal government, have also regulated lawyers practicing before the agency,
sometimes through lawyer codes adopted by the agency and specifically applicable to those
practitioners.”); Daniel R. Coquillete & Judith A. McMorrow, Zacharias’s Prophecy: The
Federalization of Legal Ethics Through Legislative, Court, and Agency Regulation, 48 SAN
DIEGO L. REV. 123 (2011).
3. This definition omits agency rules that regulate lawyers but reference no sanction.
See, e.g., 46 C.F.R. § 502.26 (2015) (stating that a lawyer practicing before the Federal
Maritime Commission must conform to the ABA Model Rules as well as agency rules, but
specifying no sanction for violation); cf. id. § 502.27(c) (stating that the Commission may
sanction nonattorneys admitted to practice before it for improper professional conduct). This
definition also omits rules that limit sanctions to those against a lawyer’s client or monetary
sanctions against the lawyer. See, e.g., 42 C.F.R. § 3.506(b) (2015) (requiring attorneys
practicing before the Public Health Service to conform to standards of conduct and ethics
required of practitioners before U.S. courts); id. § 3.530 (listing as sanctions for lawyer
misconduct sanctions against the claimant and payment of attorney’s fees); 45 C.F.R.
§ 160.530 (2015) (same for lawyers practicing before the Department of Health and Human
Commentators have long debated the authority of agencies to promulgate
and enforce these rules, as well as their desirability.4 One feature of the
regulatory landscape, however, has received less critical attention: the great
variety of agency rules governing lawyers. Although state ethics rules
exhibit a fair amount of variety, these rules are almost all based on the
American Bar Association’s (ABA) Model Rules of Professional Conduct
and generally cover the same topics in relatively similar ways. Moreover,
the “other law”5 that governs lawyers—though it may differ from and
sometimes conflict with state ethics rules—is similar enough across
jurisdictions that a Restatement of the Law Governing Lawyers is fairly
able to summarize it.6 By contrast, the federal agency rules seem to be all
over the map. Some are quite detailed; others are extremely general. Some
cover a large number of topics; others very few. Some apply only to
adjudicatory proceedings before agencies; others apply more broadly.
Some apply to lawyers only; others to any person appearing in a
representative capacity before an agency.
What accounts for this teeming variety of agency rules governing
lawyers? One obvious answer is that there is nothing to prevent it. There is
no private group like the ABA or the American Law Institute (ALI) that has
sought to bring order out of the chaos through proposed Model Rules for
Lawyers Appearing and Practicing Before Administrative Agencies. Nor
has any government entity or group of agencies taken up such a project. In
the absence of some great coordinator, it is perhaps not surprising that a
hundred flowers bloom. Agencies have different domains, different
structures, different purposes, and different histories. All these can lead to
different regulatory approaches. Still, laws sometimes do converge rather
than diverge even in the absence of coordination, as lawyers often look to
what others are doing and follow them rather than “reinvent the wheel.”
Another possibility is that there is less to the variety than first meets the
eye. The differences may be more stylistic than substantive. Alternatively,
the rules may not be enforced often enough, or in significant enough cases,
that the differences become more apparent and contested.
At the very least, the great variety of agency rules governing lawyers
raises interesting questions that are worth exploring. This Article begins
that exploration. Part I lays the groundwork by briefly examining how the
ABA Model Rules treat regulatory lawyering to raise the question of what
regulatory gaps the agency rules might be expected to fill. Part II sets forth
several possible theories of agency rule variation. Part III compares agency
rules along a number of dimensions, examines some similarities and
differences across agencies as well as between the agency rules and the
Model Rules, and offers speculations about what may be driving the
differences that exist.
4. See, e.g., Michael P. Cox, Regulation of Attorneys Practicing Before Federal
Agencies, 34 CASE W. RES. L. REV. 173 (1984).
5. E.g., MODEL RULES OF PROF’L CONDUCT r. 8.4(e) (AM. BAR ASS’N 2015).
6. See generally RESTATEMENT (THIRD), supra note 2.
I. ADMINISTRATIVE AGENCY LAWYERING
UNDER THE ABA MODEL RULES
Before examining the ethics rules promulgated by the agencies, it will be
helpful to see how the ABA’s Model Rules regulate lawyers who practice
before government agencies. They do so in three ways. First, the Model
Rules include a small number of rules specifically applicable to lawyers
practicing before agencies. Second, the Model Rules impose different
obligations on lawyers practicing before agencies depending on which
governmental function the agency is engaged in. Finally, the Model Rules
in some cases incorporate the requirements of agency ethics rules.
A. Specific Rules on Agency Lawyering
The ABA Model Rules are constructed on the general presumption that
all lawyers should be governed by the same ethics rules.7 Thus, lawyers
who practice before administrative agencies8 are generally bound by the
same ethics rules as other lawyers. Nevertheless, the Model Rules deviate
from this principle in several respects. In the first place, a few scattered
rules impose additional obligations on lawyers practicing before
administrative agencies, though these rules involve relatively minor aspects
of agency practice.9
Most notably, Rule 3.9 requires a lawyer “representing a client before a
legislative body or administrative agency in a nonadjudicative proceeding”
to “disclose that the appearance is in a representative capacity.”10 This
Rule aims to prevent lawyers from misleading an agency into thinking that
a lawyer appearing before the agency is presenting the lawyer’s own views.
7. The Preamble to the Model Rules, for example, contains provisions addressed to the
responsibilities of “a lawyer.” See, e.g., MODEL RULES OF PROF’L CONDUCT pmbl. (“Every
lawyer is responsible for observance of the Rules of Professional Conduct.”). Moreover,
most of the Model Rules apply to all lawyers, with a few exceptions and qualifications. The
rules do temper the universalist approach somewhat by differentiating a lawyer’s obligations
when performing different roles, such as “Counselor” or “Advocate,” which I discuss further
below. See generally David Wilkins, Making Context Count: Regulating Lawyers After
Kaye Scholer, 66 S. CAL. L. REV. 1145, 1152–54 (1993). In addition, Model Rule 1.13
applies to lawyers representing entity clients, and Model Rule 3.8 applies to prosecutors.
8. The Model Rules somewhat unhelpfully use the terms “administrative agency,”
“government agency,” and “governmental entity” interchangeably, as does the Restatement,
which also occasionally uses the term “regulatory agency.”
9. A few comments reference practice before government agencies as simply an
example of how a general rule applies in that particular context. See MODEL RULES OF
PROF’L CONDUCT r. 2.3 cmt. 1 (noting that a government agency may request that a lawyer
provide an opinion); id. r. 4.2 cmt. 4 (noting that a lawyer representing a client in a
controversy before a government agency may communicate with nonlawyer representatives
of the agency on a separate matter).
10. Id. r. 3.9. Rule 4.3 imposes a similar obligation on a lawyer dealing with an
unrepresented person who “misunderstands the lawyer’s role in the matter” to “make
reasonable efforts to correct the misunderstanding.” Id. r. 4.3. Rule 3.9 goes beyond the
Rule 4.3 duty, because administrative agencies are often represented by counsel when they
act in “nonadjudicative proceedings.” Id. r. 3.9. In adjudicative proceedings, the issue would
not generally arise because lawyers usually enter an appearance on behalf of an identified
Note, however, that (somewhat surprisingly) under the literal terms of this
Rule, the lawyer need not identify the client.11 In the parlance of (private)
agency law, a lawyer cannot act on behalf of an undisclosed principal, but
can act on behalf of an unidentified principal.12
Two other rules that reference agency practice are Rule 8.4(e) and Rule
7.5(a). Rule 8.4(e) prohibits a lawyer from “stat[ing] or imply[ing] an
ability to influence improperly a government agency or official or to
achieve results by means that violate the Rules of Professional Conduct or
other law.”13 Rule 7.5(a) prohibits a lawyer in private practice from using a
“trade name” that “impl[ies] a connection with a government agency.”14
These rules aim to prevent the lawyer from misleading the client about what
a lawyer can legitimately do to further the client’s interests before the
B. The Tripartite Division of Agency Conduct
A second way the Model Rules address lawyers who practice before
government agencies is by making some ethics rules inapplicable to certain
types of agency practice. The Model Rules in effect establish a tripartite
structure for lawyers practicing before government agencies, depending
roughly on whether the agency is acting in a judicial, legislative, or
executive capacity. When an agency “act[s] in an adjudicative capacity,” it
is a “tribunal” under Rule 1.0(m).15 That label matters because the Model
Rules include a number of provisions specifically applicable to a lawyer
practicing before a “tribunal,” many—but not all—of which are found in
the group of rules falling under the heading captioned “Advocate” (Rules
11. The parallel rule in the Restatement, section 104(
), states that a “lawyer
representing a client before a legislature or administrative agency . . . must disclose that the
appearance is in a representative capacity and not misrepresent the capacity in which the
lawyer appears.” RESTATEMENT (THIRD), supra note 2, § 104(
). Section 104(
) does not
limit its application to administrative agencies acting in a “nonadjudicative capacity,” as
Rule 3.9 does, but applies to all lawyers who represent a client “before” an administrative
agency. Id. It is not clear what the prohibition on “misrepresent[ing] the capacity in which
the lawyer appears,” which is not included in Rule 3.9, adds to the requirement that the
appearance in a representative capacity must be disclosed. Id.
12. Id. § 104(2).
13. MODEL RULES OF PROF’L CONDUCT r. 8.4(e).
14. Id. r. 7.5(a).
15. Id. r. 1.0(m) (stating that an agency will be considered a “tribunal” if “a neutral
official, after the presentation of evidence or legal argument by a party or parties, will render
a binding legal judgment directly affecting a party’s interest in a particular matter”).
16. See id. rr. 3.3, 3.4(c), 3.5 (all expressly referring to a “tribunal”). Other rules
specifically mentioning tribunals include rules on overseeing conflict screens, id. rr.
), withdrawal, id. r. 1.16(c), multijurisdictional practice, id. r.
5.5(c)(2) & cmts. 9–11, and choice of law, id. r. 8.5(b)(
). Some rules that mention tribunals
would generally not be applicable to lawyers practicing before an administrative agency for
other reasons. See id. r. 1.7(b)(3) (conflict of interest if lawyer represents both sides in same
case); id. r. 3.8(d) (prosecutors in criminal cases); id. r. 6.2(a) (appointment of lawyer by
tribunal). A number of comments also make reference to a tribunal. See id. r. 1.1 cmt. 7; id.
r. 1.2 cmt. 2; id. r. 1.6 cmts. 15, 16; id. r. 1.14 cmt. 10; id. r. 1.17 cmt. 12; id. r. 2.4 cmt. 5; id.
r. 3.7 cmt. 3; id. r. 5.3 cmt. 4.
When the agency acts in a legislative (rulemaking) capacity, lawyers
practicing before that agency are bound by some, but not all, of the rules
applicable to advocates practicing before tribunals.17 Rule 3.9 identifies
specific rules that a lawyer in this situation must follow: Rules 3.3(a)
through (c) (Candor Toward the Tribunal), 3.4(a) through (c) (Fairness to
Opposing Party and Counsel), and 3.5 (Impartiality and Decorum of the
Tribunal).18 The negative implication is that these lawyers are not bound
by the other rules in the “Advocate” group. In addition, these lawyers are
not bound by any rules outside of the “Advocate” group that apply to
lawyers practicing before “tribunals.”
Finally, lawyers representing private clients who engage with an agency
acting in what we might call its executive capacity have fewer obligations
still. Comment 3 to Rule 3.9 defines these contexts to include representing
a client in a “negotiation or other bilateral transaction with a governmental
agency,” “application for a license or other privilege,” “compliance with
generally applicable reporting requirements,” and “an investigation or
examination of the client’s affairs conducted by government investigators
or examiners.”19 In all these situations, Comment 3 says that the rules that
apply are the rules governing “transactions with persons other than
clients,”20 comprising Rules 4.1 (Truthfulness in Statements to Others) to
4.4 (Respect for the Rights of Third Persons) and, thus, apparently, not any
of the “Advocate” rules (Rules 3.1 to 3.9) or rules governing practice before
a “tribunal.” From the perspective of the Model Rules, then, the primary
issue for lawyers practicing before agencies is how many of the “advocate”
and “tribunal” rules apply to them: all, some, or none.21
The tripartite approach of the Model Rules is interesting mostly because
of the recognition and treatment of the last category: lawyers practicing
before agencies acting in their executive capacity. The activity that
comprises this category is perhaps the most common work that lawyers who
17. Comment 1 states that the type of “nonadjudicative proceeding” Rule 3.9 has in
mind are proceedings in which the agency is “acting in a rule-making or policy-making
capacity,” or is holding an “official hearing or meeting . . . to which the lawyer or the
lawyer’s client is presenting evidence or argument.” Id. r. 3.9 cmts. 1, 3.
