Rules Governing Misconduct by Attorneys or Party Representatives

NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102

Rules Governing Misconduct by Attorneys or Party Representatives

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The National Labor Relations Board issues a final rule

modifying its current rules governing misconduct by attorneys and party

representatives.

EFFECTIVE DATE: January 13, 1997.

FOR FURTHER INFORMATION CONTACT: John J. Toner, Executive Secretary,

National Labor Relations Board, 1099 14th Street, NW, Room 11600,

Washington, DC 20570. Telephone: (202)273-1940.

SUPPLEMENTARY INFORMATION: In a notice of proposed rulemaking (NPR)

published on May 20, 1996 (61 FR 25158), the Board proposed various

[[Page 65324]]

changes to Sec. Sec. 102.44 and 102.66(d) of its rules governing

misconduct by attorneys and party representatives at unfair labor

practice and representation hearings, respectively. The proposed

changes consolidated the current misconduct rules into a single rule,

revised the rules to cover misconduct at any and all stages of any

Agency proceeding, attempted to clarify the types of misconduct covered

by the revised rule by substituting the phrase ``misconduct, including

unprofessional or improper behavior'' for the current phrase,

``misconduct of an aggravated character,'' and set forth the procedures

for processing allegations of misconduct. In addition, the proposed

rule revised Sec. 102.21 of the Board's rules governing the filing of

answers to unfair labor practice complaints to make that section's

disciplinary provisions applicable to non-attorney party

representatives as well as attorneys.

The Board received 11 comments in response to the NPR. Those

submitting comments included the NLRA Practice and Procedure Committee

of the American Bar Association (ABA) Labor and Employment Law Section

(hereafter ABA Practice and Procedure Committee),\1\ seven management-

side law firms or attorneys, one union-side attorney,\2\ and two labor

organizations (AFL-CIO and UAW). Many of the comments were extensive

and stated a number of objections to the proposed rule changes or

offered suggestions as to ways to improve the rule. These objections or

suggestions are addressed by subject matter below.

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\1\ The comments of the ABA Practice and Procedure Committee

were submitted by James J. Brady and Victor Schachter, the Union and

Management Co-Chairs, respectively, of the ABA Practice and

Procedure Committee's Subcommittee on Unauthorized Practice.

\2\ The comment submitted by the union-side attorney (Victor J.

Van Bourg of Van Bourg, Weinberg, Roger & Rosenfeld) did not address

the substance of the proposed changes, but simply urged that the

changes not be applied retroactively. The provisions set forth in

the instant final rule, to the extent they are inconsistent or

constitute a change from the current rule and/or practice, will

operate prospectively only.

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I. Scope of Rule

The Board's current misconduct rules are unlike the misconduct

rules adopted by many other Federal agencies in that they apply only to

misconduct at hearings. As indicated above, the Board's NPR proposed

that the rules be extended to cover misconduct at any and all stages of

any Agency proceeding, including the investigative, pre-hearing and/or

compliance stages of a representation or unfair labor practice

proceeding. As explained in the NPR, the purpose of this change was to

provide the Board with the same authority held by other Federal

agencies to take appropriate and effective disciplinary action against

attorneys or other representatives who have engaged in misconduct

occurring outside of hearings. As noted in the NPR, because the current

rule lacks such a provision, the Board in the past has been unable to

impose such discipline, and instead has been forced to request the

applicable state bar to investigate and process such allegations. See,

e.g., Townsend Mfg. Co., 317 NLRB 1169 (1995) (Board referred to state

bar allegation that attorney suborned perjury during pre-complaint

investigation of unfair labor practice charge).

Six of the 11 comments filed in response to the NPR specifically

addressed this aspect of the proposed rule. Of these, three (filed by

the ABA Practice and Procedure Committee, the AFL-CIO, and the UAW)

supported the change, and three (filed by management law firms

Seyfarth, Shaw, Fairweather & Geraldson and Semler & Pritzker; and

attorney Martin L. Garden) opposed it. The ABA Practice and Procedure

Committee, the AFL-CIO, and the UAW all stated that they generally

favored extending the rule beyond the hearing stage as proposed, and

recommended that this be made even more explicit in the rule. The three

management law firms opposing the change, on the other hand, argued

that extending the rule to the pre and post-hearing stages, combined

with the ``vague'' and ``nebulous'' proposed new language or standard

for suspension or disbarment, could lead to attempts to intimidate

party representatives during the investigative or preliminary stages of

unfair labor practice or representation proceedings and chill

aggressive or vigorous representation of clients.

Having carefully considered these comments, we have decided to

retain this change in the final rule. In reaching this decision, we

have been particularly influenced by the favorable comment submitted by

the bipartisan ABA Practice and Procedure Committee. Further, as

discussed below, we have decided not to retain the new language or

standard for suspension or disbarment proposed in the NPR. Thus, we

anticipate that, to the extent that proposed new language or standard

was the primary or major source of the concerns expressed by those

opposing the proposed extension of the rule, those concerns will be

allayed. Finally, as noted above, modifying the Board's misconduct rule

in this regard will conform it to the rules issued by numerous other

Federal agencies which are not limited to misconduct occurring at

hearings. See Federal agency rules discussed, infra.

Accordingly, the proposed extension of the rule is retained in the

final rule. As suggested, we have also made this change even more

explicit in the rule.

II. Standard for Discipline

As indicated above, the Board's NPR proposed that the phrase,

``misconduct, including unprofessional or improper behavior,'' be

substituted for the current phrase, ``misconduct of an aggravated

character.'' As indicated in the NPR, the intent of this proposal was

to clarify to some extent the current language which had been

criticized by some in the past as awkward or confusing. As emphasized

in the NPR, the intent was not to make any substantive change in the

current standard for imposing suspension or disbarment, and the Board

would continue to consider both aggravating and mitigating

circumstances in determining the appropriate sanction.

The comments submitted in response to the NPR indicate that the

Board's attempt to clarify the rule in this respect was not generally

well received, despite the Board's assurances that the clarification

was not meant to make any substantive change. Thus, the ABA Practice

and Procedure Committee and all of the management-side law firms or

attorneys submitting comments strongly opposed the proposal on the

ground that the proposed new language was vague and undefined and/or

because it appeared to lower the current standard for suspension or

disbarment by deleting the phrase ``of an aggravated character.'' The

ABA Practice and Procedure Committee therefore urged that the Board

retain the current standard, or, at a minimum, more clearly define what

the new standard entails.

The AFL-CIO and UAW did not explicitly oppose the proposed new

language or urge the retention of the current language, but likewise

argued that the proposed new rule needed to be clarified. Thus, for

example, the AFL-CIO argued that the Board should alert practitioners

that certain conduct would be subject to discipline by including a non-

exhaustive, illustrative list of the types of activities that would be

subject to the rule.

In addition, both the AFL-CIO and the UAW offered specific

suggestions as to what type of conduct should be included. Thus, the

UAW argued that the rule should make clear that counseling or actively

participating in the commission of an unfair labor practice would be

subject to discipline.

