SSR 74-29: SECTION 206 (42 U.S.C. 406) -- REPRESENTATION OF CLAIMANT -- DISQUALIFICATION OF NONATTORNEY -- DUE PROCESS REQUIRES NOTICE AND OPPORTUNITY FOR HEARING

20 CFR 404.971-404.972 and 404.979-404.990

SSR 74-29

A question has been raised as to whether an individual who has been

convicted of mail fraud and disbarred by a State Supreme Court may be

excluded from representing claimants under section 404.972(b) of Social

Security Administration Regulations No. 4 without first affording such

individual the notice and hearing rights provided by sections 404.979

through 404.990 of Regulations No. 4.

Section 404.971 of the Regulations provides that a party in an action

before the Administration may appoint as his or her representative "only

an individual who is qualified under section 404.972 to act as a

representative". Section 404.972 sets forth qualifications necessary where

(a) the designated representative is an attorney in good standing, and (b)

the designated representative is a person other than an attorney.

Specifically, 404.972(b) states that any person may be appointed as a

representative if such person

The statutory authority for section 404.972 of the Regulations which

requires only persons other than attorneys in good standing to meet the

qualifications of (1) above, is found in section 206(a) of the Social

Security Act. Section 206(a) states, inter alia, that "an attorney in good

standing who is admitted to practice before the highest court of the

State, Territory, District, or insular possession of his residence or

before the Supreme Court of the United States or the inferior Federal

courts, shall be entitled to represent claimants before the Secretary."

Section 206(a) of the Act further provides that the Secretary may

prescribe rules and regulations governing the recognition of agents or

other persons representing claimants before the Secretary and may require

such persons, before being recognized as representatives of claimants, to

show that they are of good character and in good repute, possessed of the

necessary qualifications to enable them to render such claimants valuable

service, and otherwise com

scribe rules and regulations governing the recognition of agents or

other persons representing claimants before the Secretary and may require

such persons, before being recognized as representatives of claimants, to

show that they are of good character and in good repute, possessed of the

necessary qualifications to enable them to render such claimants valuable

service, and otherwise competent to advise and assist such claimants in

the presentation of the cases. These provisions of the Social Security Act

enable the Administration to refuse to recognize a nonattorney as the

representative of a claimant when the nonattorney does not satisfy the

above-cited statutory qualifications and the parallel requirements of

section 404.972(b)(1) of the Regulations.

An individual, prior to conviction for mail fraud was active in social

security cases before the Administration as an attorney. this individual

served an 18-month prison sentence, was disbarred by a State Supreme Court

and ha snow been released from prison and is actively representing social

security claimants as a nonattorney.

Although a recent conviction for mail fraud and disbarment by a State

Supreme Court are inconsistent with a finding that the individual meets

the qualifications of section 404.972(b)(1) necessary for appointment and

recognition of a nonattorney as a representative of claimants under

section 404.971, where an individual, prior to the conviction and the

disbarment, has represented claimants before the Administration, notice

and an opportunity for a hearing must be given before that individual may

be excluded by the Administration from representing claimants. This

conclusion is based on the provision of section 206(a) which states:

s a representative of claimants under

section 404.971, where an individual, prior to the conviction and the

disbarment, has represented claimants before the Administration, notice

and an opportunity for a hearing must be given before that individual may

be excluded by the Administration from representing claimants. This

conclusion is based on the provision of section 206(a) which states:

This provision does not derogate the authority of the Administration to

require that persons other than attorneys, before being recognized as

representatives of claimants, show that they are of good character and in

good repute. It does, however, give to those persons who have represented

claimants before the Administration, a statutory expectation that before

they are suspended or prohibited from further practice, notice and an

opportunity for hearing will be given. Conviction and disbarment rather

than removing this statutory expectation, should trigger the notice and

opportunity for hearing procedures. Clearly this is the result where an

attorney has been convicted of a violation of section 206(a) of the Act.

See section 404.979 of Regulations No. 4. If, upon conviction for a

violation under section 206(a), an attorney must receive from the Social

Security Administration notice and opportunity for a hearing before being

disqualified or suspended from acting as a representative in proceedings

before the Administration, a conviction for some other offense should

arguably prompt the same notice and opportunity for hearing procedures.

4. If, upon conviction for a

violation under section 206(a), an attorney must receive from the Social

Security Administration notice and opportunity for a hearing before being

disqualified or suspended from acting as a representative in proceedings

before the Administration, a conviction for some other offense should

arguably prompt the same notice and opportunity for hearing procedures.