18. Id. r. 3.9.
19. Id. r. 3.9 cmt. 3. The limitation in Comment 3 derives from ABA Opinion 93-375, a
product of the savings and loan crisis. That opinion found that a lawyer representing a client
subject to a routine bank examination by a government agency was not governed by Model
Rule 3.9 because the agency was not a “tribunal,” a term that has since been defined in
Model Rule 1.0(m) as discussed above. See supra note 15. That conclusion mattered
because the mandatory disclosure obligations in Model Rule 3.3 apply only to lawyers
practicing before a tribunal. ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op.
20. See MODEL RULES OF PROF’L CONDUCT rr. 4.1–.4.
21. Restatement Third on the Law Governing Lawyers, section 104(3), does not adopt
the tripartite structure of the Model Rules, but rather draws a distinction between “an
adjudicative proceeding before a government agency or involving such an agency as a
participant,” in which the lawyer “has the legal rights and responsibilities of an advocate in a
proceeding before a judicial tribunal,” and “other types of proceedings and matters,” in
which the lawyer “has the legal rights and responsibilities applicable in the lawyer’s dealings
with a private person.” RESTATEMENT (THIRD), supra note 2, § 104(3).
practice before agencies do, yet the Model Rules address this work only
indirectly, ambiguously, and in a comment.22 Moreover, the implication of
the Model Rules is that lawyers practicing before administrative agencies
acting in an adjudicative capacity owe more ethical duties than lawyers who
practice before administrative agencies acting in an executive capacity, who
tend to act in a more transactional or advisory role.
In the two most well-known events involving lawyers practicing before
agencies in the last thirty years—the Kaye Scholer case23 and the SEC’s
Sarbanes-Oxley rules24 promulgated in the wake of the Enron scandal—
some in the corporate bar took what seems like the opposite perspective:
that lawyers practicing before an administrative agency acting in its
executive capacity should be viewed as advocates, who have fewer ethical
restrictions, or more ethical leeway, than lawyers acting as advisers or
counselors.25 We allow lawyers to make aggressive and creative arguments
in litigation, knowing that there will be a lawyer on the other side to make
counterarguments.26 Lawyers acting as advisors have less leeway in
making creative arguments to avoid complying with the law.27 The
corporate bar’s position has thus seemed to want to have it both ways:
lawyers who practice before agencies can view themselves as advocates for
the purpose of interpreting disclosure requirements narrowly, but can view
themselves as nonadvocates for the purpose of avoiding duties to the court.
The tripartite division of agency practice in the Model Rules leaves a
number of questions unresolved. First, do all the Advocate Rules apply to
lawyers practicing before an agency acting in an adjudicatory capacity,
even if a particular rule does not reference a “tribunal”? The Advocate
22. MODEL RULES OF PROF’L CONDUCT r. 3.9 cmt. 3.
23. See GEOFFREY C. HAZARD, SUSAN P. KONIAK, ROGER C. CRAMTON, GEORGE M.
COHEN & W. BRADLEY WENDEL, THE LAW AND ETHICS OF LAWYERING 161–63 (5th ed.
24. See, e.g., 17 C.F.R. § 205.1–.7 (2015) (Standards of Professional Conduct for
Attorneys Appearing and Practicing Before the Commission in the Representation of an
25. See, e.g., WILLIAM H. SIMON, THE PRACTICE OF JUSTICE 166 (1998) (stating that the
defenders of Kaye Scholer’s actions representing Charles Keating’s savings and loan before
the bank agency “framed the matter as litigation, and argued that in that context counsel had
no duty to avoid misleadingly incomplete (as opposed to specifically false) representations,”
whereas the agency “framed the matter as bank regulation and argued that in that context a
higher duty of candor was appropriate”); Wilkins, supra note 7, at 1183–85; Susan P.
Koniak, When the Hurlyburly’s Done: The Bar’s Struggle with the SEC, 103 COLUM. L.
REV. 1236, 1276–77 (2003) (criticizing SEC rule allowing a lawyer not to report up evidence
of wrongdoing to a company’s board if the board has retained a lawyer who “may” assert a
“colorable defense” as applying an inappropriate advocacy standard to a lawyer in a
26. See generally Roger C. Cramton, George M. Cohen & Susan P. Koniak, Legal and
Ethical Duties of Lawyers After Sarbanes-Oxley, 49 VILL. L. REV. 725, 769–71 (2004).
27. See, e.g., MODEL CODE OF PROF’L RESPONSIBILITY EC 7-3 (AM. BAR ASS’N 1980)
(describing the different lawyer roles of advocate and adviser and stating that “[w]hile
serving as an advocate, a lawyer should resolve in favor of his client doubts as to the bounds
of the law,” but “[i]n service the client as an adviser, a lawyer . . . should give his
professional opinion as to what the ultimate decisions of the courts would likely be as to the
Rules use different terms (not defined in Model Rule 1.0) for the kind of
activity that generally is performed before a tribunal. Some of the
Advocate Rules refer to a “proceeding,”28 a term that seems broad enough
to encompass actions before an administrative agency acting in an
adjudicative capacity. Other Advocate Rules refer to “litigation.”29 Still
others refer to “trial.”30 It is not clear whether administrative agency
adjudications are “litigation” or “trials” within the meaning of these rules.31
Second, and relatedly, do the Model Rules, as Comment 3 to Model Rule
3.9 suggests, really make none of the “Lawyer As Advocate” Rules
applicable to lawyers practicing before an agency acting in its executive
capacity? For example, Rule 3.6(a) (Trial Publicity) expressly refers to a
lawyer participating in an “investigation” in addition to, and apparently
distinct from, “litigation.”32 In addition, Rule 3.4 (Fairness to Opposing
Party and Counsel) includes prohibitions on destroying33 and falsifying34
evidence, which one might think ought to apply to agency investigations.
People certainly raised that question in light of the Arthur Andersen case,35
in which an in-house lawyer allegedly encouraged Arthur Andersen’s
destruction of Enron documents in the face of a likely SEC investigation,
though no disciplinary or other action was ever brought against the
Perhaps the ABA’s apparently more limited view of the responsibilities
of lawyers appearing before an agency in its executive capacity is much ado
about nothing. Conduct not covered by the advocacy rules or the tribunal
28. See MODEL RULES OF PROF’L CONDUCT rr. 3.1, 3.3(b), 3.3(d), 3.5(b), 3.6(a).
29. See id. rr. 3.2, 3.6(a).
30. See id. rr. 3.4(e), 3.7. The Restatement takes the position that the advocate-witness
restrictions of Model Rule 3.7 apply to lawyers practicing before administrative agencies
acting in their adjudicative capacity. See RESTATEMENT (THIRD), supra note 2, § 108 cmt. c
(“The advocate-witness rule applies in all contested proceedings in which a lawyer appears
as both advocate and witness, including . . . hearings before administrative agencies.”).
31. The USPTO rules clear up a number of these ambiguities by substituting “tribunal”
for one of the other terms used by the Model Rules. See 37 C.F.R. § 11.302 (2015)
(replacing “litigation” from Model Rule 3.2); id. § 11.303(b) (replacing “adjudicative
proceeding” from Model Rule 3.3(e)); id. § 11.304(e) (replacing “trial” from Model Rule
3.4(b)); id. § 11.307 (replacing “trial” from Model Rule 3.7).
32. MODEL RULES OF PROF’L CONDUCT r. 3.6(a) (“A lawyer who is participating or has
participated in the investigation or litigation of a matter shall not make an extrajudicial
statement that the lawyer knows or reasonably should know will be disseminated by means
of public communication and will have a substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter.”). Statements in some agency investigations could
arguably fall under this rule.
33. Id. r. 3.4(a) (“A lawyer shall not . . . unlawfully obstruct another party’s access to
evidence or unlawfully alter, destroy or conceal a document or other material having
potential evidentiary value. A lawyer shall not counsel or assist another person to do any
34. Id. r. 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.”).
35. Arthur Andersen, LLP v. United States, 544 U.S. 696 (2005).
36. United States v. Arthur Andersen, LLP, 374 F.3d 281, 286–87 (5th Cir. 2004), rev’d,
544 U.S. 696 (2005).
rules may be covered by other rules.37 For example, consider a simple
situation in which a lawyer knowingly submits false information to an
agency on behalf of a client. If the agency is acting as a “tribunal,” this
conduct violates several of the Advocate Rules.38 If the agency is not
acting as a “tribunal,” the same conduct could nevertheless violate several
other rules applicable to all lawyers.39 The difference is that the Advocate
Rules impose more specific obligations than the comparable rules for
nonadvocates. The fact that the drafters of the Model Rules created more
specific duties for advocates suggests that the more general rules applicable
to other lawyers do not include all those duties The Model Rules
themselves, however, give little guidance on this issue.
Another example in which the tripartite division might not have much
practical effect is the rule on multijurisdictional practice.40 Rule 5.5(c)
allows lawyers licensed in one state to practice before a tribunal in a
different state under certain conditions.41 For lawyers who practice before
federal agencies, however, Rule 5.5(d)(2) allows all lawyers who practice
before federal agencies to engage in multijurisdictional practice so long as
some federal law or rule allows them to do so.42
C. Incorporation of Agency Ethics Rules
Apart from specific rules addressing agency lawyering and the tripartite
division, the Model Rules impact lawyers practicing before federal agencies
in another way, directly tied to the theme of this Article. Some of the
Model Rules seem to expressly incorporate agency rules, including agency
rules governing the conduct of lawyers practicing before those agencies.
Most notably, Rule 3.4(c) states 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.”43 Because an
37. The Restatement suggests as much: “In any event, the legal duties of an advocate in
an adjudicative proceeding are not necessarily significantly different from or less exacting
than those governing a lawyer functioning in a nonlitigation capacity.” RESTATEMENT
(THIRD), supra note 2, § 104 cmt. d.
38. See MODEL RULES OF PROF’L CONDUCT r. 3.3(a)(
) (“A lawyer shall not
knowingly . . . make a false statement of fact or law to a tribunal . . . .”); id. r. 3.3(a)(3) (“A
lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false . . . .”); id. r.
3.4(b) (“A lawyer shall not . . . falsify evidence . . . .”).
39. See id. r. 1.2(d) (“A lawyer shall not . . . assist a client . . . in conduct that the lawyer
knows is criminal or fraudulent . . . .”); id. r. 4.1(a) (“In the course of representing a client a
lawyer shall not knowingly . . . make a false statement of material fact or law to a third
person . . . .”); id. r. 8.4(d) (“It is professional misconduct for a lawyer to . . . engage in
conduct that is prejudicial to the administration of justice.”).
40. Id. r. 5.5
41. Id. r. 5.5(c).
42. Id. r. 5.5(d)(2) (allowing a lawyer not licensed in a jurisdiction to provide legal
services there if the services are ones “that the lawyer is authorized by federal or other law or
rule to provide in this jurisdiction”).
43. Id. r. 3.4(c); see also RESTATEMENT (THIRD), supra note 2, § 105 (“In representing a
client in a matter before a tribunal, a lawyer must comply with applicable law, including
rules of procedure and evidence and specific tribunal rulings.”); id. § 105 cmt. b (noting that
administrative agency acting in an adjudicative capacity is a “tribunal”
under the Model Rules, a lawyer can be disciplined by the lawyer’s state
disciplinary authority under Rule 3.4(c) for violating an agency’s rules
when it acts in that capacity, even if those rules differ from the Model Rules
applicable to advocates.44 Moreover, Rule 3.4(c), via Rule 3.9, also applies
to lawyers appearing before an administrative agency acting in a
“nonadjudicative proceeding,” that is, in a legislative capacity. Thus, the
Model Rules apparently incorporate agency rules governing an agency’s
conduct in this capacity as well. On the other hand, if the lawyer practices
before an agency acting in its executive capacity, that lawyer’s violation of
the agency’s rules would not violate Rule 3.4(c) (though it could violate
other ethics rules and subject the lawyer to consequences under other
Another rule that incorporates the rules of a tribunal is Rule 1.16(c) on
withdrawal, which requires a lawyer to “comply with applicable law
requiring notice to or permission of a tribunal when terminating a
representation.”46 Thus, if an agency acting in an adjudicatory capacity has
a rule requiring notice or permission before a lawyer can withdraw (as some
do),47 a lawyer who fails to follow that rule would be subject to discipline
by the relevant state ethics authorities.