[[Page 65325]]

And while the AFL-CIO took no position on whether all unfair labor

practices or violations of the Board's rules should be covered, it

similarly argued that certain unfair labor practices or violations of

the Board's rules should be subject to discipline, including violations

of the Act or the Board's rules that relate to and would undermine the

integrity of the Board's processes or where the representative's

participation in a professional capacity was necessary to carry out the

unlawful conduct. Specific examples offered by the AFL-CIO included:

counseling parties to resist compliance with a valid subpoena in the

absence of any valid objections thereto; aiding or assisting employers

in committing violations of Section 8(a)(4) of the Act; aiding or

assisting employers in committing certain Sec. 8(a)(1) violations, such

as interrogating employees in preparing a defense to a complaint

without following the safeguards set forth in Johnnie's Poultry, 146

NLRB 770 (1964), and requesting employees to provide copies of

statements given to the Board; assisting employers in filing non-

meritorious or preempted retaliatory lawsuits against employees or

unions and attempting to conduct discovery in such proceedings to

obtain information that could not otherwise be obtained in Board

proceedings, such as the names of employees who attend organizational

meetings, authorization cards, organizing documents, or Board

affidavits; and conduct which violates the Board's rules governing the

formal election process, including misconduct which protracts the

representation hearing and objectionable conduct that necessitates a

second election.

In view of the foregoing comments, which as indicated largely

opposed the change, we have decided to reconsider the Board's original

proposal in this regard. The Board's original proposal was based on two

assumptions: (1) That the phrase ``of an aggravated character'' in the

current rule sometimes caused confusion as to whether certain conduct

was subject to suspension or disbarment, as opposed to lesser

discipline such as a reprimand; and (2) that clarification would also

be helpful in view of the proposal to extend the rule to cover

misconduct occurring outside of hearings. Based on these assumptions,

the Board reviewed the various types of misconduct rules issued by

other agencies and decided to propose a minor modification to the

language in the hope that this would provide some clarification and

would be more understandable to practitioners. As indicated above and

in the discussion accompanying the proposed rule, there was no intent

to make any substantive change to the current standard.

However, as noted, virtually all of the comments expressed

opposition to the Board's proposed new language on the ground that it

was vague and undefined and appeared to lower the current standard.

Moreover, a few also specifically questioned the Board's underlying

assumptions. Thus, Jackson, Lewis, Schnitzler & Krupman, one of the

management law firms submitting comments, argued that the current

language is in fact clearly understood by practitioners and should be

retained. As indicated above, the ABA Practice and Procedure Committee

also urged the Board to retain the current language.

Having carefully considered these comments, we conclude that the

proposed new language, ``misconduct, including unprofessional or

improper behavior,'' rather than bringing greater clarity, would, at

least in the short run, actually cause more confusion among

practitioners. Although the Board took pains to emphasize in the

discussion accompanying the proposed rule that it was not attempting to

make any change in the standard by substituting this language for

``misconduct of an aggravated character,'' and that it would continue

to consider both aggravating and mitigating circumstances in imposing

discipline, it is obvious from the comments received that deletion of

the phrase ``of an aggravated character'' from the rule is unlikely to

gain widespread public understanding, acceptance or approval.

Accordingly, we have decided not to adopt that proposal in the final

rule. Further, as it appears that the current language is understood

and accepted by practitioners, we have decided to retain the current

language as urged by the ABA Practice and Procedure Committee.

However, for the reasons set forth in the NPR, and particularly in

light of the other changes that are being proposed to extend the scope

of the rules to cover misconduct outside hearings, we continue to

believe that some clarification of the current rule would be helpful in

order to provide guidance in future cases arising under the newly

revised rule.

The question therefore remains as to the best way to clarify the

rule. A review of the disciplinary rules issued by other agencies

indicates that there are essentially three different alternatives

available to the Board. The first alternative, and the one adopted by

the Board in the NPR, is to attempt to define ``misconduct'' by the use

of certain familiar adjectives. This approach has been adopted by the

Securities and Exchange Commission (SEC) and the Commodity Futures

Training Commission (CFTC). See 17 CFR 201.102(e)(providing that SEC

may suspend or disbar any person found to have engaged in ``unethical

or improper professional conduct''); and 17 CFR 10.11(b)(providing that

CFTC may suspend or disbar any person found to have engaged in

``unethical or improper unprofessional conduct either in the course of

an adjudicatory, investigative, rulemaking or other proceeding before

the Commission or otherwise'').

A second alternative is to reference the standards of ethical

conduct applied by the bars and/or courts, and require practitioners to

conform to those standards.\3\ This alternative, either by itself or in

conjunction with the first alternative, has been adopted by the Federal

Communications Commission (FCC), Federal Trade Commission (FTC),

Federal Energy Regulatory Commission (FERC), and Department of

Transportation (DOT). See 47 CFR Sec. 1.24 (providing the FCC may

suspend or disbar any person who has ``failed to conform to standards

of ethical conduct required of practitioners at the bar of any court of

which he is a member;'' and/or displays conduct which if displayed

toward any court of the United States would be cause for such

discipline); 16 CFR 4.1(e)(providing that ``all attorneys practicing

before the [FTC] shall conform to the standards of ethical conduct

required by the bars of which the attorneys are members'' and that the

Commission may suspend or disbar any attorney who ``is not conforming

to such standards, or * * * has been otherwise guilty of conduct

warranting disciplinary action''); 18 CFR 385.2012 (providing that any

person appearing before FERC ``must conform to the standards of ethical

conduct required of practitioners before the Courts of the United

States,'' and that the Commission may suspend or disbar any person

found to have engaged in ``unethical or improper professional

conduct''); and 14 CFR 300.1, 300.6 and 300.20 (providing that ``every

person representing a client in matters before DOT and in all contacts

with DOT employees shall strictly observe the standards of professional

conduct,'' that the rules of conduct set forth by DOT ``are to be

interpreted in light of those standards,'' and that DOT may temporarily

or permanently suspend from practice before it any person found to have

engaged in ``unethical or improper professional conduct'').

The third alternative is to include an illustrative list of

activities or conduct

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that would warrant discipline. This alternative, which is essentially

the alternative suggested by the AFL-CIO, has been adopted by the

Immigration and Naturalization Service (INS), and the Internal Revenue

Service (IRS). See 8 CFR 292.3 (INS); 31 CFR 10.51 (IRS).

As indicated above, in light of the comments received in response

to the NPR, we have decided to abandon the first alternative. Although

we do not believe that that alternative is an unreasonable or invalid

one,\4\ given the negative reaction to the Board's original proposal,

we will no longer pursue that alternative and will turn to the other

two alternatives.

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\4\ Indeed, we note that the SEC's rule, which as indicated

above the proposed new language was largely modeled after, has been

in existence for over half a century and has never been held invalid

by any court. See Sheldon v. SEC, 45 F.3d 1515 (11th Cir. 1995);

Davy v. SEC, 792 F.2d 1418, 1421-1422 (9th Cir. 1986); and Touche

Ross & Co., v. SEC, 609 F.2d 570, 578 (2d Cir. 1979).

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In our view, the second alternative is the better of the two

remaining approaches. Although the third alternative has the obvious

advantage of providing clear notice that the conduct included in the

list would be subject to discipline, it also has obvious disadvantages.