With respect to a State court judgment of disbarment, Federal courts have

held that the order of disbarment does not create a legal status of

professional unworthiness which must be accepted by Federal courts as an

adjudicated fact for purposes of a disbarment proceeding in a Federal

court. See In re Tinkoff 101 F.2d 341, 343 (7th Cir. 1939), cert.

denied 308 U.S. 552 (1939). Rule 46(b) of the Federal Rules of Appellate

Procedure provides that when it is shown to the court that any member of

its bar has been suspended or disbarred from practice in any other court

of record, the member will be afforded an opportunity to show good cause

why he should not be suspended or disbarred, and if requested, a hearing

will be held upon his response to the rule to show cause. See also Rule 8

of the Rules of the Supreme Court of the United States, 28 U.S.C. Revised

Rules of the Supreme Court of the United States.

Although a State court's order of disbarment is not, as res judicata,

binding upon the Supreme Court or a Federal court, the effect of such

disbarment, as long as the State court action stands unreversed, has been

characterized as destroying the condition of fair private and professional

character which an individual must possess to continue as a member of the

Federal bar. See Selling v. Radford 243 U.S. 46 (1917). This

effect of an order of disbarment, however, does not alter the fact that in

any subsequent effort to suspend or revoke the individual's legal license,

due process of law must play a fundamental part

destroying the condition of fair private and professional

character which an individual must possess to continue as a member of the

Federal bar. See Selling v. Radford 243 U.S. 46 (1917). This

effect of an order of disbarment, however, does not alter the fact that in

any subsequent effort to suspend or revoke the individual's legal license,

due process of law must play a fundamental part. The issue in such a

proceeding is not whether the practitioner is entitled to due process, but

whether, as to matters of substance and procedure, the individual has been

afforded such due process. See Annot., 98 L.Ed. 851, 852 (1953). The

courts are in complete agreement that, to meet due process requirements,

it is necessary that an attorney whose license it is sought to suspend or

revoke must be given notice of the pending suspension or revocation and

must be given an opportunity to be heard in his own defense. See Annot.,

98 L.Ed. 852, 855 (1953) citing cases. See also Schwebel v. Orrick 153 F. Supp. 701, affirmed 251 F.2d 919 (D.C. Cir. 1958),

cert. denied, 356 U.S. 927 (1958).

In Schwebel v. Orrick , supra, it was held that whereas the

Securities and Exchange Commission had the authority to establish

qualifications for attorneys practicing before the

Commission [1] and to take

disciplinary action against attorneys found guilty of unethical or

improper professional

conduct [2] , proceedings to

revoke the right to practice before a government agency must be in

accordance with the concept of fair play in that case, as legislatively

applied to administrative proceedings by the Administrative Procedure Act.

This requires, the court continued, that before suspension or revocation

of any license, the licensee shall be given written notice of the charges

against him and an opportunity to meet such charges

actice before a government agency must be in

accordance with the concept of fair play in that case, as legislatively

applied to administrative proceedings by the Administrative Procedure Act.

This requires, the court continued, that before suspension or revocation

of any license, the licensee shall be given written notice of the charges

against him and an opportunity to meet such charges. The court stated that

the term "license" as defined in section 2(e) of the

APA [3] was broad enough to cover

the right to practice before a government agency, which is a "form of

permission" granted by an agency. As such, the section of the

APA [4] providing that except in

cases of willfulness, no suspension or revocation of any license is lawful

unless the licensee has been given 1) written notice by the agency of the

facts or conduct which may warrant the action, and 2) an opportunity to

demonstrate or achieve compliance with all lawful requirements was

applicable to proceedings for revocation of an attorney's permission to

practice before a government agency. Given this broad definition of

"license" and the limited effect of a State court's order of disbarment,

these minimum due process requirements would also be mandated where an

agency, having once recognized an individual in a representative capacity,

seeks to exclude such individual from further practice before it.

Therefore, held , that whenever any individual has represented

claimants in a proceeding before the social Security Administration, such

individual may not be excluded (suspended or disqualified) from future

participation in Administration proceedings as a representative of

claimants prior to compliance with the procedures established by sections

404.979-404.990 of the Regulations.

it.

Therefore, held , that whenever any individual has represented

claimants in a proceeding before the social Security Administration, such

individual may not be excluded (suspended or disqualified) from future

participation in Administration proceedings as a representative of

claimants prior to compliance with the procedures established by sections

404.979-404.990 of the Regulations.

[1] See also Herman v. Dallas 205 F.2d 715 (D.C. 1953) where the court stated that the

powers of administrative agencies to control the practice of attorneys

before them were not changed by provisions of the APA that persons

compelled to appear before an agency may be accompanied and represented by

counsel.

[2] See also Kivitz v. Securities and Exchange Commission 475 F.2d 956, 962 (D.C. Cir.

1973).

[3] See 5 U.S.C. 551(8) wherein

"license" is defined to include "the whole or a part of an agency permit,

certificate, approval, registration, charter, membership, statutory

exemption or other form of permission."

[4] See 5 U.S.C. 558(c).