In addition, several Model Rules base their ethical obligations or
permissions on “law,” which may include agency rules. For example,
Model Rule 1.6(b)(6) permits a lawyer to “reveal information relating to the
representation of a client to the extent the lawyer reasonably believes
necessary . . . to comply with other law or a court order.”48 Comment 15 to
Rule 1.6 states that the permission may apply when a lawyer is ordered to
reveal information by a “governmental entity claiming authority pursuant to
other law to compel the disclosure.”49 Another example is Model Rule 4.2,
which allows lawyers to make contact with represented persons if the
contact is “authorized . . . by law.”50 Comment 5 to Rule 4.2 suggests that
“administrative agencies . . . may have rules of procedure and evidence different from those
44. See MODEL RULES OF PROF’L CONDUCT r. 3.4(c).
45. By contrast, the Restatement states that a lawyer representing a client before an
administrative agency “must comply with applicable law and regulations governing such
representations.” RESTATEMENT (THIRD), supra note 2, § 104(2). The Restatement is not,
however, limited to ethical prohibitions and so states a broader rule to alert lawyers to
potential consequences other than state discipline for violating a federal agency’s rules.
46. MODEL RULES OF PROF’L CONDUCT r. 1.16(c).
47. See, e.g., 17 C.F.R. § 12.9(c) (CFTC; notice plus permission); 17 C.F.R.
§ 201.102(d)(4) (SEC; notice only); 29 C.F.R. § 2200.23(b) (OSHRC; notice plus
48. MODEL RULES OF PROF’L CONDUCT r. 1.6(b)(6). Note that the exception says “court”
order, not order of a “tribunal,” so a question could be raised about whether an order by an
agency acting in its adjudicative capacity falls under this exception.
49. Id. cmt. 15; see also Michigan State Bar Judicial Ethics Comm., Op. RI-311 (1999)
(opining that the Code of Federal Regulations constitutes “law” for purposes of the Rule 1.6
exception, so that compliance with an agency rule mandating disclosure would not violate
Michigan’s Rules of Professional Conduct).
50. MODEL RULES OF PROF’L CONDUCT r. 4.2.
such communications “may include communications by a lawyer on behalf
of a client who is exercising a constitutional or other legal right to
communicate with the government.”51 Other Model Rules that incorporate
other law include rules on communication,52 conflicts of interest,53
withdrawal,54 tampering with evidence55 or witnesses,56 and impartiality of
a tribunal.57 One argument against interpreting “law” to include agency
regulations is that there is one Model Rule that uses both the terms “law”
and “rule,” suggesting that the drafters view them as distinct.58
In sum, lawyers who practice before federal agencies must comply with
state ethics rules, typically based on the ABA Model Rules and applicable
to all lawyers, as well as with the specific rules applicable to lawyers
engaged in agency practice. They also must pay attention to which function
the agency is serving to determine which state ethics rules apply. And they
must consider how the agency’s own rules may impact their ethical
obligations under the general ethics rules. Just what those agency rules are
and what purposes they might serve are the topics of the remaining two
II. EXPLANATIONS AND JUSTIFICATIONS
FOR FEDERAL AGENCY RULES
State ethics rules provide an important backdrop for the federal agency
rules regulating lawyers who appear and practice before the agencies.
Although some of these rules predate the ABA Model Rules, many
agencies have promulgated or revised their rules since the Model Rules first
appeared in 1980. Yet while the states have almost unanimously fallen in
line behind the Model Rules, the agencies have largely gone their own
ways. This part examines possible reasons for these rules and their
apparent diversity. Looking at what is and why it might have come to be
51. Id. cmt. 5.
52. Id. r. 1.4(a)(5) (“A lawyer shall . . . consult with the client about any relevant
limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance
not permitted by the Rules of Professional Conduct or other law.”).
53. Id. r. 1.7(b)(2) (allowing consent to cure a concurrent conflict of interest if, among
other things, “the representation is not prohibited by law”).
54. Id. r. 1.16(a)(
) (stating that “a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from representation of a client if . . . the
representation will result in violation of the rules of professional conduct or other law”).
55. Id. r. 3.4(a) (“A lawyer shall not . . . unlawfully obstruct another party’s access to
evidence or unlawfully alter, destroy or conceal a document or other material having
potential evidentiary value . . . .”).
56. Id. r. 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.”).
57. Id. r. 3.5(a) (“A lawyer shall not . . . seek to influence a judge, juror, prospective
juror or other official by means prohibited by law.”); id. r. 3.5(b) (“A lawyer shall
not . . . communicate ex parte with such a person during the proceeding unless authorized to
do so by law or court order.”).
58. Id. r. 5.5(d)(2) (allowing a lawyer not licensed in a jurisdiction to provide legal
services there if the services are ones “that the lawyer is authorized by federal or other law or
rule to provide in this jurisdiction”).
can provide a more informed debate about the normative questions
concerning the legitimacy and desirability of these rules.
A. Specialized Rules Tailored to Particular Regulatory Regimes
One possible explanation for agency ethics rules is that an agency can
tailor its rules to the agency’s particular subject area and practice context.59
By contrast, the ABA’s Model Rules aim to govern all lawyers, regardless
of the subject matter or nature of the lawyer’s practice and therefore must
arguably be more general.60 The ABA itself has, on occasion, taken a more
specialized approach, for example, by adopting Standards Relating to the
Administration of Criminal Justice,61 as well as other standards on
particular practice topics that provide more detailed guidance than the
Model Rules do.62
If specialized tailoring is the goal of agency rules, we would expect the
agency rules to focus on those aspects of practice specific to a particular
agency and the industry the agency regulates. We might expect a big
emphasis on issues such as competence, because the meaning of
competence varies by practice area. On the other hand, if the tailoring
theory were the dominant explanation for agency rules, we would expect
relatively few general rules that could easily apply to lawyers appearing
before different agencies, operating in different industries, and with
B. Rules Addressing Practice Before Agencies Generally
A related justification for agency ethics rules is that agency practice in
general has unique aspects that the Model Rules either do not cover or on
which agencies’ views of lawyers’ responsibilities differ. The argument is
that practice before any administrative agency shares certain common
features that necessitate separate rules.
59. See Coquillette & McMorrow, supra note 2, at 132 (“Representation before agencies
also involves particular practice context, so that agency-level regulation tailors the
professional regulation to reflect the unique aspects of the practice setting.”); see also id. at
147 (noting that agency practice rules reflect federal norms that complement state
regulations in areas of unique federal interest).
60. The Model Rules do not follow this principle absolutely. In addition to Rule 3.9,
discussed supra notes 9–11, 17–22, see Rules 1.11 (conflict of interest rule for former and
current government lawyers), 1.12 (conflict of interest rule for former judges), 1.13 (special
rule for lawyer representing organizations, including government lawyers), 2.4 (special rule
for lawyer serving as a third-party neutral), and 3.8 (special rule for prosecutors) for other
61. AM. BAR ASS’N, STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL
62. See, e.g., STANDARDS OF PRACTICE FOR LAWYERS REPRESENTING VICTIMS OF
DOMESTIC VIOLENCE, SEXUAL ASSAULT AND STALKING IN CIVIL PROTECTION ORDER CASES
(2007); STANDARDS OF PRACTICE FOR LAWYERS REPRESENTING A CHILD IN ABUSE AND
NEGLECT CASES (1996).
As discussed in the previous part,63 the Model Rules identify three types
of agency conduct and then determine which rules apply to which type of
conduct. Roughly speaking, the Model Rules divide the lawyering world
into litigation lawyers and transactional lawyers. Lawyers practicing before
agencies acting in their executive capacity, however, do not fall squarely
within either of these traditional practice paradigms. Perhaps the main
activity agencies do is compel the production of information, the raw
material that agencies in turn use to create, modify, or enforce regulations.
Regulated persons and entities must provide this information, often with the
assistance of their lawyers. Advocate lawyers and their clients are also
compelled to provide information, but only in the limited context of an
adversary proceeding, supervised by a court, concerning a specifically
alleged wrong that generally has already occurred. Transactional lawyers
and their clients generally are not compelled to provide any information,
though they often do so voluntarily, and in doing so they must not lie to
others or otherwise engage in fraud. Agencies compelling the production of
general information about ongoing activities absent any accusation of
wrongdoing fall somewhere in between these paradigms.
If agency rules aim to address the unique aspects of agency practice, we
should expect to see relative uniformity across agency rules and a focus on
topics such as investigations. On the other hand, we might expect to see
fewer rules addressing areas of practice common to all lawyers, such as
rules governing the lawyer-client relationship, because these do not
implicate the unique features and institutional interests of agencies.
C. Uniform Rules for Nonlawyers and Lawyers Who Practice Before an Agency
One common justification for agency rules regulating lawyers is that
many agencies allow specified nonlawyers to represent people before
them.64 This justification breaks down into two parts. First, because
nonlawyers are not otherwise regulated, agencies need to do it to ensure that
these nonlawyer practitioners act appropriately. Second, if agencies are
going to regulate the nonlawyers who practice before them, the same
standards should apply to both lawyers and nonlawyers providing the same
Both of these rationales can be questioned. With respect to the first,
nonlawyer representatives generally act as agents of the regulated people
they are representing; thus, they are regulated by the common law of
agency, which covers much of the same ground as ethics rules.65 They are
63. See supra Part I.A.
64. See Coquillette & McMorrow, supra note 2, at 132 & n.51 (quoting BERNARD
WOLFMAN ET AL., ETHICAL PROBLEMS IN FEDERAL TAX PRACTICE 6 (4th ed. 2008)).
65. See generally RESTATEMENT (THIRD) ON AGENCY (AM. LAW INST. 2000). An agent
is anyone who acts on behalf of someone else, subject to that person’s control, and with that
person’s consent. See id.
also subject to other general law, such as tort, contract, and criminal law.66
Administrative agencies may nevertheless find this other law inadequate (as
state bar organizations have in promulgating lawyer ethics rules), either
because the standards are not demanding or definitive enough, or because
enforcing agency law through liability and criminal sanction may be
excessively difficult and costly for clients or agencies.
With respect to the second rationale, the question is what purpose
uniformity of standards for lawyer and nonlawyer representatives is
supposed to serve. If the purpose is to provide some minimum standard of
behavior to protect clients and the agency, then it is not clear why
uniformity is necessary. So long as the lawyer’s state ethical standards
meet or exceed the minimum set by the agency, there is no obvious need to
apply the agency’s rules to the lawyers. One reason to allow nonlawyer
practitioners to represent people before an agency may be to provide a
lower-cost alternative to clients. Clients who prefer the supposedly higher
quality service that lawyers provide can opt for that. The real purpose of
uniformity may be the opposite, however: to impose a stricter set of rules
on the nonlawyers to protect lawyers from a competitive disadvantage
relative to the nonlawyer practitioners. If that is the purpose, then we might
expect the agency rules to apply essentially all of a lawyer’s ethical
obligations to the nonlawyer. A final reason for uniformity might be that
the lawyer ethics rules are inadequate, so that both lawyers and nonlawyers
need to be brought up to the “higher” agency standard of conduct.