For example, because such a list is non-exhaustive, it may lead

practitioners to conclude that conduct that is not included in the list

is not subject to discipline. In such circumstances, if a case

subsequently arose involving conduct that was not included in the list,

the attorney or other representative could argue that the Board had

failed to provide sufficient notice that the conduct was subject to

discipline, and indeed had suggested that the conduct was not

considered inappropriate or sufficiently serious to warrant discipline

by failing to mention it in the list.

Moreover, in our view the advantages of the second alternative

outweigh the advantages of the third. Clearly, the standards of ethical

conduct adopted by the bars and courts are standards with which

attorneys are familiar. Further, they are standards which have guided

the Board in past cases arising under the current rule involving

hearing misconduct. See, e.g., Joel Keiler, 316 NLRB 763, 765-767

(1995) (citing ABA Model Rules for Lawyer Disciplinary Enforcement and

cases applying ABA Model Code of Professional Responsibility and state

rules of professional conduct); Sargent Karch, 314 NLRB 482, 486-487

(1994) (citing ABA Standards for Imposing Lawyer Sanctions); and Roy T.

Rhodes, 152 NLRB 912, 917 (1965) (citing ABA Canons of Professional

Ethics). See also Rowland Trucking Co., 270 NLRB 247 n.1 (1984) (Board

cited ABA Model Code of Professional Responsibility in condemning

conduct of respondent's counsel). Thus, by referring to such standards

in the new rule, it would be made clear in the rule that the Board

intends to continue following those standards in future cases involving

misconduct occurring outside as well as inside hearings.

We recognize that there are those who believe that some aspects of

such standards of ethical conduct are themselves too vague. Indeed, for

this reason, Haynsworth, Baldwin, Johnson and Greaves (hereafter

``Haynsworth, Baldwin''), one of the management law firms submitting

comments, specifically urged the Board not to adopt Rule 8.4(d) of the

Model Rules of Professional Conduct or DR1-102(A)(5) of the Model Code

of Professional Responsibility, which state that it is professional

misconduct for an attorney to ``engage in conduct that is prejudicial

to the administration of justice.''

Further, as indicated in the NPR, unlike the courts, the Board does

not require that all those who appear as party representatives before

the Board be attorneys. See Secs. 102.38 and 102.66 of the Board's

Rules and Regulations. Non-attorneys, of course, may not be as familiar

with such ethical standards as attorneys. Thus, it could be argued that

nonattorney party representatives should not be held to the same

ethical standards applicable to attorneys.

However, neither of these arguments carries substantial weight in

our view. The standards of ethical conduct applicable to attorneys have

been well defined over the years in a wealth of caselaw applying those

standards to a wide variety of situations. This is true not only with

respect to the more specific provisions of such rules, but also with

respect to broader provisions such as those prohibiting lawyers from

engaging in conduct that is ``prejudicial to the administration of

justice.'' Although such provisions are frequently criticized and have

not been adopted by a few jurisdictions such as New Hampshire on the

ground that they are too vague and/or overbroad, as indicated above

such a provision was included in the Model Rules of Professional

Conduct adopted by the ABA House of Delegates in 1983. Further, such

provisions have generally been upheld by the courts. See ABA/BNA

Lawyers' Manual on Professional Conduct (1996)(hereinafter ``Lawyers'

Manual'') at 101:501, and cases cited there. See also Howell v. State

Bar, 843 F.2d 205, 208 (5th Cir.), cert denied 488 U.S. 982

(1988)(holding that the phrase ``prejudicial to the administration of

justice'' is neither overbroad nor vague on its face as case law, court

rules, and the ``lore of the profession'' provide sufficient guidance).

Nor do we believe it unfair or unjust to hold nonattorney party

representatives to the same standards as attorneys who appear and

practice before the Agency. Indeed, the Board currently does so under

its current ``aggravated'' misconduct standard, and has previously

disciplined nonattorney representatives under that standard. See, e.g.,

Herbert J. Nichol, 111 NLRB 447 (1955)(suspending union's

representative for six months for threatening decertification

petitioner during recess in hearing). Although as noted above

nonattorney representatives may not be as familiar with the standards

of ethical conduct applied to attorneys by the bars and courts, we do

not believe that this warrants the application of a different standard

to such representatives. The primary purpose of disciplinary rules is

to protect the integrity of the adjudicatory and administrative

process, including the rights of parties, witnesses, and other

participants. Were we to permit nonattorney party representatives to

engage in conduct which would be prohibited if engaged in by attorneys,

we would, in effect, be sanctioning conduct that undermines that

process and may also prejudice or otherwise harm the parties and other

participants. Like other agencies, we therefore have little hesitancy

in requiring nonattorney party representatives to familiarize

themselves with the standards of conduct applicable to attorneys and to

comply with those standards. Cf. 18 CFR 385.2101 (requiring any person

who appears before the FERC, which may include attorneys and other

qualified representatives, to conform to the standards of ethical

conduct required of practitioners before the courts).\5\

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\5\ In so finding, we do not mean to suggest that there may

never be any circumstances where a nonattorney representative's lack

of understanding of or experience with such standards might

appropriately be taken into account as a mitigating factor in

determining the appropriate discipline. However, as a general

matter, we believe it appropriate to apply the same standards to

nonattorney representatives as we do to attorneys. Indeed, it is for

this reason that the Board also proposed in the NPR to revise Sec.

102.21 of the Board's rules to subject nonattorney's to the same

requirement and sanctions as attorneys with respect to the filing of

answers. As discussed, infra, we have decided to also adopt that

proposed change in the final rule.

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Accordingly, for all the foregoing reasons, we decline to adopt the

third

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approach suggested by the AFL-CIO,\6\ and instead adopt the second

approach followed by such agencies as the FCC, FTC, FERC and DOT by

adding a provision at the beginning of the rule referencing the

standards of ethical and/or professional conduct applicable to

practitioners before the courts.

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\6\ We therefore also decline to address herein the suggestion

made by the AFL-CIO and the UAW that some or all violations of the

NLRA by attorneys or other representatives should be subject to

disciplinary sanction under the Board's misconduct rules. We note,

however, that the Board's misconduct rules have not in the past been

used as an enforcement tool under the NLRA, and it was not, and is

not, our intent in revising the rule to signal any change in this

past practice. By the same token, however, it is also not our intent

herein to preclude the Board in some future case from suspending

and/or disbarring an attorney or other representative for aggravated

misconduct simply because that conduct might also constitute an

unfair labor practice. We leave this issue to be decided by the

Board on a case-by-case basis. Similarly, by declining to adopt a

non-exclusive list of activities or conduct warranting discipline,

we do not express a view as to whether the conduct contained in the

AFL-CIO's proposed list would justify discipline. These issues are

also appropriate for case-by-case resolution.

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As indicated above and in the rule, the purpose of adding this

provision is to codify the practice under the current rule and thereby

make clear that the Board will continue to be guided by such standards

of ethical and/or professional conduct in applying the new, revised

rule. As in past cases arising under the current rule, such

``standards'' may include the ABA Model Rules of Professional Conduct

(and/or any other standards adopted by the ABA in the future),\7\

applicable state bar rules, and court decisions applying such rules.

