- I would like to next take up the misconceptions of traffic men and

accountants.

Two groups of nonlawyer practitioners have made certain representations to this committee which demonstrate a misconception of the purposes and terms of H. R. 2657.

If their fears were well founded respecting the language of section 6 relating to nonlawyers, you may be sure that the lawyers, too, would have cause to fear the generally parallel provisions of section 5.

That those fears are unfounded appears from a comparison of statements made with the actual bill. It will be helpful to treat the traffic men and accountants separately. Therefore, I want to take up first the nonlawyer practitioners before the Interstate Commerce Commission.

I had hoped to have here for part of our presentation, Mr. Clarence Miller, a member of our committee, who is the general counsel of the American Short Line Railroad Association, and a past president of the Association of Interstate Commerce Practitioner. Unfortunately, he is confined to his home by illness. Since he cannot be here, I should like to read the following from his address before that association on April 15, 1947:

I have been somewhat surprised and astonished by the hysteria that has been caused by the introduction of the Gwynne bill in Congress. The broadside which has been circulated to all of you is truly a rococo production, and reminds one of Boswell's famous Letter to the People of Scotland.

Some of the statements which have been made with respect to the bill are so breathless and fantastic and so full of indignation that it is quite evident that the bill has not been carefully read and digested.

**

It has been said that the Gwynne bill is aimed and directed fundamentally against the nonlawyer members of the Practitioners Association who have been licensed by the Interstate Commerce Commission to appear before it.

Nowhere in the bill is the Interstate Commerce Commission mentioned, nor is any mention made of the nonlawyer practitioners before the Commission as any special group. What the bill does do is to put them in the same class with all other nonlawyer practitioners before administrative agencies.

*

So far as nonlawyers are already admitted to practice before administrative agencies, the bill will not affect them, if the agency certifies to the credentials committee that he has been authorized to practice before it, has maintained such standing, and is actively engaged in the practice so permitted. Under these circumstances, he is to be given credentials enabling him to continue such practice.

As to nonlawyers who have not yet been admitted to practice before the agencies, the bill provides for examination and certification. Under section 6 of the bill, the Interstate Commerce Commission could continue to conduct its examinations and certify qualified nonlawyer applicants to the credentials committee.

*

One of the things that has caused a great deal of discussion is the apparent confusion of the words "practitioners" and "witnesses." There is nothing in this bill which would preclude any nonlawyer from appearing before the Interstate Commerce Commission as a witness in any case.

In spite of the fact that the witnesses generally do the arguing and the lawyers the testifying, the field still remains broad enough for the legitimate activities of the two groups. There are many nonlawyers who can be of more aid and assistance to the Commission as witnesses than they can as advocates. It has been said that the bill would prohibit the appearance of a representative of a farm bureau or a local farm organization in a case involving the abandonment of a branch line railroad.

These folks are generally classified as protestants. They do not need to interThey may appear as witnesses and state why they oppose the abandonment. There is nothing in this bill which affects that situation one iota.

vene.

That is the end of my quotation of Mr. Miller's remarks, and I continue.

The Association of Interstate Commerce Commission Practitioners is predominantly an organization of nonlawyers, although the great preponderance of practitioners before the Interstate Commerce Commission is made up of lawyers.

It has circulated statements which in turn have been reflected in other communications to this committee which if true would be serious defects in the bill, indeed. Mr. Miller was referring to those when he made the statement that I have just read. Perhaps we ought to look into them further.

On April 1, 1947, that association circulated a statement in which the following was said:

* **

The whole purpose of the bill * is to insure that there shall be no more appearances by registered practitioners who are not lawyers after the retirement or death of nonlawyer practitioners who now, under the Commission's rules of practice, have the right to appear before it.

*

蹾 *

* * *

The bill would prevent practice before the Commission by nonlawyers in rate cases and a large number of cases in which hearings are required. It would divest the Interstate Commerce Commission of the duty and responsibility of determining the qualifications of those who may appear before it. * The bill * * * contains no provisions whatever for either the lawyer or the nonlawyer whose appearance before the Commission is a casual one, and who does not make a business of appearing before the Commission. *

*

Apparently a nonlawyer would not be permitted to give any advice in his office respecting a technical question of tariff interpretation, or of routes or routing, or of conflict of rates, matters which a lawyer in general practice is not as a rule qualified by experience to handle.

Mr. GWYNNE. Is the statement previously referred to a statement signed by Mr. Smith?

Mr. RANDALL. I believe it is. I am now advised, Mr. Chairman, that it is the statement made by Mr. Smith.

Mr. GWYNNE. Continue, Mr. Randall.