D. Inadequate State Ethics Rule Enforcement
Another potential reason for agency ethics rules is that state disciplinary
authorities may lack the expertise or resources (or both) to discipline
lawyers who practice before federal agencies.67 Agencies are experts in
their own rules and governing statutes, whereas state disciplinary
authorities cannot staff themselves with lawyers expert in all areas of legal
practice. Moreover, the resource constraints of state disciplinary authorities
If this rationale predominates, we might expect to see little deviation
from state ethics rules. In particular, because the main concern is
inadequate enforcement, not substance, agency rules might simply
66. See, e.g., 18 U.S.C. § 201 (2012) (bribery of public officials and witnesses); id.
§ 1001 (false statements to government agencies); id. § 1505 (obstruction of justice in
proceedings before agencies); id. § 1512 (tampering with witnesses or evidence); id. § 1519
(destruction of records in agency investigations).
67. See Coquillette & McMorrow, supra note 2, at 147–48 (stating that agency ethics
enforcement “generally addresses areas of attorney conduct that are neglected by state
regulators”); Cox, supra note 4, at 179 n.22 (quoting ABA STANDING COMM. ON PROF’L
DISCIPLINE, REPORT TO THE HOUSE OF DELEGATES 4 (1980)); id. at 179 n.23 (quoting a letter
from SEC officials to the ABA concerning proposals regarding agency discipline of
lawyers); Fred C. Zacharias, Understanding Recent Trends in Federal Regulation of
Lawyers, 2003 PROF. LAW. 15, 30–31 (suggesting that increased regulation of lawyers by
agencies may “reflect a broad perception that traditional state regulation of lawyers is failing
and that nontraditional regulators should enter the field”).
incorporate the state ethics rules of each lawyer’s home jurisdiction. To the
extent that agency rules deviate from state rules, we might expect to find
more agency rules governing areas that are more legally or factually
E. Multijurisdictional Practice Issues
Lawyers who practice before federal agencies might not practice in the
jurisdiction in which they are licensed.68 In particular, lawyers who work
in Washington, D.C., and practice full time before federal agencies may be
licensed in another jurisdiction, yet are permitted to practice in D.C.69
These lawyers are not subject to discipline by the D.C. authorities.70 They
are subject to discipline in the jurisdictions in which they are licensed, but,
for reasons stated in the previous section,71 such discipline may be unlikely
against lawyers living and working outside the jurisdiction.
Lawyers practicing before federal agencies in D.C. are licensed in a
variety of jurisdictions. One might expect that agencies would want to
apply the same rules to all lawyers who practice before them. Doing so
would reduce enforcement costs for agencies that would not have to
become familiar with multiple sets of ethics rules. Although the aspiration
of the ABA Model Rules is that states will adopt them without change,
many states modify the ABA Model Rules. Agencies that sought to achieve
uniformity for these reasons could do so in several ways. They could hew
closely to the ABA Model Rules so as to be neutral with respect to
particular state variations. Or agencies could use the D.C. Rules as a
68. See Cox, supra note 4, at 178, 179 (arguing that “if the states effectively processed
allegations of attorney misconduct before federal agencies, federal disciplinary actions
arguably would be unnecessary”).
69. Rule 49 of the D.C. Court of Appeals Rules (“the D.C. Rules”) exempts from the
prohibition on unauthorized practice of law lawyers who
[p]rovid[e] legal services to members of the public solely before a special court,
department or agency of the United States, where:
(A) Such legal services are confined to representation before such fora and
other conduct reasonably ancillary to such representation;
(B) Such conduct is authorized by statute, or the special court, department or
agency has adopted a rule expressly permitting and regulating such
(C) If the practitioner has an office in the District of Columbia, the
practitioner expressly gives prominent notice in all business documents
of the practitioner’s bar status and that his or her practice is limited
consistent with this section (c).
RULES OF THE DISTRICT OF COLUMBIA COURT OF APPEALS r. 49(c) (2015). As discussed in
the previous section, see supra note 41 and accompanying text, Model Rule 5.5(d)(2) adopts
a similar permission for “services that the lawyer is authorized by federal or other law or rule
to provide in this jurisdiction,” but the D.C. Rules do not include this provision; instead, the
comment to D.C. Rule 5.5 references Rule 49. Id. r. 5.5 cmt. 1.
70. D.C. Rule 8.5(a), which sets forth the D.C. disciplinary authority, does not extend
this authority to lawyers licensed outside of D.C. but practicing in D.C. By contrast, ABA
Model Rule 8.5(a) provides: “A lawyer not admitted in this jurisdiction is also subject to the
disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal
services in this jurisdiction.” MODEL RULES OF PROF’L CONDUCT r. 8.5(a).
71. See supra Part II.D.
model, as that is the jurisdiction in which most federal agencies are
headquartered. Or agencies could just adopt their own rules. But any of
these approaches potentially creates difficult choice of law problems for
lawyers whose state ethics rules differ from the federal agency rules.72
Agencies may, however, use their own ethics rules to restrict, rather than
expand, the ability of lawyers to engage in multijurisdictional practice. In
particular, agencies may seek to engage in reciprocal discipline, in which
agencies restrict practice by lawyers who have already been disciplined
elsewhere. If that is the main concern, agencies need not have uniform
rules, or any substantive ethics rules, but simply can rely on the various
state authorities disciplining lawyers under their own rules.
F. Private Lawyer Interests
Agency rules may reflect the interests of the lawyers who practice before
the agencies rather than the interests of agencies. Agency rules created
under this theory could be benign and desirable; for example, they could
help create or maintain a close-knit community of practitioners, like a
specialized bar. Alternatively, agency rules could reflect self-interested
capture of an agency by lawyers who practice before it. One might expect
smaller bars with extensive repeated interactions with agencies to have
greater influence on those agency rules.73
It may be difficult, however, to discern whether agency rules reflect
lawyer interests and whether these interests are benign or malign. Some
rules could on their face appear to serve lawyer interests more than an
agency’s interest or the public interest. On the other hand, if agency ethics
rules aim to respond to capture concerns—for example, rules governing
revolving door conflicts or other forms of undue influence—the existence
of such rules might suggest that the malign version of agency rules is less
G. Experimentation in Ethical Regulation
We are used to thinking of states as the laboratories of democracy in our
federal system. The significant variation in the state versions of the Model
Rules is consistent with this view.75 Nevertheless, agencies may feel less
constrained by the ABA prototype than states do, and therefore they may
feel freer to experiment, even if none of the justifications discussed above
applies. Under this rationale, we might expect to find variations that do not
fall within the above categories, but simply reflect an agency’s view of
desirable ethics rules.
72. But see Coquillete & McMorrow, supra note 2, at 148 (concluding that choice of law
issues seem to be “manageable”).
73. Professors Coquillette and McMorrow suggest that the capture problem may in fact
be bigger for the state ethics rules than for agency-created rules. Id. at 148–49.
74. See id. at 132–33.
75. See Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 373–76
(1994) (analyzing the argument that respecting state professional regulation “enables the
states to serve as laboratories for novel approaches”).
H. History and Experience
Finally, agency ethics rules may arise and exhibit variety simply because
agencies have different histories and experiences. As I tell my students, law
is the fossilized remains of prior misbehavior. Agency rules may simply
reflect an agency’s experiences with lawyers practicing before it, which
may not have anything to do with agency practice generally or an agency’s
particular subject matter context. Although one might expect a highly
public scandal involving lawyers practicing before one agency to influence
other agencies’ rules, agencies may, rightly or wrongly, see problems faced
by other agencies as unique to those agencies’ particular circumstances.
III. AN EXAMINATION OF RULES GOVERNING LAWYERS
PRACTICING BEFORE FEDERAL AGENCIES
This part offers a preliminary examination of federal agency ethics rules.
It begins with some general observations about these rules and then
evaluates the theories presented in the previous part based on the rules that
exist. I find some support for most of the theories, but no single theory
explains all or most of the existing rules.
A. General Observations
Forty-six agencies that have rules published in the Code of Federal
Regulations have at least one ethics rule governing lawyers who practice
before the agency.76 Rules appear in twenty-six of the fifty titles of the
Code of Federal Regulations.77 The agencies steadily have adopted these
rules over a period stretching from 1958 to 2014, with no more than a
fouryear gap from the adoption of one set of rules to the adoption of the next,
with no year having more than three adoptions, and with most years having
no more than one.78 The most common topics covered by the rules are
disruptive conduct (twenty-seven agencies), ex parte contact with agency
officials (twenty-six),79 incorporation of state ethics duties (twenty-five),
frivolous claims (twenty), required compliance with agency rules
(nineteen), and obstruction of justice (eighteen). This list is striking. Only
the first three of these rules have been adopted by a majority of agencies
having at least one ethics rule, and no ethics rules outside this list are
adopted by one-third or more of the agencies having at least one rule. The
vast majority of rules apply to lawyers practicing before an agency acting in
76. See infra APPENDIX A for an alphabetical list. The rules are not easy to locate, and
classification is subject to interpretation, so I may have missed some. A spreadsheet I
created containing all the agency rules I could find and matching them up to the ABA Model
rules is available on the Fordham Law Review website at http://fordhamlawreview.org/gmc/.
77. See infra APPENDIX B.
78. See infra APPENDIX D.
79. The Administrative Procedure Act bars ex parte communications with agency
decision makers, but the remedy is limited to dismissal of the claim. See 5 U.S.C. §§ 557
)(O) (2012). Although agencies typically have rules against ex parte contact
with agency officials, I included only those agencies whose rules specifically provide for
some form of discipline against lawyers who violate the rule.
its judicial capacity. Although the content of these rules does not vary
greatly when an agency includes them, which agencies include which rules
varies significantly, with no readily apparent pattern. In addition, the
organizational structure and labeling of agency rules varies dramatically.80
Only two sets of agency rules track the format and scope of the Model
Rules: the USPTO Rules of Professional Conduct81 and the Judge
Advocate General (JAG), Department of the Navy, Rules of Professional
Conduct.82 Even these rules do not include the comments from the Model
Rules; in fact, no agency rules include comments.83 Eight other agencies
have relatively comprehensive and detailed lawyer practice rules not
generally patterned on the Model Rules: Executive Office of Immigration
Review84 (EOIR), Department of Homeland Security85 (DHS), Department
of Transportation (DOT), Aviation Proceedings,86 Social Security
Administration87 (SSA), IRS,88 Veterans Administration (VA), Surface
Transportation Board89 (STB) (formerly Interstate Commerce
Commission), and Bureau of Alcohol, Tobacco and Firearms (BATF). The
SEC has a detailed set of rules promulgated under the Sarbanes-Oxley
statute, but these rules cover a limited number of topics.90
The agencies regulating banks also have significant rules governing
lawyers who practice before the agencies, but they do not separate out those
rules, identify them as rules of professional conduct or similar
nomenclature, or collect all the rules in one place, making them difficult to
find if one does not know where to look. These agencies are: the Federal
Deposit Insurance Corporation91 (FDIC), the Office of Thrift Supervision92
(OTS), the Office of the Comptroller of the Currency93 (OCC), the National
Credit Union Administration94 (NCUA), and the Federal Reserve Board95
(FRB). With respect to adjudicative proceedings, the banking agencies
have adopted “Uniform Rules of Practice and Procedure,” which serve as
the equivalent of the Federal Rules of Civil Procedure96 (FRCP). These
Uniform Rules cover topics found in the ABA Model Rules, such as rules
on disruptive or obstructionist conduct, frivolous claims, conflicts of
interest, and ex parte communications with officials.97 The placement of
these rules within rules of procedure, which occurs in other agencies as well
as the banking agencies, shows that agencies do not necessarily follow the
division of territory normally observed between rules of civil procedure and
ethics rules.98 With respect to their nonadjudicative capacities, the banking
agencies do not have uniform ethics rules, and the ethics rules they have are
listed under different topic headings, such as “Practice Before the
[Agency]” or “Formal Investigations.”99
Agency rules leave out a large number of topics covered in the state
ethics rules. Some of the omitted topics simply reflect the more limited
scope of lawyer practice before the agency. For example, no agency rules
address criminal practice, with the exception of the JAG Rules, which apply
to courts martial.100 In addition, none of the agencies’ rules include any
rules similar to the Public Service Rules found in Model Rules 6.1 to 6.5.