See cases cited, supra.

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\7\ As indicated above, the ABA replaced the Model Code of

Professional Responsibility with the Model Rules of Professional

Conduct in 1983. The Model Rules have since been adopted in whole or

in part by the vast majority of the states. See Lawyers' Manual at

01:301. See also id. at 01:3 (listing 42 states that have adopted

Model Rules as amended).

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As with the Board's original proposal, we emphasize that the

purpose of adding this provision is not to change the standard for

imposing discipline. Indeed, as indicated above, we have decided to

retain the current language which states that only ``misconduct of an

aggravated character'' will subject an attorney or representative to

suspension or disbarment. Nor is it the Board's intent in adding this

provision to thereby suggest or imply that the Agency will take

disciplinary action with respect to any and all alleged violations of

each and every provision of such professional or ethical standards.

Obviously, in determining whether to take disciplinary action in a

particular case the Agency will take into consideration the alleged

misconduct's actual or potential adverse impact on the administrative

process. In those circumstances where the alleged conduct has little or

no such impact, rather than take action under the Board's own

misconduct rules, the Agency may refer the allegations to the

appropriate state bar association for disciplinary action. See NLRB

Notice of establishment of a Privacy Act system of records for Agency

Disciplinary Case Files, 58 FR 57633 (Oct. 26, 1993), as amended 61 FR

13884 (March 28, 1996) (providing that Agency may refer misconduct

files to a bar association or similar Federal, state, or local

licensing authority where the record or information indicates a

violation or potential violation of the standards of professional

conduct established or adopted by the licensing authority).\8\

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\8\ The Agency, of course, also reserves the right, and indeed

has the obligation, to refer cases involving actual or potential

violations of federal law to other agencies and the Department of

Justice for prosecution where appropriate. See id.

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Accordingly, under the final rule which we have adopted, the first

four paragraphs of the revised rule will read as follows:

(a) Any attorney or other representative appearing or practicing

before the Agency shall conform to the standards of ethical and

professional conduct required of practitioners before the courts,

and the Agency will be guided by those standards in interpreting and

applying the provisions of this section.

(b) Misconduct by any person at any hearing before an

administrative law judge, hearing officer, or the Board shall be

grounds for summary exclusion from the hearing. Notwithstanding the

procedures set forth below for handling allegations of misconduct,

the administrative law judge, hearing officer, or Board shall also

have the authority in the proceeding in which the misconduct

occurred to admonish or reprimand, after due notice, any person who

engages in misconduct at a hearing.

(c) The refusal of a witness at any such hearing to answer any

question which has been ruled to be proper shall, in the discretion

of the administrative law judge or hearing officer, be grounds for

striking all testimony previously given by such witness on related

matters.

(d) Misconduct by an attorney or other representative at any

stage of any Agency proceeding, including but not limited to

misconduct at a hearing, shall be grounds for discipline. Such

misconduct of an aggravated character shall be grounds for

suspension and/or disbarment from practice before the Agency and/or

other sanctions.

III. Procedures

Several of the comments also addressed the procedures the Board

proposed in the NPR for processing allegations of misconduct. The

issues raised by those comments are addressed below.

A. General Counsel's Prosecutorial Authority

In its original proposal, the Board proposed to delegate to the

General Counsel the unreviewable authority to decide whether to

initiate disciplinary proceedings against an attorney or other

representative by issuing a disciplinary complaint. Two of the comments

(filed by management law firm Semler & Pritzker and attorney Ronald L.

Mason of Emens, Kegler, Brown, Hill & Ritter) objected to this proposal

on the ground that giving the General Counsel such authority would

enable the General Counsel to intimidate a respondent's counsel by

threatening disciplinary prosecution.

Although we have carefully considered these comments, we have

decided to retain the original proposal in the final rule. We recognize

that the decision whether to institute disciplinary proceedings (i.e.

the decision to issue a notice to show cause why disciplinary sanctions

should not be imposed or to order a disciplinary hearing) has in the

past rested with the Board rather than the General Counsel, and that

the proposal to delegate such unreviewable authority to the General

Counsel constitutes a change in that practice. However, we are not

persuaded that this change would give birth to the kind of abuse

suggested. Certainly nothing in the past history of misconduct cases

suggests that such abuse would occur. Indeed, although the Regional

Directors and General Counsel have always had the authority to

recommend disciplinary action to the Board, they have only infrequently

done so. Further, no example is cited, and we are aware of none, where

a Regional Director or the General Counsel has in the past recommended

disciplinary action to the Board without a substantial basis and/or to

intimidate or retaliate against opposing counsel.

Moreover, although the Board in the past has made the decision

whether to hold a disciplinary hearing, the General Counsel has

normally served as the prosecutor at any such hearing ordered by the

Board. See, e.g., Cherry Hill Textiles, Inc.(Stuart Bochner), 318 NLRB

396 (1995); Sargent Karch, supra; and Roy T. Rhodes, supra. Thus, to

the extent the objections to the proposal are based on concerns over

the General Counsel prosecuting the disciplinary action, this has

always been the standard practice.

In addition, we have made clear in the rule that the final

determination on whether to institute disciplinary

[[Page 65328]]

proceedings shall be made by the General Counsel in Washington, D.C.,

and not by the Regional Director or Regional personnel who may have

handled the underlying unfair labor practice or representation

proceeding. Thus, to the extent objections to the proposal may question

the propriety of Regional personnel having authority to make this

determination, this concern is unfounded.

Finally, although the General Counsel will now have the authority

under the proposed rule to initiate such disciplinary proceedings, the

General Counsel will not have the authority to determine the

appropriate sanction. As in the past, although the General Counsel may

recommend the appropriate sanction, the administrative law judge and/or

the Board will continue to make the determination as to what sanction,

if any, is appropriate.

Accordingly, for all the foregoing reasons, and taking into account

that no objection to this aspect of the proposal was made by the ABA

Practice and Procedure Committee or in the other eight comments, we

have decided to adopt the proposed provision delegating to the General

Counsel the authority to initiate formal disciplinary proceedings in

the final rule.

B. Investigatory Powers and Procedures

Three of the comments also recommended certain changes to the

proposed rule with respect to the disciplinary investigation. Thus, the

ABA Practice and Procedure Committee and the UAW recommended that a

provision be added to the proposed rule to make clear that the General

Counsel shall have the usual powers of investigation under Section 11

of the Act. In addition, the ABA Practice and Procedure Committee and

one of the management law firms (Haynsworth, Baldwin) recommended that

a provision be added that the subject attorney or other representative

shall be given notice and an opportunity to respond prior to the

General Counsel's issuance of any disciplinary complaint.

Having carefully considered these comments, we have decided to

adopt both recommendations. With respect to the first, it could be

argued that such a provision is unnecessary given that the Board's

original proposal already includes a provision stating that

Secs. 102.24 to 102.51 of the Board's rules governing unfair labor

practice proceedings will apply to disciplinary proceedings to the

extent consistent, and thus already effectively incorporates

Sec. 102.31 of the Board's rules regarding issuance of subpoenas both

prior to and during the hearing. However, in order to avoid any later

uncertainty in this regard, we have decided to include an additional

provision as recommended by the ABA Practice and Procedure Committee

and the UAW clearly stating that the General Counsel will have the

usual investigatory powers under Section 11 of the Act.