Mr. RANDALL. Not a single one of these devastating statements is true. Nonlawyers may appear either as witness, or, with some requirements and limitations, as practitioners.

The Interstate Commerce Commission will retain its responsibility for the licensing of nonlawyers to practice before it. There is express provision for the casual appearance of unlicensed lawyer practitioners. Whether a license to appear in Commission proceedings means that the licensee may practice law in the States is properly left to the States. I shall not at this time analyze these matters further, because it will save the time of the committee if I do that later in discussing the several provisions of the bill one by one.

I would like to take up next the matter of the accountant practitioners in tax matters. Even more fanciful and unfounded is the submittal made to this committee on behalf of the American Institute of Accountants. The following statements are made:

The bill abridges the long-recognized right of accountants to practice before the Treasury Department.

But there is not a shred of fact in that statement. It is said that—

An agency may hesitate a long time before it certifies that a nonlawyer possesses "knowledge of legal requirements" * * *.

But if that cannot be done, then by what token do accountants appear as practitioners rather than as expert witnesses?

Again it is said that-

This bill puts the accountant entirely at the mercy of a committee The Credentials Committee has considerable discretion as to his

admission.

But this is just a half-truth. The Credentials Committee, under the bill, has no authority over technical qualifications (since these matters are left to the Treasury, or other agency), but only over matters of character and repute.

There are many other statements and innuendoes in the statement submitted on behalf of the Institute of Accountants. I shall not dwell on them further, but later in this statement, I shall relate them to particular provisions of the bill.

Let me say now, however, that we all well understand the concern of nonlawyer practitioners that their means of livelihood shall not be unduly restricted or curtailed, just as we would feel with respect to licensed lawyers. Perhaps the fact that they have not read this bill correctly proves the point that they are technicians, and not lawyers, and that their proper field is that of the facts rather than the law.

Undoubtedly they are more adept at reading administrative regulations than in understanding the meaning and use of statutory materials. But, however that may be, we recognize both that they have a place in tax work, and that they are not dispossessed by this bill.

It will be fitting at this point to supplement and contrast these views of nonlawyer practitioners with the entirely different views of the administrative agencies concerned.

I would like to next take up the comments as submitted by administrative agencies.

About a dozen administrative agencies have submitted written views to this committeee. Presumably any oral presentation made by them at these hearings will be similar. Four agencies either approve, or do not disapprove the bill. Two find it unnecessary. Three are critical in varying degrees. Three raise objections without realizing that their operations are not subject to the bill.

I would like to digress at this time and state that Mr. Ford and I learned only yesterday that the Treasury had submitted a report, and we would like to have an opportunity to analyze that report and submit a statement with respect to it at a later date.

Mr. GWYNNE. We will be glad to have your comment on the report. When that is filed, it will be made a part of the record.

Mr. RANDALL. Thank you, sir.

(The statement is as follows:)

The letter from the Treasury dated July 2, 1947, raises many questions. Some are matters of legislative policy. Others have been touched upon in these hearings and in the statement submitted on behalf of the American Bar Association. Certain technical questions are raised and require consideration.

(1) The right of an individual to practice in his own behalf, under section 2, by operation of law means of course the right of any guardian or trustee to operate in his behalf.

(2) The problem of representation on foreign shores is provided for in the bill by the provision in section 5 that counsel may be admitted for the purposes of a particular case without credentials.

(3) We see no public policy reason why the bill does not properly provide for a self-supporting activity, particularly in a matter of professional licensing where that has long and widely been the practice in this country. If there is an technical deficiency in the bill in so providing so that there will be no need for appropriations by each Congress, it should of course be corrected.

(4) The provision of section 3, authorizing the credentials committee to require the submission of information, does not confer the subpena power. Nor is it necessary that it do so. As we read it, it properly means that on request any agency of the Government shall submit to the committee any pertinent data the latter needs for its work and, on the other hand, any applicant for credentials must do the same on request or risk denial of credentials therefor.

(5) The language of the second half of the first sentence of section 4 obviously is intended to mean that "no [third] person" shall solicit or procure representation by the holder of credentials.

(6) In section 4 the word "adapted" rather than "adopted" appears to us to have been used advisedly because the canons of ethics must to some extent be "adapted" rather than "adopted."

(7) The suggestion that the bill be turned into one for the general licensing of accountants conflicts with the next suggestion, in the Treasury letter, that nonlawyer licensing be left entirely to each agency. The bill does the latter to a great extent, but it necessarily centralizes the issuance of credentials for purposes of administration.