And none of the agencies’ rules includes Model Rule 7.6 on Political
Contributions to Obtain Government Legal Engagements or Appointments
by Judges, as agencies generally do not engage in retaining or appointing
The USPTO and JAG Rules, which track the Model Rules (with
significant modifications), include versions of all the other Model Rules,
though in some cases only one of these two agencies includes a particular
rule. The topics of many of those rules, however, are not included in the
rules of any other agency.101 Even Rule 3.9, which specifically addresses
lawyers appearing before agencies acting in nonadjudicative contexts,
appears in only one other agency’s rules.102 A number of other topics
covered by the Model Rules appear in the rules of no more than four
agencies, including all the rules on Information About Legal Services, but
also such significant topics as successive conflicts of interest, the
NoContact Rule (the rule that prohibits certain contact with represented
persons, not the rule that prohibits contact with agency personnel), and the
duty to report misconduct.103 It is particularly noteworthy that apart from
the SEC’s Sarbanes-Oxley Rules (and the USPTO and JAG Rules), no
other agency has a rule on the responsibilities of lawyers for an
organization, including the up-the-ladder reporting obligation, even though
several financially oriented agencies have adopted rules since
SarbanesOxley (i.e., FHFA, OCC, and Bureau of Consumer Financial Protection
B. How Agency Rules Reflect the
Justifications for Agency Regulation
In light of this hodgepodge, it should not be surprising that no single
theory explains all of the agency rules. Nor does one explanation
predominate. In many cases, more than one rationale seems applicable.
Different theories better explain rules in different agencies, though the
reason for the differences between agencies is not always apparent. This
section examines the extent to which agency rules governing lawyers reflect
the previously identified justifications.
101. The Model Rules that appear in some form in either the USPTO Rules or the JAG
Rules but are not in any other agency rules (that I could find) are: 1.12 (conflicts of interest
for former judges), 1.14 (clients with diminished capacity), 1.17 (sale of a law practice)
(USPTO only), 1.18 (duties to prospective clients) (USPTO only), 2.3 (opinion letters), 2.4
(lawyer as third-party neutral), 3.7 (lawyer as witness), 3.8 (duties of a prosecutor) (JAG
only), 5.6 (restrictions on the right to practice) (USPTO only), 5.7 (law-related services)
(USPTO only), 8.2 (statements about judges), and 8.5 (choice of law) (JAG only).
102. 10 C.F.R. § 2.1509 (2015) (Nuclear Regulatory Commission).
103. The rules (apart from those mentioned in the previous footnote) whose topics are not
addressed in more than four agencies (including USPTO and JAG) are: Rules 1.0
(definitions), 1.8 (transactional conflicts), 1.9 (successive conflicts), 1.10 (imputation of
conflicts of interest), 1.13 (organizational clients), 2.1 (lawyer as advisor), 3.6 (trial
publicity), 3.9 (nonadjudicative proceedings), 4.2 (no-contact rule), 4.3 (dealing with
unrepresented persons), 4.4 (respect for the rights of third persons), 5.2 (subordinate lawyer),
5.3 (nonlawyer assistants), 5.4 (independence of lawyer), 7.2 (advertising), 7.5 (firm names
and letterheads), 8.1 (bar admission), and 8.3 (reporting misconduct).
1. Specialization and Competence
Some agency rules are tailored to specialized areas of practice. For
example, the USPTO rule on competence adds that lawyers (and nonlawyer
practitioners) practicing before that agency must have “scientific and
technical knowledge” necessary for the representation,104 an obvious
necessity for patent practice. In addition, the immigration agencies (EOIR
and DHS) are unique in requiring that lawyers make reasonable efforts to
communicate with a client in the client’s native language, a particularly apt
requirement for lawyers handling immigration cases. The SSA details the
assistance a practitioner must provide to a claimant for benefits in providing
certain evidence to the agency,105 which may reflect the fact that the
claimants before that agency are individuals who are generally mentally or
physically disabled or elderly and so likely need extra assistance in
gathering information. The IRS’s Circular 230 Rules include detailed
requirements for lawyers assisting clients with tax returns or drafting tax
opinions.106 The JAG confidentiality rule includes a mandatory disclosure
provision for situations in which a lawyer “reasonably believes” such
disclosure is “necessary to prevent . . . significant impairment of national
security or the readiness or capability of a military unit, vessel, aircraft, or
Most agency rules, however, neither tailor their rules to the agency’s area
of expertise, nor require lawyers to have any particular nonlegal expertise
related to the agency’s function. Perhaps most striking, many agencies with
ethics rules do not include a competence rule. Those that do108 generally
track the language of Model Rule 1.1,109 sometimes (in addition to adding
supplemental requirements, as discussed in the previous paragraph)
incorporating language from that rule’s comments,110 or adding the
requirement that a practitioner must have knowledge of the agency’s
governing statute and regulations, which would seem to go without saying
(at least for lawyers).111
In addition, many agency rules that at first blush seem to fit the
specialization mold could, in fact, be adopted by other agencies. For
example, the SEC Sarbanes-Oxley Rules largely expand on the
up-theladder reporting obligation found in Model Rule 1.13,112 which applies
beyond the securities law context. Other than specifying securities law
violations as triggering the lawyer’s obligations, very little in the SEC
Rules seems uniquely tailored to securities law practice. Similarly, the duty
of inquiry imposed by the IRS’s Circular 230 could easily fit other practice
2. Agency Uniqueness and Tripartite Structure
Some agency rules reflect the unique features of agencies in general
rather than the specialized areas in which agencies operate, though not as
much as one might expect. For example, one might expect that, given the
tripartite structure of the Model Rules and the more detailed obligations
they impose on lawyers practicing before an agency acting in its
adjudicative capacity, agency rules would focus more on the agencies’
legislative and executive capacities.
Some agencies do have rules applying to their executive role, in
particular rules governing agency investigations and the submission of
information to the agencies, but not many. The IRS is unique in adopting a
prohibition against “frivolous” positions in documents filed outside of
litigation.114 In addition, the IRS,115 USPTO,116 and SSA117 all contain
applicable provisions of Title 38, United States Code, and Title 38, Code of Federal
Regulations”). Somewhat ironically, such competence would be necessary to find this rule
itself. See 20 C.F.R. § 404.1740(b)(3)(i) (stating that competence for a lawyer practicing
before the SSA includes “knowing the significant issue(s) in a claim and having a working
knowledge of the applicable provisions of the Social Security Act, as amended, the
regulations and the Rulings”).
112. See MODEL RULES OF PROF’L CONDUCT r. 1.13(b).
113. See 31 C.F.R. § 10.22(a)(2)–(3) (2015) (requiring a practitioner to exercise “due
diligence . . . in determining the correctness of oral or written representations made by the
practitioner” to the Treasury Department or IRS); 31 C.F.R. § 10.37(a)(2)(ii)–(iii) (requiring
a practitioner providing written advice to “reasonably consider all relevant facts and
circumstances that the practitioner knows or reasonably should know” and to “use
reasonable efforts to identify and ascertain the facts relevant to written advice on each
Federal tax matter”).
114. 31 C.F.R. § 10.34(b)(
) (“A practitioner may not advise a client to take a position on
a document, affidavit or other paper submitted to the Internal Revenue Service unless the
position is not frivolous.”); id. § 10.34(b)(2)(ii) (“A practitioner may not advise a client to
submit a document, affidavit or other paper to the Internal Revenue Service . . . [t]hat is
frivolous . . . .”).
115. Id. §§ 10.22, 10.34(d).
116. 37 C.F.R. § 11.18(b)(2) (2015). Note that this rule is not included in the USPTO’s
general rules of professional conduct. For a discussion of the requirements of this Rule, see
Brandee N. Woolard, The Resurrection of the Duty to Inquire After Therasense, Inc. v.
Becton, Dickenson & Co., 12 DUKE L. & TECH. REV. 41 (2014).
117. 20 C.F.R. § 404.1740(b)(
) (2015) (stating that a representative must “[a]ct with
reasonable promptness to obtain the information and evidence that the claimant wants to
submit in support of his or her claim, and forward the information or evidence to us for
consideration as soon as practicable”).
express duties of inquiry that apply something like the FRCP 11 standard
outside of the litigation context. The great majority of agency rules,
however, deal with lawyers’ duties to an agency acting in its adjudicative
role, the subject covered most extensively by the Model Rules. Moreover,
apart from the Nuclear Regulatory Commission118 (NRC), JAG,119 and the
USPTO,120 none of the agencies have rules specifically addressing a
lawyer’s obligations when practicing before an agency acting in its
One reason agencies do not adopt rules addressing lawyers who practice
before the agency in its executive role may be that the agencies believe they
lack statutory authority to do so. Several recent court decisions have
highlighted this issue and thrown into doubt the IRS’s authority to regulate
lawyers outside the adjudicatory context under Circular 230. In Loving v.
IRS,122 the D.C. Circuit held that the IRS could not regulate nonprofessional
tax preparers under its Circular 230 Rules because they do not “practice”
before the agency. The only nonadjudicative context the court recognized
as “practice” was an “investigation.”123 Subsequently, a federal district
court extended the Loving holding to tax professionals such as lawyers.124
How far those opinions extend in the IRS context and beyond currently is
Other agency rules extend lawyer obligations beyond those imposed by
the Model Rules in ways that reflect the concerns of agencies in general.
For example, one of the most common types of agency rule requires
practitioners to comply with agency rules.126 These rules extend beyond
the requirements of the Model Rules, which expressly require lawyers to
obey agency rules only if the agency acts as a “tribunal.”127 Similarly,
Model Rule 1.2(d) prohibits a lawyer from aiding and abetting only a
118. 10 C.F.R. § 2.1509 (2015).
119. 32 C.F.R. § 776.48 (2015).
120. 37 C.F.R. § 11.309.
121. The CFTC allows a lawyer to be disciplined who has “engaged in unethical or
improper professional conduct either in the course of any adjudicatory, investigative or
rulemaking or other proceeding before the Commission or otherwise.” 17 C.F.R. § 14.8
122. 742 F.3d 1013 (D.C. Cir. 2014).
123. See id. at 1018.
124. Ridgely v. Lew, 55 F. Supp. 3d 89, 92 (D.C. Cir. 2014).
125. See Jaime P. Hopkins, Loving v. IRS: The IRS’s Achilles’ Heel for Regulated Tax
Advice?, 34 VA. TAX REV. 191, 222–23 (2014).
126. See 12 C.F.R. §§ 263.91, 263.94(h) (2015) (FRB); id. § 308.108(a)(3) (FDIC); id.
§ 513.4(a)(4) (OTS); id. § 1209.74 (FHFA); 13 C.F.R. § 134.219(a)(2) (2015) (SBA); 16
C.F.R. § 1025.66(b) (2015) (CPSC); 17 C.F.R. § 14.4 (2015) (CFTC); id.
)(iii) (SEC); 20 C.F.R. §§ 404.1740 (a)(2), (c)(9) (2015) (SSA); 29 C.F.R.
)(iii) (2015) (DOL); 31 C.F.R. § 10.34(b)(2)(iii) (2015) (IRS); 32 C.F.R.
)(v) (2015) (JAG); 40 C.F.R. § 27.29(a)(
) (2015) (EPA); 48 C.F.R.
§ 6101.33(a) (2015) (CBCA); 49 C.F.R. § 1103.27(f) (2015) (STB). The immigration
agencies have a rule limited to requiring lawyers to follow the agencies’ rule on signing and
completing a Notice of Entry of Appearance. 8 C.F.R. § 1003.102(t) (2015) (EOIC, DHS).
127. MODEL RULES OF PROF’L CONDUCT r. 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 obligations exists.”).
client’s “conduct that the lawyer knows is criminal or fraudulent,”128
whereas agencies that include an aiding and abetting rule often include
regulatory or statutory violations.129 These violations may not count as
crimes or frauds within the meaning of Model Rule 1.2(d). Moreover, in
some cases, the agency aiding and abetting rules omit a scienter standard or
(in the case of the IRS) specify a recklessness or gross incompetence
standard, which is less demanding than the “knowledge” scienter required
for an aiding and abetting violation under Model Rule 1.2(d).