With respect to the second recommendation, we note that pre-

complaint notice and opportunity to respond is a routine part of the

General Counsel's investigative process. Moreover, it appears that such

notice is provided by Rule 11.B(2) of the ABA Model Rules for Lawyer

Disciplinary Enforcement (see Lawyers' Manual at 01:611), by either

rule or practice in most jurisdictions (See id. at 101:2101-2104), and

by at least one other Federal agency (see IRS Rules and Regulations, 31

CFR 10.54). Thus, while it may be unnecessary to specifically include

it, we have decided to include such a provision in the proposed rule,

as recommended in the comments.

Accordingly, based on the recommendations of the ABA Practice and

Procedure Committee and other comments, and for all the reasons set

forth above, we have added provisions to the final rule providing that

the General Counsel will have the usual powers of investigation under

Section 11 of the Act, and that the subject attorney or representative

shall be given notice and an opportunity to respond to the allegations

prior to issuance of any disciplinary complaint.

C. Statute of Limitations

No limitations period was set forth in the Board's original

proposal for bringing the allegations of misconduct. In its comments on

the Board's NPR, one of the management law firms (Haynsworth, Baldwin)

suggested that some limitations period be fixed for such proceedings in

the rule, as the passage of time could affect the fundamental fairness

of the proceedings.

Although we have carefully considered this recommendation, we

decline to adopt it. There is no contention, nor could there be, that

the six-month limitations period established in Section 10(b) of the

Act applies to the Agency's disciplinary proceedings, since that

section is applicable by its terms only to unfair labor practice

proceedings. See Annotation, Delay in Disciplinary Proceedings, 93

ALR3d 1057 (1979)(statute of limitations is inapplicable to

disciplinary proceedings unless it is specifically made applicable to

such proceedings by its terms). Further, inasmuch as the purpose of

such disciplinary proceedings is to protect the Agency's processes and

the public, we find, in agreement with Rule 32 of the ABA Model Rules

for Lawyer Disciplinary Enforcement and most jurisdictions, that no

statute of limitations should apply. See Lawyers' Manual at 01:628 and

101:2113.9

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\9\ This is not to suggest, however, that there would never be

any circumstances where significant delay would be considered by the

Board as a defense or mitigating factor in determining the

appropriate discipline. See Lawyers' Manual at 101:2113. We simply

find, in agreement with the ABA Model Rules and most jurisdictions,

that there should be no absolute time limitation in all cases.

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Accordingly, as in the original proposal, we have not included a

limitations period in the final rule.

D. Standard of Proof

In its original proposal, the Board provided that the General

Counsel must establish the alleged misconduct by a ``preponderance of

the evidence.'' In its comments, one of the management law firms

(Haynsworth, Baldwin) objected to this proposal, and recommended that

the Board instead adopt the ``clear and convincing evidence'' standard.

Although we have carefully considered this recommendation, we

decline to adopt it. We recognize that the ``clear and convincing

evidence'' standard has been adopted in Rule 18.D of the ABA Model

Rules for Lawyer Disciplinary Enforcement and by a majority of

jurisdictions. See Lawyers' Manual at 01:616 and 101:2112. However, the

Board has never applied that standard to its disciplinary proceedings

in the past, and indeed has at least implicitly applied the

``preponderance of the evidence'' standard by directing that the rules

governing unfair labor practice proceedings shall apply to such

proceedings. See, e.g., Cherry Hill Textiles, Inc.(Stuart Bochner),

supra; Sargent Karch, supra, and 309 NLRB 78, 88 (1992); and Roy T.

Rhodes, supra.10 Further, unlike the courts, the Board is governed

by the Administrative Procedure Act, which effectively establishes the

traditional ``preponderance of the evidence'' standard in Federal

administrative adjudicatory proceedings, including disciplinary

proceedings. See Steadman v. SEC, 450 U.S. 91 (1981). See also

Checkosky v. SEC, 23 F.3d 452, 475 (D.C. Cir. 1994) (per curiam)

(opinion of Circuit Judge Randolph).\11\ Finally,

[[Page 65329]]

there is no contention or evidence cited in any of the comments that

the Board's past application of the traditional ``preponderance of the

evidence'' standard has worked an injustice. Indeed, as indicated

above, no objection whatsoever was made to the application of this

standard by the ABA Practice and Procedure Committee or in any of the

other nine comments.

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\10\ The ``preponderance of the evidence'' standard is the

standard of proof specifically established in Section 10(c) of the

National Labor Relations Act for unfair labor practice proceedings.

\11\ Although it appears that a few agencies, such as the INS

and the Patent and Trademark Office, apply the ``clear and

convincing'' standard in their disciplinary proceedings, they appear

to be in the minority. In any event, it seems clear, based on the

cited cases, that agencies are not required to apply that standard

to their disciplinary proceedings under the Administrative Procedure

Act.

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Accordingly, we have retained the ``preponderance of the evidence''

standard in the final rule.

E. Public Hearing

In its original proposal, the Board included a provision that the

disciplinary hearing shall be public unless otherwise ordered by the

Board or the administrative law judge. The ABA Practice and Procedure

Committee and one of the management law firms submitting comments

(Haynsworth, Baldwin) objected to this proposal and recommended that

such hearings be private on the ground that allegations of misconduct

can ruin an attorney's career regardless of whether the allegations are

ultimately sustained.

Although we have carefully considered these comments, we believe

the provision should be retained for several reasons. First, the

provision merely codifies what is the current and past practice in

disciplinary proceedings, and is identical to similar provisions

contained in Sections 102.34 and 102.64 of the Board's rules governing

unfair labor practice and representation proceedings. Second, such a

provision is consistent with Rule 16.B of the ABA Model Rules for

Lawyer Disciplinary Enforcement, which provides for such public

proceedings following the filing and service of formal charges (see

Lawyers' Manual at 01:615), and with the disciplinary rules adopted by

other agencies such as the SEC (see 17 CFR 201.102(e)(7)). Third,

although we recognize that any public proceeding may cause injury to

the reputation of the respondent, in agreement with other agencies that

have considered the issue, we believe that such concerns are clearly

outweighed by the benefits of public proceedings. See, e.g., SEC Final

Rule Amendment, 53 FR 26427 (July 13, 1988) (finding, in adopting

amendment to SEC rules to provide for public hearings in disciplinary

proceedings against professionals, that conducting open proceedings

will avoid the appearance that the Agency is more concerned about the

reputations of respondent attorneys and representatives than of other

respondents in other proceedings; remove an incentive for respondents

to delay the proceeding; provide professionals and the public with

knowledge of conduct that the agency determines warrants issuance of a

disciplinary complaint; and permit legitimate public oversight of the

Agency's proceedings).

Accordingly, we have retained the provision for public hearings in

the final rule.