(8) Section 6, as the Treasury letter implies, should be revised if necessary to make it plain that agencies, in certifying existing practitioners, shall not be required to investigate and determine the "extent of prior practice” or “practice” in which the applicant is engaged. This may be done by simply making it clear that the applicant shall state those facts, leaving it to the agency to do no more than certify his prior admission to practice before it.

(9) Although the difficulties with the word "revocable" which the Treasury letter finds in section 6 appear strained, there should be no objection to the adoption of language which would make it plain that the agency which issues a certification under that section shall have authority to withdraw it.

(10) The bill should have no effect upon the regulation of customhouse brokers.

(11) There is no discrimination in the bill between lawyers and laymen, in the matter of revoking credentials. The bill merely makes the necessary distinction required by the judicial system as it applies to the bar.

(12) We have heretofore suggested revisions in the language of the bill relating to hearings upon revocation of credentials and judicial review thereof. (13) The Treasury letter makes many suggestions relating to section 8 regarding the qualification or disqualification of lawyers during or after Federal service. Chiefly it is suggested there that lawyers should not be barred forever from handling privately what they may have worked upon officially, but that they should be barred for only 2 years. As it stands the bill writes in the canon of legal ethics otherwise pertaining to lawyers. Whether or not that should be done is a matter for legislative determination. Certainly, however, those features which make it possible for lawyers to serve their government without the accrual thereby of crippling disabilities should be retained in the bill. The Treasury letter appears to agree with that objective.

Mr. RANDALL. Although it will save time and aid the committee more to discuss the comments of the agencies later in connection with the several provisions of the bill, at this point I might make mention of some of the types of comments made.

Several agencies have failed to take account of the definitions in section 2, and hence have misread the application of the criminal sanctions provided in section 8. Others have confused the distinction between witness, or the equivalent, on the one hand, and the practitioner who holds himself out to serve all comers for all purposes.

The exclusion of newly licensed laymen from generally practicing in these proceedings in which a record is made for court review concerns two agencies. Several desire authority to disbar lawyers. Then there is a host of minor objections or suggestions, some of which have a degree of merit. I shall deal with all of them in a moment, when I come to discuss the several provisions of the bill, one by one.

However, since a third of the responding agencies approve the bill, and most of the remainder merely make suggestions for changes, this is the time to point out that the measure is not one which meets with

any such opposition as we have just noted with respect to certain groups of nonlawyer practitioners.

In the case of the government agencies, therefore, I take it that the job here is to examine into the suggestions they make for improving or perfecting the bill.

In the case of the nonlawyer practitioners, on the other hand, the problem will be to demonstrate either that their fears are unfounded. or that the limitations of which they complain are just, equitable, and

necessary.

Mr. GWYNNE. If I could interrupt there, as I understand it judging from the letters that I have, there is one group of people who think no law should be passed, and that it should be left to the entire discretion of the agency.

On the other hand, there is another group which feels that this bill does not go far enough. As I understand your position, it is rather between the two, is that right?

Mr. RANDALL. That is correct, Mr. Chairman. Some of our bar associations have vigorously contended that the bill does not go far enough.

Mr. GWYNNE. Continue, Mr. Randall.

Mr. RANDALL. So far we have discussed (1) the general position of the American Bar Association; (2) the structure and objectives of the bill; (3) the hasty reactions of two groups of nonlawyer practitioners; and (4) the comments of interested administrative agencies.

With this background, I should like to conclude this statement with a discussion, so far as my time permits, of the several sections and detailed provisions of the bill.

THE PROVISIONS OF H. R. 2657

In the discussion which follows it may help if we take up the several sections in their order, each under its own heading, and the several sentences and clauses of each section in their order. First I shall recite the text of the bill as to the provision under discussion, and then make such comments as we think may be of interest to the committee at this time. In the draft of his statement I have inserted suggested changes in italics, and have indicated suggested omissions by the use of black brackets.

TITLE

SECTION 1. This act may be cited as the "Administrative Practitioners Act.” (NOTE. No comment or criticism has been made respecting the title assigned in section 1 of the bill. We might say at this point, however, that it is fortunate that this subject is to be treated by a separate statute devoted exclusively to the problem. It is too large a subject for any mere rider, as has often been attempted in the past. It is a field in itself and, if worth attempting at all, it requires intensive and extensive attention.)

DEFINITIONS

SEC. 2. Terms shall have the same meaning as in the Administrative Procedure Act (Public Law 404, 79th Cong.)

(NOTE. This incorporation of definitions by reference is important, and failure to take account of it has caused some people to assume coverage by this bill which is excluded by the definitions.)

"Individual" means a natural person. "Credentials" means certificates and annually renewable cards of admission to practice issued pursuant to this act. "Credentials Committee" means the agency established pursuant to section 3.