[Federal Register Volume 61, Number 240 (Thursday, December 12, 1996)]
[Rules and Regulations]
[Pages 65323-65332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31571]


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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

[[Page 65326]]

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

[[Page 65327]]

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
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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