F. Role of Complainant

The Board's original proposal also addressed the role of the person

bringing the allegations of misconduct or petitioning for disciplinary

proceedings against the respondent attorney or representative.\12\ The

proposal provided that any such person shall be permitted to

participate in the disciplinary hearing to a limited extent by

examining and cross-examining witnesses called by the General Counsel

and the respondent, but shall not be a party to the proceeding or

afforded the rights of a party to call witnesses or introduce evidence,

to file exceptions to the administrative law judge's decision, or to

appeal the Board's decision. The Board explained that such provisions

would allow such interested persons the opportunity to participate to

some extent in the proceeding while ensuring that the responsibility

for prosecuting the disciplinary complaint will at all times remain

with the General Counsel and that the disciplinary proceeding would not

be transformed into an adversary proceeding between the complaining

person and the respondent. The Board noted in this regard that courts

have long held that attorney disciplinary proceedings are in the nature

of internal investigations concerning the protection and integrity of

the adjudicatory process rather than adversarial disputes involving the

conflicting rights or obligations of private parties, and, accordingly,

have refused to grant party status or a right to appeal to the

complaining person or individual in such proceedings, even if that

person or individual was a party or party representative in the case

where the alleged misconduct occurred and/or was permitted to

participate in the disciplinary hearing. See Ramos Colon v. U.S.

Attorney for the District of Puerto Rico, 576 F.2d 1 (1st Cir. 1978);

Application of Phillips, 510 F.2d 126 (2d Cir. 1975); In re Echeles,

430 F.2d 347 (7th Cir. 1970); and Mattice v. Meyer, 353 F.2d 316 (8th

Cir. 1965). See also Matter of Doe, 801 F. Supp. 478 (D. N.M. 1992).

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\12\ The NPR provided that allegations of misconduct may be

brought by ``any person,'' and we have retained this provision in

the final rule. The provision essentially codifies the current

practice which permits any person, including but not limited to the

participants in the underlying unfair labor practice or

representation proceeding, to request disciplinary action against an

attorney or representative. No special form is required to make such

allegations. As in the past, a party may simply write to the Agency

requesting such action, or an ALJ may recommend in his/her decision

that the Board refer the matter to the General Counsel for such

action under the rule. As under the current rule, the Board itself

may also refer a matter to the General Counsel for investigation and

appropriate action, either sua sponte or in response to a request or

recommendation. As discussed, supra, however, under the new rule the

General Counsel will have the final authority to decide whether to

issue a disciplinary complaint.

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Two of the comments (filed by the ABA Practice and Procedure

Committee and the UAW) addressed this aspect of the Board's proposed

rule. The ABA Practice and Procedure Committee commented that it

generally agreed with allowing the complainant a limited role, but

argued that the complainant should not be permitted to examine or

cross-examine the respondent attorney or representative at the hearing.

In addition, both the ABA Practice and Procedure Committee and the UAW

recommended that the rule be amended or clarified to permit the

complainant to appeal any settlement entered into by the General

Counsel and the respondent attorney or representative or approved by an

administrative law judge.

Having carefully considered these comments, we have in essence

decided to adopt the former recommendation (and indeed to eliminate the

complainant's right to examine or cross-examine any witnesses), but not

to adopt the latter recommendation. With respect to the provision in

the original proposal permitting the complainant to examine or cross-

examine witnesses at the disciplinary hearing, we do not necessarily

agree with the ABA Practice and Procedure Committee that the original

proposal would have denied the respondent attorney or representative

due process to the extent it permitted the complainant to examine or

cross- examine the respondent.\13\ However,

[[Page 65330]]

essentially for the reasons set forth by the Board in the NPR for

denying party status to complainant, and consistent with the past

practice,\14\ on further consideration we believe that the rights of

the respondent attorney or representative and the integrity of the

disciplinary process would be better protected by limiting

participation at the hearing, other than as a witness, to the General

Counsel and the respondent attorney or representative or his/her

counsel. Accordingly, we have deleted the provision in the original

proposal which allowed complainants to examine or cross-examine

witnesses at the hearing.

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\13\ In its comments on this provision, the ABA Practice and

Procedure Committee suggested that such a provision would deny the

respondent attorney or representative due process because he/she

would not be able to examine or cross-examine the complainant.

However, the Board's new rule specifically provides that the rules

applicable to unfair labor practice proceedings shall apply to the

extent they are not contrary to the provisions of the new rule, and

Sec. 102.38 of those rules provides that a respondent shall have the

right to call, examine, and cross-examine witnesses. See also Rule

611(c) of the Federal Rules of Civil Procedure regarding examination

of hostile witnesses. Thus, the respondent attorney or

representative will in fact have the opportunity under appropriate

circumstances to call, examine, and/or cross-examine the complainant

and other witnesses at the disciplinary hearing.

\14\ A review of past cases where a disciplinary hearing has

been held indicates that only the General Counsel and the respondent

attorney or representative participated in the disciplinary hearing.

See John L. Camp, 96 NLRB 51 (1951), vacated on other grounds 104 F.

Supp. 134 (D.D.C. 1952); Roy T. Rhodes, supra; Sargent Karch, supra;

and Stuart Bochner, JD (NY)-10-96 (Feb. 20, 1996) (currently pending

before the Board on exceptions). Further, in its original

(unpublished) order directing a disciplinary hearing in In re

Attorney, supra, the Board specifically indicated that the opposing

counsel in the underlying representation case was not entitled to

participate in the hearing other than as a witness.

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For similar reasons, we also decline to afford the complainant the

right to appeal from a settlement reached by the General Counsel and

the respondent. The Board did not include such a provision in the

original proposal because the Board believed that to do so would be

inconsistent with the Board's determination to deny party status to the

complainant, and we adhere to that view. Cf. NLRB v. Food & Commercial

Workers Union, Local 23, 484 U.S. 112 (1987) (discussing charging

party's right to appeal settlements in unfair labor practice cases).

Accordingly, we have not added such a provision to the final rule.

G. Judicial Review

In its original proposal, the Board included a provision stating

that any person found to have engaged in misconduct warranting

disciplinary sanctions may seek judicial review of the administrative

determination. In its comments on the Board's original proposal,

management law firm Haynsworth, Baldwin recommended that the Board

outline the exact procedure for seeking judicial review, suggesting

that the Board provide for judicial review in a federal district where

the respondent attorney or representative resides or has a principal

place of business.

Although we have carefully considered this recommendation, we have

decided not to adopt it. The Board included a provision in the original

proposal generally referencing the right to seek judicial review of

final Board orders imposing discipline because the NLRA itself only

specifically provides for judicial review of final Board orders in

unfair labor practice proceedings. Thus, the Board's intent was simply

to make clear that a respondent attorney or representative aggrieved by

such an order may seek judicial review thereof. See the Administrative

Procedure Act (APA), 5 U.S.C. 702.

Further, it appears to remain somewhat unsettled as to whether the

district courts or the courts of appeals have jurisdiction over such

appeals. There have been only two cases to our knowledge where a

disciplined attorney or representative has sought judicial review of

the Board's disciplinary order: John L. Camp, 96 NLRB 51 (1954); and

Joel Keiler, supra. In the first, although review was sought in the

district court, which vacated the Board's order, the jurisdictional

issue was not specifically addressed by the court in its opinion. See

Camp v. Herzog, 104 F.Supp. 134 (D.D.C. 1952). In the second, which is

still pending, the Agency recently took the position before the U.S.