One might expect that agencies would act aggressively to impose
disclosure obligations on lawyers to further their public missions, which
require detailed and accurate information from regulated parties. In fact,
only a few agencies impose affirmative mandatory disclosure provisions on
lawyers in the absence of a specific request by the agency. The USPTO
requires practitioners to “disclose to the Office information necessary to
comply with applicable duty of disclosure provisions.”130 The IRS Circular
230 Rules require that practitioners “promptly submit records or
information in any matter before the Internal Revenue Service unless the
practitioner believes in good faith and on reasonable grounds that the
records or information are privileged”131 and “provide[s] any information
the practitioner has concerning [an] alleged violation [of the regulations in
this part], unless the practitioner believes in good faith and on reasonable
128. Id. r. 1.2(d) (“A lawyer shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent . . . .”).
129. See, e.g., 12 C.F.R. § 263.94(a) (FRB) (stating that the Board may discipline an
individual for “[w]illfully or recklessly violating or willfully or recklessly aiding and
abetting the violation of any provision of the Federal banking or applicable securities laws or
the rules and regulations thereunder or conviction of any offense involving dishonesty or
breach of trust”); id. § 308.109(a)(
)(iii) (FDIC) (stating that a lawyer can be disciplined if
found to “have engaged in, or aided and abetted, a material and knowing violation of the
FDIA”); id. § 513.4(a)(4) (OTS) (stating that a lawyer can be disciplined if found to “have
willfully violated, or willfully aided and abetted the violation of, any provision of the laws
administered by the Office or the rules and regulations promulgated thereunder”); 14 C.F.R.
§ 300.6(d) (2015) (DOT) (stating that a practitioner before the DOT should “[a]dvise all
clients to avoid improprieties and to obey the law as the attorney believes it to be”); 17
C.F.R. § 14.4 (CFTC) (stating that the agency may discipline any person found “to have
violated, caused, or aided and abetted any violation of the Commodity Exchange Act . . . or
the rules and regulations adopted thereunder”); id. § 201.102(e)(
)(iii) (SEC Rule 102(e))
(stating that the SEC can discipline a lawyer if the lawyer is found to have “willfully aided
and abetted the violation of any provision of the Federal securities laws or the rules and
regulations thereunder”); 20 C.F.R. § 404.1740(c)(
) (SSA) (stating that a representative
must not “[a]dvise any claimant or beneficiary not to comply with any of our rules or
regulations”); 31 C.F.R. § 10.34(a)(
) (2015) (IRS) (stating “[a] practitioner may not
willfully, recklessly, or through gross incompetence” assist a taxpayer in specified conduct
that violates the tax code, or take a position that “lacks a reasonable basis”); 49 C.F.R.
§ 1103.31 (2015) (STB) (stating, based on the former ABA Canons, that a “practitioner
bears the responsibility for advising as to questionable transactions, bringing questionable
proceedings, or urging questionable defenses”). As this list makes clear, the aiding and
abetting standards vary greatly across agencies. For example, the FRB, OTS, CFTC, SEC,
and IRS rules extend the prohibition to both statutory and regulatory violations; the SSA
Rule applies to regulatory violations only; the FDIC rule applies to statutory violations only;
and the DOT and STB rules are unclear.
130. 37 C.F.R. § 11.106(c) (2015).
131. 31 C.F.R. § 10.20(a)(
grounds that the information is privileged.”132 Most recently, the SSA
revised its regulations to impose on representatives a duty to “[a]ct with
reasonable promptness to help obtain the information or evidence that the
claimant must submit under our regulations, and forward the information or
evidence to us for consideration as soon as practicable.”133
In sum, a number of agencies do have ethics rules applicable to lawyers
appearing before the agencies acting in their executive capacity, such as
rules concerning investigations, duties of inquiry, and aiding and abetting
prohibitions. The existence of these rules supports the theory that agencies
are filling in some of the gaps left by the tripartite structure of the Model
Rules and addressing issues uniquely relevant to agency practice generally.
Nevertheless, fewer agencies have such rules than one might anticipate and
the rules that agencies do adopt vary widely. Thus, this theory is only
partially successful in explaining the existence and variety of agency rules.
3. Nonlawyer Practitioners
The vast majority of agencies with rules for representatives who practice
before the agency allow nonlawyer as well as lawyer practitioners and
apply the same rules to both. That fact somewhat supports the theory that
the rules are at least as much about regulating nonlawyer practitioners as
about regulating lawyers.
Nevertheless, some features of the rules are not consistent with this
theory. Some agencies do adopt rules applying only to lawyers. The most
notable of these rules are the SEC’s Sarbanes-Oxley Rules.134 Other
agencies whose rules apply only to lawyer representatives include EOIR,
DNFSB, SBA, FTC, DOJ, JAG, USPS, CSHIB, and EPA.135 The existence
of these rules obviously cannot be explained by the need to ensure that
nonlawyers adhere to adequate standards of practice. In addition, as already
noted, most agencies do not have competence rules, contrary to what one
would expect if the primary concern of the rules was nonlawyer
More important, among the agencies permitting nonlawyer practice, only
the USPTO follows the Model Rules format, which effectively makes the
nonlawyer practitioners conform to almost all the lawyer ethics rules. One
would think that if agencies wanted to ensure that nonlawyer practitioners
were subject to the same standards as lawyers, they would follow the Model
Rules more closely and include many more rules than they do, especially
those regulating the lawyer-client relationship.136 Thus, even if the need to
have rules governing nonlawyers explains the existence of agency rules, it
does not fully explain their variety.
4. Inadequate State Enforcement
and Incorporation of State Ethics Rules
If agency rules are driven by inadequate state enforcement, one would
expect agencies simply to incorporate state ethics rules. Several agencies
do have only an incorporation rule or very minimal additional rules.137 A
number of agencies, however, have not only incorporation rules, but
substantive rules as well, which suggests a concern with more than
inadequate state enforcement.138
5. Multijurisdictional Practice and Reciprocal Discipline
Agency rules facilitate multijurisdictional practice by generally allowing
lawyers licensed in any jurisdiction to practice before the agency. That fact,
plus the prevalence of incorporation rules discussed in the previous
section,139 suggests that agencies are not too concerned about the possibly
conflicting ethics rules of different states, perhaps because these differences
do not matter very much in the disciplinary issues that agencies most
commonly see. Moreover, several agencies do have reciprocal discipline
rules,140 suggesting that they at least sometimes expect that state
disciplinary authorities will discipline lawyers who practice before them.
But these agencies fit no particular pattern. They include several with
detailed ethics rules (JAG, EOIR/DHS, DOL, BATF), some but not all of
the financial agencies (FRB, FDIC, CFTC), and several agencies with
minimal rules (DOI, FCC).
136. Cf. Katsiotas, supra note 133, at 720–23 (criticizing the SSA ethics rules as less
stringent than state ethics rules and arguing that they are less effectively enforced).
137. See, e.g., 4 C.F.R. § 22.27 (2015) (GAO); 21 C.F.R. § 1316.51(b) (2015) (DEA); 28
C.F.R. § 68.33(c)(3)(iii) (2015) (DOJ); 29 C.F.R. § 102.177(a) (2015) (NLRB); 39 C.F.R.
§ 955.34 (2015) (USPS); id. § 3001.6(e) (PRC); 43 C.F.R. § 1.6(a) (2015) (DOI); 45 C.F.R.
§ 500.4 (2015) (FCSC); 47 C.F.R. §§ 1.24(a)(2), (a)(4) (2015) (FCC).
138. 7 C.F.R. §§ 1.26(b)(
), (2) (2015) (DOA); id. § 97.157 (same); id. §§ 110.8(h)(3),
(4) (same); 10 C.F.R. §§ 1708.112(a), (b)(2) (2015) (DNFSB); 12 C.F.R. § 308.109(a)(
(2015) (FDIC); id. § 1081.107(c)(
) (BCFP); 14 C.F.R. §§ 300.6(a), .20(a) (2015) (DOT,
Aviation); 16 C.F.R. § 4.1(e)(
)(i)(B) (2015) (FTC); 17 C.F.R. § 14.8 (CFTC); id.
§ 201.102(e)(ii) (SEC); 18 C.F.R. § 385.2101(c) (2015) (FERC); 29 C.F.R. § 18.22(c)
(DOL); id. § 2200.104(a) (OSHRC); 31 C.F.R. § 8.41(b)(2)(i) (2015) (BATF) (ABA
advertising and solicitation rules only); 32 C.F.R. § 776.19(a)(2) (2015) (JAG); 38 C.F.R.
§ 14.632(d) (2015) (VA); 48 C.F.R. § 6101.33(a) (2015) (CBCA); 49 C.F.R. § 1103.11
(2015) (STB) (U.S. courts).
139. See supra note 136 and accompanying text.
140. See, e.g., 8 C.F.R. §§ 1003.102(e), (k) (2015) (EOIR/DHS); 12 C.F.R. §§ 263.94(d),
(g) (FRB); id. § 308.109(b)(
) (FDIC); 17 C.F.R. § 14.6 (CFTC); 29 C.F.R. § 18.23(a)(
(ii) (DOL); 31 C.F.R. § 8.52(h) (BATF); 32 C.F.R. § 776.71 (JAG); 43 C.F.R. § 1.6(a)
(2015) (DOI); 47 C.F.R. § 1.24(c) (2015) (FCC).
6. Private Lawyer Interests
Identifying rules that reflect lawyer interests rather than agency interests
is not always easy. Lawyers have been successful in opposing the adoption
of certain rules, especially those mandating lawyer disclosure. For
example, although the securities bar lost the battle opposing the SEC’s
Sarbanes-Oxley Rules, it successfully watered down the trigger for
reporting up and dissuaded the SEC from adopting a “noisy withdrawal”
provision.141 Lawyers also have successfully resisted attempts by some
agencies to expand the application of their rules to nonadjudicatory matters
(what I have called the “executive function”).142 On the other hand, as
noted previously, many agency aiding and abetting rules impose more
stringent standards on lawyers than Rule 1.2(d).143 Moreover, the extensive
permission for nonlawyers to practice before agencies in competition with
lawyers suggests that lawyer clout in this context may not be strong. Thus,
the capture theory, like the previous ones, may explain some rules (or their
absence), but does not appear to explain a significant number or the patterns
A significant degree of variation in the agency rules may be attributable
to a simple preference of the agency to address a particular topic or use
In other cases, an agency may simply seek to clarify a recognized
ambiguity in the Model Rules. One example is the USPTO and JAG rules’
modifications to the Model Rules’ use of the word “law.” The previous
section discussed an ambiguity in this term, which could be interpreted to
include agency regulations.144 The USPTO and JAG rules add the term
“rule” (USPTO) or “regulation” (JAG) to some of their ethics rules using
the term “law.”145 Interestingly, there is only one rule for which both
agencies make the change: the exception to the prohibition on ex parte
contact with an official.146 In other cases, one agency adds “rule” or
“regulation” but the other does not.147 In still other cases, most notably the
confidentiality rule exception, neither agency adds to the word “law.”148
141. See, e.g., Cramton, Cohen & Koniak, supra note 26.
142. See Bernard W. Bell, Recalling the Lawyers: The NHTSA, GM, and the Chevrolet
Cobalt, 84 FORDHAM L. REV. 1899, 1917, 1918 (discussing proposed rules by the CPSC and
143. See supra notes 128–29.
144. See supra notes 48–58.
145. See infra notes 146–47.
146. Compare MODEL RULES OF PROF’L CONDUCT r. 3.5(b) (“A lawyer shall
not . . . communicate ex parte with [a judge or other official] during the proceeding unless
authorized to do so by law or court order.”), with 37 C.F.R. § 11.305(b) (2015) (USPTO)
(adding “rule”), and 32 C.F.R. § 776.44(a)(2) (JAG) (2015) (adding “regulation” after “law”
and “court order”).