Court of Appeals for the D.C. Circuit, relying in part on the Camp v.

Herzog case, that the district court rather than the court of appeals

had jurisdiction over Keiler's appeal, and the court of appeals, in

apparent agreement with the Agency, issued an order on January 23, 1996

(per curiam) transferring the case to the district court. The court's

order was unpublished, however, and thus is not considered binding

precedent under the Circuit's rules. See Circuit Rule 28(b).

Finally, even assuming arguendo that the foregoing cases do

substantially settle the jurisdictional issue, we do not believe it is

our place to dictate in our rules in which court or venue a party may

seek judicial review. As indicated by the litigation in the Keiler

case, such issues are for the courts themselves to determine applying

law and precedent. See, e.g., 28 U.S.C. Sec. 1391(e) (providing for

proper district court venue where Federal agency is a defendant).

Accordingly, we have retained the original provision in the final

rule without substantial change.

H. Public Disclosure of Discipline

In their separate comments on the Board's NPR, the ABA Practice and

Procedure Committee and the AFL-CIO recommended that the Board make

available to the public the final determination or disposition of any

disciplinary complaint or hearing, be it the result of a settlement or

decision, to assure the bar and public that the Board is acting in an

even-handed manner and to provide guidance to practitioners.

We generally agree with this recommendation, and, as in the past,

the Agency will continue to make public any such final dispositions or

determinations consistent with the Agency's obligations under the

Freedom of Information Act (FOIA), 5 U.S.C. 552 et seq., absent special

circumstances warranting or justifying withholding all or part of such

a disposition.\15\ However, neither the ABA Practice and Procedure

Committee nor the AFL-CIO specifically recommended that a provision be

included in the rule to this effect, and we see no need to do so since,

as indicated, the matter is essentially governed by FOIA. Accordingly,

we have not added such a provision to the final rule.

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\15\ Such special circumstances may include where certain

identifying information is redacted pursuant to the settlement

agreement. See, e.g., In re An Attorney, 307 NLRB 913 (1992) (Board

agreed to redact attorney's name from published decision and not to

seek further discipline against attorney by referring matter to

state bar as part of settlement agreement which provided for

immediate six-month suspension of attorney). The Agency in the past

has taken the position in such circumstances that the redacted

information may properly be withheld from public disclosure pursuant

to Exemptions 7(A) and (C) of FOIA, 5 U.S.C. 552(b)(7) (A) and (C),

which authorize the withholding of information compiled for law

enforcement purposes to the extent disclosure could reasonably be

expected to interfere with enforcement proceedings or to constitute

an unwarranted invasion of personal privacy. Although we agree that

disclosure is preferable to non-disclosure/redaction, we recognize

that there may be situations where the Agency may find such

redaction to be a relatively small price to pay for an immediate

consent order suspending an errant attorney or representative from

further practice before the Agency. Redaction of certain identifying

information from a settlement in no way deprives the public of

information necessary to obtain guidance concerning the Board's

policies on misconduct and discipline.

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I. Notification to State Bar

In their separate comments on the Board's original proposal, the

ABA Practice and Procedure Committee, the AFL-CIO, and the UAW also

recommended that the Board automatically or routinely notify the

appropriate state bar(s) where it has imposed a disciplinary sanction

on an attorney. Further, the UAW specifically recommended that a

provision providing for such automatic referral be included in the

rule.

We generally agree that the appropriate state bar(s) should be

notified of any disciplinary sanctions imposed on an attorney and, as

with public disclosure of such sanctions, it is

[[Page 65331]]

our policy to do so absent special circumstances.\16\ Moreover,

pursuant to a May 18, 1995, request from the ABA Standing Committee on

Professional Discipline, it is also our policy and intention to report

such disciplinary actions to the ABA National Lawyer Regulatory Data

Bank, which collects reports of public sanctions imposed against

lawyers from all 50 states and the District of Columbia, as well as a

number of federal courts and agencies.

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\16\ As with public disclosure, such special circumstances may

include where the Board agrees not to do so pursuant to a settlement

agreement. See In re An Attorney, supra. Even in such circumstances,

however, other persons (including any person who is not a party to

such a settlement) would be free to refer the matter to the

appropriate state bar(s).

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However, as such notification of a public disciplinary action does

not itself constitute discipline or create any rights or impose any

obligations on the respondent attorney, we see no need to include a

provision to this effect in the rule as suggested by the UAW. We will,

however, consider adding such a provision to the Agency's Casehandling

Manual.

IV. Answers Filed by Non-Attorneys

In its original proposal, the Board also proposed to revise Section

102.21 of its rules governing the filing of answers to unfair labor

practice complaints. As discussed in the NPR, the current rule provides

that the answer of a party represented by counsel shall be signed by at

least one attorney of record; that the attorney's signature constitutes

a certificate by the attorney that he/she has read the answer, there is

good ground to support it to the best of his/her knowledge, information

and belief, and it is not interposed for delay; and that the attorney

may be subjected to appropriate disciplinary action for willful

violations of the rule or if scandalous or indecent matter is inserted.

As indicated above and in the NPR, however, it is not required

under the Board's rules that a party representative be an attorney.

Further, it is not infrequent that a party will be represented by a

non-attorney and that the nonattorney party representative will sign

the answer on behalf of the party. Accordingly, the Board proposed to

revise Section 102.21 to make the foregoing provisions of that section

applicable to nonattorney party representatives as well as attorneys.

Only two of the comments addressed this aspect of the proposal.

One, filed by management law firm Seyfarth, Shaw, Fairweather &

Geraldson, supported the proposal. The other, filed by attorney Ronald

L. Mason, argued that the proposal encourages the use of nonlawyer

labor consultants.

Having considered these comments, we continue to believe that the

proposed change is warranted. Contrary to the assertion by attorney

Mason, we do not believe that the proposal either encourages or

discourages the use of nonlawyer labor consultants, but merely subjects

such representatives to the same requirements and sanctions as

attorneys with respect to the filing of answers. Accordingly, we have

retained this provision in the final rule.

As required by the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.), the NLRB certifies that these rules will not have a significant

economic impact on a substantial number of small business entities as

they merely require attorneys and other representatives who appear and

practice before the Agency to conform their conduct to the standards of

ethical and professional conduct applicable to practitioners before the

courts in order to protect the integrity of the administrative process

and the rights of the parties and other participants in that process.

List of Subjects in 29 CFR Part 102

Administrative practice and procedure, Labor management relations.

For the reasons set forth above, the NLRB amends 29 CFR Part 102 as

follows:

PART 102--RULES AND REGULATIONS

1. The authority citation for 29 CFR part 102 continues to read as

follows:

Authority: Section 6, National Labor Relations Act, as amended

(29 U.S.C. 151, 156). Section 102.117(c) also issued under Section

552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C.

552(a)(4)(A)). Sections 102.143 through 102.155 also issued under

Section 504(c)(1) of the Equal Access to Justice Act, as amended (5

U.S.C. 504(c)(1)).

2. Section 102.21 is revised to read as follows:

Sec. 102.21 Where to file; service upon the parties; form.

An original and four copies of the answer shall be filed with the

Regional Director issuing the complaint. Immediately upon the filing of

his answer, respondent shall serve a copy thereof on the other parties.

An answer of a party represented by counsel or non-attorney

representative shall be signed by at least one such attorney or non-

attorney representative of record in his/her individual name, whose

address shall be stated. A party who is not represented by an attorney

or non-attorney representative shall sign his/her answer and state his/

her address. Except when otherwise specifically provided by rule or

statute, an answer need not be verified or accompanied by affidavit.

The signature of the attorney or non-attorney party representative

constitutes a certificate by him/her that he/she has read the answer;

that to the best of his/her knowledge, information, and belief there is

good ground to support it; and that it is not interposed for delay. If

an answer is not signed or is signed with intent to defeat the purpose

of this section, it may be stricken as sham and false and the action

may proceed as though the answer had not been served. For a willful

violation of this section an attorney or non-attorney party

representative may be subjected to appropriate disciplinary action.

Similar action may be taken if scandalous or indecent matter is

inserted.

Sec. 102.44 [Removed]

3. Section 102.44 is removed.

Sec. 102.66 [Removed and amended]

4. Paragraph (d) of Sec. 102.66 is removed, and paragraphs (e),

(f), and (g) are redesignated paragraphs (d), (e), and (f),

respectively.

5. The following new Subpart W--Misconduct By Attorneys or Party

Representatives, consisting of new section 102.177, is added to read as

follows:

Subpart W--Misconduct by Attorneys or Party Representatives

Sec. 102.177 Exclusion from hearings; Refusal of witness to answer

questions; Misconduct by attorneys and party representatives before the

Agency; Procedures for processing misconduct allegations.

(a) Any attorney or other representative appearing or practicing

before the Agency shall conform to the standards of ethical and

professional conduct required of practitioners before the courts, and

the Agency will be guided by those standards in interpreting and

applying the provisions of this section.

(b) Misconduct by any person at any hearing before an

administrative law judge, hearing officer, or the Board shall be

grounds for summary exclusion from the hearing. Notwithstanding the

procedures set forth in paragraph (e) of this section for handling

allegations of misconduct, the administrative law judge, hearing

officer, or Board shall also have the authority in the proceeding in

which the misconduct occurred to admonish or reprimand,

[[Page 65332]]

after due notice, any person who engages in misconduct at a hearing.

(c) The refusal of a witness at any such hearing to answer any

question which has been ruled to be proper shall, in the discretion of

the administrative law judge or hearing officer, be grounds for

striking all testimony previously given by such witness on related

matters.

(d) Misconduct by an attorney or other representative at any stage

of any Agency proceeding, including but not limited to misconduct at a

hearing, shall be grounds for discipline. Such misconduct of an

aggravated character shall be grounds for suspension and/or disbarment

from practice before the Agency and/or other sanctions.

(e) All allegations of misconduct pursuant to paragraph (d) of this

section, except for those involving the conduct of Agency employees,

shall be handled in accordance with the following procedures:

(1) Allegations that an attorney or party representative has

engaged in misconduct may be brought to the attention of the

Investigating Officer by any person. The Investigating Officer, for

purposes of this paragraph, shall be the Associate General Counsel,

Division of Operations-Management, or his/her designee.

(2) The Investigating Officer or his/her designee shall conduct

such investigation as he/she deems appropriate and shall have the usual

powers of investigation provided in Section 11 of the Act. Following

the investigation, the Investigating Officer shall make a

recommendation to the General Counsel, who shall make the determination

whether to institute disciplinary proceedings against the attorney or

party representative. The General Counsel's authority to make this

determination shall not be delegable to the Regional Director or other

personnel in the Regional Office. If the General Counsel determines not

to institute disciplinary proceedings, all interested persons shall be

notified of the determination, which shall be final.

(3) If the General Counsel decides to institute disciplinary

proceedings against the attorney or party representative, the General

Counsel or his/her designee shall serve the Respondent with a complaint

which shall include: a statement of the acts which are claimed to

constitute misconduct including the approximate date and place of such

acts together with a statement of the discipline recommended;

notification of the right to a hearing before an administrative law

judge with respect to any material issues of fact or mitigation; and an

explanation of the method by which a hearing may be requested. Such a

complaint shall not be issued until the Respondent has been notified of

the allegations in writing and has been afforded a reasonable

opportunity to respond.

(4) Within 14 days of service of the disciplinary complaint, the

respondent shall file an answer admitting or denying the allegations,

and may request a hearing. If no answer is filed or no material issue

of fact or relevant to mitigation warranting a hearing is raised, the

matter may be submitted directly to the Board. If no answer is filed,

then the allegations shall be deemed admitted.

(5) Sections 102.24 through 102.51, rules applicable to unfair

labor practice proceedings, shall be applicable to disciplinary

proceedings under this section to the extent that they are not contrary

to the provisions of this section.

(6) The hearing shall be conducted at a reasonable time, date, and

place. In setting the hearing date, the administrative law judge shall

give due regard to the respondent's need for time to prepare an

adequate defense and the need of the Agency and the respondent for an

expeditious resolution of the allegations.

(7) The hearing shall be public unless otherwise ordered by the

Board or the administrative law judge.

(8) Any person bringing allegations of misconduct or filing a

petition for disciplinary proceedings against an attorney or party

representative shall be given notice of the scheduled hearing. Any such

person shall not be a party to the disciplinary proceeding, however,

and shall not be afforded the rights of a party to call, examine or

cross- examine witnesses and introduce evidence at the hearing, to file

exceptions to the administrative law judge's decision, or to appeal the

Board's decision.

(9) The respondent will, upon request, be provided with an

opportunity to read the transcript or listen to a recording of the

hearing.

(10) The General Counsel must establish the alleged misconduct by a

preponderance of the evidence.

(11) At any stage of the proceeding prior to hearing, the

respondent may submit a settlement proposal to the General Counsel, who

may approve the settlement or elect to continue with the proceedings.

Any formal settlement reached between the General Counsel and the

respondent, providing for entry of a Board order reprimanding,

suspending, disbarring or taking other disciplinary action against the

respondent, shall be subject to final approval by the Board. In the

event any settlement, formal or informal, is reached after opening of

the hearing, such settlement must be submitted to the administrative

law judge for approval. In the event the administrative law judge

rejects the settlement, either the General Counsel or the respondent

may appeal such ruling to the Board as provided in Sec. 102.26.

(12) If it is found that the respondent has engaged in misconduct

in violation of paragraph (d) of this section, the Board may issue a

final order imposing such disciplinary sanctions as it deems

appropriate, including, where the misconduct is of an aggravated

character, suspension and/or disbarment from practice before the

Agency, and/or other sanctions.

(f) Any person found to have engaged in misconduct warranting

disciplinary sanctions under paragraph (d) of this section may seek

judicial review of the administrative determination.

Dated, Washington, D.C., December 9, 1996.

By direction of the Board:

John J. Toner,

Executive Secretary.

[FR Doc. 96-31571 Filed 12-11-96; 8:45 am]

BILLING CODE 7545-01-P