147. Compare MODEL RULES OF PROF’L CONDUCT r. 4.2 (“In representing a client, a
lawyer shall not communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the lawyer . . . is
8. History and Experience
Several agency rules appear to be directly related to the particular history
or experience of that agency. Most obviously, the SEC’s Sarbanes-Oxley
Rules were a direct consequence of Enron, other corporate scandals, and the
concern that the SEC did not act aggressively enough to police lawyer
participation in financial fraud.149 Another rule that seems directly to
reflect an agency’s experience is EOIR’s unique prohibition on
“boilerplate” filings.150 In addition, both the SSA and VA Rules add to
their confidentiality provisions prohibitions on a lawyer’s disclosure of
information provided by the agency to the lawyer and the claimant
concerning the claim.151 Once again, however, this theory does not appear
to explain a large number of the agency rules, though a more detailed study
of the history of each agency’s rules might reveal more information
supporting this theory.
authorized to do so by law or a court order.”), with 37 C.F.R. § 11.402(a) (USPTO) (adding
“rule” after “law” and “court order”), and 32 C.F.R. § 776.50 (JAG) (leaving Model Rule
4.2 unchanged); compare MODEL RULES OF PROF’L CONDUCT r. 1.16(a)(
) (stating that “a
lawyer shall not represent a client . . . if . . . the representation will result in violation of the
rules of professional conduct or other law”), with 37 C.F.R. § 11.116(a)(
(leaving Model Rule 1.16(a)(
) unchanged in this respect), and 32 C.F.R. § 776.35(a)(
(JAG) (adding “regulation” after “law” and “court order”); compare MODEL RULES OF
PROF’L CONDUCT r. 3.5(a) (“A lawyer shall not . . . seek to influence a judge . . . or other
official by means prohibited by law.”), with 37 C.F.R. § 11.305(a) (USPTO) (leaving Model
Rule 3.5(a) unchanged in this respect), and 32 C.F.R. § 776.44(a)(
) (JAG) (adding
“regulation” after “law” and “court order”).
148. Compare MODEL RULES OF PROF’L CONDUCT r. 1.6(b)(6) (permitting a lawyer to
reveal confidential information “to comply with other law or a court order”), with 37 C.F.R.
§ 11.106(b)(6) (USPTO) (leaving Model Rule 1.6(b)(6) unchanged), and 32 C.F.R. § 776.25
(JAG) (declining to include the exception); compare MODEL RULES OF PROF’L CONDUCT r.
1.4(a)(5) (requiring a lawyer to “consult with the client about any relevant limitation on the
lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by
the Rules of Professional Conduct or other law”), with 37 C.F.R. § 11.104(a)(5) (USPTO)
(leaving Model Rule 1.4(a)(5) unchanged), and 32 C.F.R. § 776.23 (JAG) (declining to
include the rule); compare MODEL RULES OF PROF’L CONDUCT r. 1.7(b)(2) (allowing consent
to cure a concurrent conflict of interest if, among other things, “the representation is not
prohibited by law”), with 37 C.F.R. § 11.107(b)(2) (USPTO) (leaving Model Rule 1.7(b)(2)
unchanged), and 32 C.F.R. § 776.26 (JAG) (declining to include rule). Neither agency
adopts Model Rule 5.5(d)(2), allowing a lawyer not licensed in a jurisdiction to provide legal
services there if the services are ones “that the lawyer is authorized by federal or other law or
rule to provide in this jurisdiction.” MODEL RULES OF PROF’L CONDUCT r. 5.5(d)(2).
149. See generally Cramton, Cohen & Koniak, supra note 26, at 729–32 (discussing the
history of the SEC rules).
150. 8 C.F.R. § 1003.102(u) (2015) (EOIR/DHS) (subjecting to discipline a practitioner
who “[r]epeatedly files notices, motions, briefs, or claims that reflect little or no attention to
the specific factual or legal issues applicable to a client’s case, but rather rely on boilerplate
language indicative of a substantial failure to competently and diligently represent the
151. 20 C.F.R. § 404.1740(c)(5) (2015) (SSA) (stating that a representative must not
“[d]ivulge, without the claimant’s consent, except as may be authorized by regulations
prescribed by us or as otherwise provided by Federal law, any information we furnish or
disclose about a claim or prospective claim”); 38 C.F.R. § 14.632 (c)(
) (2015) (VA)
(stating that a representative must not “[d]isclose, without the claimant’s authorization, any
information provided by VA for purposes of representation”).
The rules governing lawyers who practice before federal agencies are an
important yet too often neglected part of the landscape of the law of
lawyering. State ethics rules recognize the tripartite structure of agencies as
mini governments, but mostly to delineate which of the “advocacy” rules
apply to these lawyers: all, when an agency acts in its adjudicative
capacity; some, when an agency acts in its legislative capacity; and none,
when an agency acts in its executive capacity. That approach leaves ample
room for agencies to fill in gaps with their own rules. Instead, agency rules
mostly address lawyers appearing before them in their adjudicative capacity
in ways that substantively duplicate state ethics rules.
Nevertheless, agency rules exhibit a great deal of variety. This variety
has multiple causes, none of which is dominant. The variety may be
benign, or even desirable, but it is not without cost. Perhaps the cost is not
great for lawyers, who tend to specialize in representation before one or a
limited number of related agencies. But the challenges may be greater for
law firms engaging in a broad regulatory practice, for state disciplinary
authorities and courts that may need to interpret multiple agency rules, and
for the agencies themselves for which the chaos may act as a barrier to
desirable coordination and streamlining.
Further study is needed to determine whether the agency rules are
effective and work well as currently structured. This Article has at least
begun the task of making these rules somewhat more accessible and
identifying some of their common themes. Perhaps the ABA, the ALI, or
the agencies themselves will find this project worth expanding.
LIST OF FEDERAL AGENCIES WITH RULES
GOVERNING PRACTICE BEFORE THE AGENCIES
(IN ALPHABETICAL ORDER)
LIST OF FEDERAL AGENCIES WITH RULES GOVERNING PRACTICE BEFORE THE AGENCIES (BY CODE TITLE)
Title 4: General Accountability Office
Title 7: Department of Agriculture (DOA)
Title 8: Executive Office of Immigration Review, Department of
Justice (EOIR); Department of Homeland Security (DHS)
Title 10: Nuclear Regulatory Commission (NRC); Defense
Nuclear Facilities Safety Board (DNFSB)
Title 12: Office of Comptroller of the Currency (OCC); Federal
Reserve Board (FRB); Federal Deposit Insurance Corporation
(FDIC); Office of Thrift Supervision (OTS); Farm Credit
Administration (FCA); National Credit Union Administration
(NCUA); Bureau of Consumer Financial Protection (BCFP);
Federal Housing Finance Agency (FHFA)
Title 13: Small Business Administration (SBA)
Title 14: Department of Transportation (DOT) (Aviation)
Title 16: Consumer Product Safety Commission (CPSC);
Federal Trade Commission (FTC)
Title 17: Commodity Futures Trading Commission (CFTC);
Securities and Exchange Commission (SEC)
Title 18: Federal Energy Regulatory Commission (FERC)
Title 19: International Trade Commission (ITC); International
Trade Administration (ITA)
Title 20: Social Security Administration (SSA)
Title 21: Drug Enforcement Administration (DEA)
Title 28: Department of Justice (DOJ)
Title 29: Department of Labor (DOL); National Labor Relations
Board (NLRB); Occupational Safety Health Review Commission
Title 31: Bureau of Alcohol, Tobacco & Firearms (BATF);
Internal Revenue Service (IRS); Office of Foreign Asset Control
Title 32: Judge Advocate General (JAG) (Navy)
Title 37: United States Patent & Trademark Office (USPTO)
Title 38: Veterans Affairs (VA)
Title 39: United States Postal Service (USPS); Postal Regulatory
Title 40: Chemical Safety and Hazard Investigation Board
(CSHIB); Environmental Protection Agency (EPA)
Title 43: Department of Interior (DOI)
Title 45: Foreign Claims Settlement Commission (FCSC)
Title 47: Federal Communications Commission (FCC)
TITLES OF AND CITES FOR FEDERAL AGENCY RULES
GOVERNING PRACTICE BEFORE THE AGENCIES
CHRONOLOGICAL LISTING OF AGENCIES WITH RULES
(BY ORIGINAL DATE OF ADOPTION)
80. See infra APPENDIX C. The most common term identifying the rules is “Rules of Practice” (fifteen agencies), followed by “Professional Conduct” (five), “Rules of Procedure” (three) and “Rules of Conduct” (two). But fewer than half of the agencies with rules use one or more of these terms to label their rules, including the IRS, which has one of the most detailed sets of rules.
81. 37 C.F.R. §§ 11 . 101 -. 111 ( 2015 ). For a complete list of the agencies discussed in this Article and their respective abbreviations, see infra APPENDIX A .
82. 32 C.F.R. §§ 776 . 18 -. 71 ( 2015 ).
83. The JAG Rules do contain preamble and principles sections, loosely related to the Model Rules preamble and scope sections . See 32 C.F.R. §§ 776 . 18 -.19; cf. 49 C.F.R . § 1103 .10 ( 2015 ) (“Introduction” to STB rules, providing that the rules do not relieve a lawyer from other applicable ethical duties).
84. 8 C.F.R. § 1003 .102 ( 2015 ).
85. Id . § 292 . 3(b). The DHS Rules simply incorporate the EOIR Rules, which is explained by the fact that both agencies split off from INS. I count them as separate agencies in this discussion but refer only to EOIR when giving examples .
86. 14 C.F.R. §§ 300 . 1 -. 20 ( 2015 ).
87. 20 C.F.R. § 404 .1740 ( 2015 ).
88. 31 C.F.R. §§ 10 . 22 -. 38 ( 2015 ) (Circular 230) .
89. 49 C.F.R. §§ 1103 . 10 -.35. These rules are based to some extent on the ABA's former Canons of Professional Ethics .
90. 17 C.F.R. §§ 205 . 1 -.7 ( 2015 ).
91. 12 C.F.R. § § 308.6(b)-.9 , 308 . 108 -. 109 , 390 .355( b ) ( 2015 ).
92. Id . §§ 509 .6( b )-. 9 , 513 .4( a ), 563 .180(b).
93. Id . §§ 19 .6( b )-. 9 , 109 .6( b )-. 9 , 19 .183( e ), 163 .180(b). For some reason, the OCC has two identical sets of Uniform Rules of Practice and Procedure .
94. Id . §§ 747 .6( b )-.9; id. § 747 .807( d ).
95. Id . §§ 263 . 6(b)-.9. Other rules governing lawyers located in Title 12 of the Code of Federal Regulations, which houses almost a quarter of the agencies having ethics rules (more than any other Title), include those of the Federal Housing Finance Agency, id . §§ 1209 . 13 - . 14 , §§ 1209 . 73 -.74; the Farm Credit Administration, id . §§ 622.3(b) , 622 .7( j ), 622 .105( d)(2); and the recently created Bureau of Consumer Financial Protection, id . §§ 1081 . 107 -. 110 .
96. See 12 C.F.R. §§ 19 . 1 -. 41 , 109 . 1 -.41 (OCC); 12 C.F.R. §§ 263 . 1 -.41 (FRB); 12 C.F.R. §§ 308 . 1 -.41 (FDIC); 12 C.F.R. §§ 509 . 1 -.41 (OTS); 12 C.F.R. §§ 747 . 1 -. 41 (NCUA).
97. For the Office of the Comptroller of the Currency, these rules are 12 C.F .R. § § 19.8 , 109 .8 (conflicts of interest); 12 C.F.R. § § 19.7 , 109 .7 (frivolous claims); 12 C.F.R. § § 19.9 , 109 .9 (ex parte contact ); 12 C.F.R. §§ 19 .6( b ), 109 .6 (b) (disruptive conduct).
98. The Federal Rules of Civil Procedure do not, for example, have a rule about conflicts of interest in litigation. Law governing that topic is left to the ethics rules and the courts' rulings on disqualification motions. Nor do the Federal Rules have a rule on disruptive or obstructionist conduct or ex parte communications, both of which are included in state ethics rules . See MODEL RULES OF PROF'L CONDUCT r. 3.5 (b) (ex parte contact), id . r. 3 . 5(d) (disruptive conduct). On the other hand , Federal Rule 11 and Model Rule 3 . 1 both address the issue of frivolous claims in similar ways, and both sets of rules cover some other topics, such as discovery abuse . FED. R. CIV. P. 11 ( b)(2) (discovery abuse); MODEL RULES OF PROF'L CONDUCT r. 3.1; id . r. 3 . 4(d) (discovery abuse). The federal agency rules on frivolous claims tend to track the language of Rule 11 rather than Model Rule 3.1 . See, e.g., 37 C.F.R. § 11 .301 ( 2015 ) (USPTO , tracking FED. R. CIV . P. 11 ). But see 32 C.F.R. § 776 .40 ( 2015 ) (JAG, tracking Model Rule 3 .1).
99. See , e.g., 12 C.F.R. §§ 263 . 91 -.94 ( FRB , Practice Before the Board); 12 C.F.R . § 513 . 4(a) (OTS, Practice Before the Office); 12 CFR § 563.180(b) (OTS); 12 C.F.R . § 19 . 183 (e) (OCC , Formal Investigations , Rights of Witnesses).
100. See 32 C.F.R. § 776 . 47 .
104. 37 C.F.R. § 11 .101 ( 2015 ).
105. 20 C.F.R. § 404 . 1740 (b)(2) ( 2015 ).
106. See 31 C.F.R. §§ 10 .22, 10 .34( d ), 10 .37 ( 2015 ).
107. 32 C.F.R. § 776 . 25(a)(2) ( 2015 ) ; see also id . § 776 . 25 (b) (elaborating on the type of information that must be disclosed ).
108. I found seven agencies with some kind of competence rule: 8 C.F .R. § 1003 .102( o ) ( 2015 ) (EOIR , DHS); 20 C.F.R. §§ 404 . 1740(a)(1), (b)(1), (b)(2), (b)(3)(i) (SSA); 10 C.F.R . §§ 10 .22, 10 .33( a)(2 ), 10 .34( d ), 10 .35, 10 .37 ( 2015 ) (IRS); 32 C.F.R . § 776 .20 (JAG); 11 C.F.R. §§ 11 .101, 11 .18 ( 2015 ) (USPTO); 38 C.F.R . § 14 . 632 (b)(1) ( 2015 ) (VA).
109. MODEL RULES OF PROF'L CONDUCT r. 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 .”).
110. See , e.g., 8 C.F.R. § 1003 . 102 (o) (EOIR). The rule adds to the text derived from Model Rule 1.1 the first sentence of Comment 5 to that rule, which states: “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners .” MODEL RULES OF PROF'L CONDUCT r. 1.1 cmt 5 .
111. See 38 C.F.R. § 14 . 632 (b)(1) (stating that competence for lawyers practicing before the VA “includes understanding the issues of fact and law relevant to the claim as well as the
132. Id . § 10 . 20(a)(3).
133. 20 C.F.R. § 1740 ( b)(1) ( 2015 ). This regulation was adopted to combat the practice of representatives withholding adverse evidence about the claimant's condition from the agency . See Thomas Katsiotas, Comment, The Last Days of Social Security Disability: How the Social Security Administration's Policies on the Submission of Adverse Evidence and Non-Attorney Representation Have Contributed to Its Institutional Failure, 63 BUFF. L. REV. 685 , 706 - 10 ( 2015 ).
134. 17 C.F.R. § 205 . 1 (“This part sets forth minimum standards of professional conduct for attorneys practicing before the Commission in the representation of an issuer .”).
135. The rules may apply to parties or their “inside” agents (e .g., partners in a partnership) but not to nonlawyer representatives . See, e.g., 32 C.F.R. § 776 .2( d ) ( 2015 ) (JAG); 8 C.F .R. § 1003 .101 ( 2015 ) (EOIR).
1610, § 1610 . 1 4 . CBCA: Contract Dispute Cases, Ex Parte Contact; Sanctions and Other Proceedings, 48 CFR Ch . 61 , Pt . 6101 , § 6101 . 33 5 . CPSC: Rules of Practice for Appellate Proceedings; Appearances, Standards of Conduct, 16 CFR Ch . 8 , Subch . A, Pt.
1025, §§ 1025 .66, 1025 . 68 6 . CFTC: Rules of Practice, General Provisions, 17 CFR Ch. I , Pt.
10, §§ 10 . 10 -.11; Rules Relating to Investigations, Rights of Witnesses, 17 CFR Ch. I , Pt. 11 , § 11 .7; Rules Relating to Reparations, General Information and Preliminary Consideration of Pleadings, 17 CFR Ch. I, Pt. 12 , Subpt . A, §§ 12 .7, 12 . 9; Rules Relating to Suspension or Disbarment from Appearance and Practice, 17 CFR Ch . I, Pt. 14 , §§ 14 . 2 -. 8 7 . DNFSB: Procedures for Safety Investigations, 10 CFR Ch .
XVII , Pt. 1708 , §§ 1708 . 109 -. 112 8. DOA: Departmental Proceedings, Representation Before the Department of Agriculture , 7 CFR Subt . A, Pt. 1, Supbt . B, § 1 .26; Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 , 12 CFR Subt . A, Pt.
1, Subpt . H; Rules of Practice Governing Formal Adjuicatory Proceedings Instituted by the Secretary Under Various Statutes, 12 CFR Subt. A, Pt . 1, Subpt . L, §§ 1 .151( b ), 1 .303, 1 .316, 1 .328( a ); Commodity Laboratory Testing Programs, Plant Variety and Protection, Attorneys and Agents, Professional Conduct, 7 CFR Subt . B, Ch . I, Subch . E, Pt. 97 , § 97 .157, Pt .
G , §§ 1003 . 102 -.103; Ch . V, Subch . B, Pt . 1292 , § 1292 . 3 17 . FCA: Rules Applicable to Formal Hearings, 12 CFR Ch . VI, Subch . B, Pt . 622 , Subpt . A; Rules and Procedures Applicable to Formal Investigations, Conduct of Investigation, §§ 622 .3, 622 .7; 12 CFR Ch. VI , Subch . B, Pt . 622 , Subpt . D, § 622 . 105 (d)(2) 18 . FCC: General Rules of Practice and Procedure; Parties, Practitioners, and Witnesses; Censure, Suspension, or Disbarment of Attorneys, 47 CFR Ch. I , Subch . A, Pt. 1, Subpt .
A , § 1 .24; Multichannel Video and Cable Television Service, Program Access Proceedings , 47 CFR Ch. I , Subch . C, Pt. 76 , Subpt . O, § 76 . 1003 (k) 19 . FDIC: Uniform Rules of Practice and Procedure, 12 CFR Ch .
III , Subch . A, Pt. 308 , §§ 308 . 6 -.9, 308 . 108 -. 109 , 308 .148, 390 .355( b ) 20 . FERC: Rules Relating to Investigations, Rights of Witnesses, 18 CFR Ch. I , Subch . A, § 1b .16; Appearance and Practice Before the Commission, 18 CFR Ch . I, Subch . X, Pt . 385 , Subpt . U, § 385 . 2101 21 . FHFA: Parties and Representation Practice Before the Federal Housing Agency; Rules of Practice and Procedure, 12 CFR Ch .
XII , Subch . A, Pt. 1209 , Subpt . C, §§ 1209 . 13 -.14; Standards of Conduct, 12 CFR Ch . XII, Subch . A, Pt. 1209 , Subpt . D §§ 1209 . 73 -. 74 22. FRB: Uniform Rules of Practice and Procedure, 12 CFR Ch . II, Subch . A, Pt. 263 , Subpt . A, §§ 263 . 6 -. 9; Practice Before the Board, Subpt . F, §§ 263 . 91 -. 94 23. FTC: Noncompliance with Compulsory Process, 16 CFR Ch . I, Subch . A, Pt. 2, Subpt . A, § 2 .13; Organization , Procedures and Rules of Practice, Miscellaneous Rules: Appearances, Ex Parte Communications, 16 CFR Ch. I , Subch . A, Pt. 4 , § § 4. 1 , 4 . 7 24 . FCSC: Rules of Practice, Appearance and Practice , 45 CFR Subt . B, Ch . V, Subch . A, Pt. 500 , § 500 . 4 25 . GAO: Rules of Procedure of the Government Accountability Office Contract Appeals Board, 4 CFR Ch. I, Subch . B, Pt . 22 , §§ 22 .8( j ), 22 .10, 22 . 27 .
26. IRS: Duties and Restrictions Relating to Practice Before the Internal Revenue Service, 31 CFR Subt . A, Pt. 10 , Subpt . B, §§ 10 . 22 -. 37 27. ITA: Information and Argument , 19 CFR Ch. III, Pt . 351 , §§ 351 .303(g)( 2 ), 351 .306( d ), 351 . 313 28 . ITC: Rules of General Applicability, 19 CFR Ch. II , Subch . C, Pt. 201 , § 201 .15; Pt. 210 , §§ 210 .2, 210 .4( c ), 210 .4( d )( 2 ), 210 .33( b ), 210 .34( c ) 29. JAG: Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, 32 CFR Subt . A., Ch . VI, Pt . 776 , §§ 776 . 18 -. 71 30. NCUA: Uniform Rules of Practice and Procedure , 12 CFR Ch.
VII , Subch . A, Pt. 747 , Subpt . A, §§ 747 . 6 -.9; Local Rules Applicable to Formal Investigative Proceedings, Rights of Witnesses, Ch. VII, Subch . A, Pt. 747 , Subpt . I, § 747 .807( d ) 31. NHTSA: Adjudicative Procedures: Appearances; Standards of Conduct, 49 CFR Subt . B, Ch . V, Pt . 511 , §§ 511 .76, 711 . 78 32 . NLRB: Misconduct by Attorneys or Party Representatives, 29 CFR Subt . B, Ch . I, Pt. 102 , Subpt . W, § 102 . 177 33 . NTSB: Rules of Practice in Air Safety Proceedings , Ex Parte Communications, 49 CFR Subt . B, Ch . VIII, Pt . 821 , Subpt . J, §§ 821 . 60 -. 63 34. NRC: Agency Rules of Practice and Procedure, Rules of General Applicability, 10 CFR Ch . 1 , Pt. 2, Subpt . C, §§ 2 . 314 , 2 .347; Subpt . O, § 2 . 1509 35 . OSHRC: Rules of Procedure, Parties and Representatives, Appearances and Withdrawals , 29 CFR Subt . B, Ch . XX, Pt.
2200, Subpt . B, § 2200 .23; Rules of Procedure, Miscellaneous Provisions, 29 CFR Subt . B, Ch . XX, Pt . 2200 , Subpt . G §§ 2200 . 104 -. 105 36. OCC: Uniform Rules of Practice and Procedure , 12 CFR Ch. I , Pt. 19 , Subpt . A, §§ 19 . 6 -.9; Formal Investigations , Rights of Witnesses, 12 CFR Ch. I, Pt. 19 , Subpt . J, § 19 .183(e); Rules of Practice and Procedure in Adjudicatory Proceedings, Uniform Rules of Practice and Procedure , 12 CFR Ch. I , Pt. 109 , §§ 209 . 6 -. 9; 12 CFR § 163.180(b) 37. OFAC: Appearance and Practice , 31 CFR Subt . B, Ch . V, Pt.
501, Subpt . D, § 501 .704( d ) 38. OTS: Uniform Rules of Practice and Procedure , 12 CFR Ch . V, Pt . 509 , Subpt . A, §§ 509 . 6 -. 9; Practice Before the Office , 12 CFR Ch . V, Pt . 513 , §§ 513 .4( a ), 563 .180( b ) 39 . PRC: Rules of Practice and Procedure, Rules of General Applicability, 39 CFR Ch . III, Subch . A, Pt. 3001 , Subpt . A, § 3001 .6( e ) 40. SEC: Standards of Professional Conduct for Attorneys Appearing and Practicing Before the Commission in the Representation of an Issuer, 17 CFR Ch . II, Pt. 205; Appearance and Practice Before the Commission , 17 CFR § 201 .102( e ) 41. SBA: Rules of Procedure Governing Cases Before the Office of Hearings and Appeals , Rules of Practice, 13 CFR Ch. I, Pt. 134 , Subpt . B, §§ 134 .209, 134 .219, 134 . 220 42 . SSA: Rules of Conduct and Standards of Responsibility for Representatives, 20 CFR § 404.1740 43. STB: Canons of Ethics , 49 CFR Subt . B, Ch . X, Subch . B, Pt .
1103, Subpt . B, §§ 1103 . 10 -. 35 44. USPTO: Rules of Professional Conduct, 37 CFR Ch. I , Subch.
A , Pt. 11 , Subpt . D, §§ 11 . 101 -. 901 45. USPS: Rules of Practice Before the Postal Service Board of Contract Appeals, 39 CFR Ch. I, Subch . N, Pt. 955 , §§ 955 .33, 955 . 34 46 . VA: Standards of Conduct for Persons Providing Representation Before the Department , 38 CFR § 14 . 632