Inspection Report No. OIG-INS-18-01-01
Review of Bar Status

UNITED STATES GOVERNMENT
National Labor Relations Board
Office of Inspector General

Memorandum

August 10, 2001
August 14, 2001 (corrected)

To: Peter J. Hurtgen
Chairman

Arthur F. Rosenfeld
General Counsel

From: Jane E. Altenhofen
Inspector General

Subject: Inspection Report No. OIG-INS-18-01-01: Review of Bar Status

We initiated this inspection in March 2001 to evaluate whether Agency attorneys and administrative law judges (ALJs) are authorized to practice law. We found that 98.6 percent of the Agency attorneys and 40 percent of the Agency ALJs are authorized to practice law.

SCOPE

We collected information regarding the status of Agency attorneys and ALJ's authorization to practice law as of June 30, 2001. We reviewed Administrative Bulletin 00-02, Bar Membership, April 6, 2000; 5 CFR 930.201 et seq.; Christensen v. Harris County, 529 U.S. 576 (2000); Pitsker v. OPM, 234 F.3d 1378, 1383 (Fed. Cir. 2000); Meza v. Massanari, 199 F.R.D. 573 (S.D. Tex April 20, 2001); McGean v. NLRB, 15 M.S.P.R. 49 (1983); Office of Personnel Management (OPM) guidance; and the rules pertaining to the authorization to practice law for a variety of states. We interviewed personnel at OPM's Office of Administrative Law Judges. We obtained a complete listing of 811 Agency personnel in the GS-0905 General Attorney Series as of June 11, 2001 and of 60 GS-0935 Administrative Law Judge Series positions as of April 12, 2001. These lists served as the universe for our review.

BACKGROUND

Agency and OPM policy require personnel in GS-0905 General Attorney Series positions be both licensed and authorized to practice law. Although the categories of membership vary from state to state, an attorney may generally select membership in either active or inactive category. We are aware of no jurisdiction in which an "active" member is not regarded as authorized to practice law. Likewise, we are aware of no jurisdiction in which an "inactive" member is authorized to practice law.

OPM's policy is that personnel in GS-0935 Administrative Law Judge Series positions be both licensed and authorized to practice law. OPM regulations state the requirement that ALJ applicants and retired ALJs who are recalled for assignments be both licensed and authorized to practice law, but do not address that requirement for sitting ALJs. There has been much controversy in recent years about the validity of OPM's policy in light of OPM's regulations. As a result, OPM has not enforced the policy and currently has it under review.

ALJs may generally select membership in an active, inactive, or judicial category. We are aware of no jurisdiction in which an "inactive" or "judicial" member is authorized to practice law.

REGIONAL DIRECTORS

We requested that Regional Directors who are attorneys also provide documentation that he or she is authorized to practice law. During the course of our inspection, we found that the Regional Director positions are categorized in the GS-0340 Program Management Series and not in the GS-0905 General Attorney Series. Regional Directors, therefore, are not on the Agency list of attorneys and are not subject to OPM's requirement to be licensed and authorized to practice law.

GENERAL ATTORNEYS

Administrative Bulletin 00-20 states that attorneys employed by the Agency in GS-0905 General Attorney Series positions are required to be a member in good standing of a bar, and maintain a license to practice law. This bulletin also states that "[t]he need to be licensed to practice law by an appropriate licensing authority distinguishes attorney positions from a wide range of paralegal and quasi-legal positions." Correspondence provided by OPM's Office of General Counsel, dated July 28, 1998, states that "requiring admission to the bar in the current standard for General Attorney or Patent Attorney means that one is currently authorized to engage in the practice of law as an attorney under the rules of a state, territory, the District of Columbia or the Commonwealth of Puerto Rico." The correspondence also states that being licensed and authorized to practice law is a continuing requirement necessary to perform the ongoing duties of an attorney.

According to the Agency list of personnel in a GS-0905 General Attorney Series position provided by the Personnel Branch, in June 2001, there were 811 attorneys employed by the Agency. During the course of our inspection, we found that eight attorneys had resigned their positions with the Agency and one attorney was on sick leave awaiting disability retirement. We also found that, although four Board Members were administratively placed in the GS-0905 General Attorney Series, there is no requirement that they be attorneys or authorized to practice law. The General Counsel is an attorney position and was classified in the GS-0905 General Attorney Series.

Our inspection required that each Agency attorney in a GS-0905 General Attorney Series position provide documentation of his or her authorization to practice law as of June 30, 2001. Acceptable forms of documentation included Bar membership cards, Internet membership records, and letters of good standing from a state licensing authority. If the documentation provided by the attorney did not provide evidence of the attorney's authorization to practice law, we contacted the appropriate state licensing authority to verify the attorney's authorization to practice law. Because some state licensing authorities charge a fee for such documentation, upon an attorney's request, we contacted the appropriate state licensing authority to obtain information regarding the attorney's authorization to practice law.

Although our inspection was to determine the status of each attorney's authorization as of June 30, 2001, we continued to accept documentation from attorneys until July 31, 2001. We found that not all of the Agency attorneys in a GS-0905 General Attorney Series position were authorized to practice law. The following table details our findings:

Attorneys on Agency List 811
Resigned Attorneys 8
Board Members 4
Total Attorneys 799
Attorneys Authorized to Practice Law on June 30, 2001 782
Attorneys Authorized to Practice Law on July 31, 2001 787
Attorneys Not Authorized to Practice Law on August 1, 2001 11
Attorneys on Sick Leave Awaiting Disability Retirement 1

ADMINISTRATIVE LAW JUDGES

OPM's policy is that ALJs must be both licensed and authorized to practice law. The policy is based on two opinion letters issued by OPM's Office of the General Counsel. Reliance on these opinion letters is problematic for two reasons. First, the courts have stated that such agency interpretations lack the force of law and do not warrant the same deference as formal rulemaking and actual adjudication. Second, there is no express directive in the current OPM regulations requiring sitting ALJs to be active members of a bar, while there are the regulations specifically require active membership of ALJ applicants and retired ALJs who are recalled to Federal service. Also, the courts have found that an ALJ's inactive membership status does not deprive a litigant of due process.

Because of OPM's lack of enforcement of its policy and in light of the considerable debate between OPM, the ALJ community, and state licensing authorities, we collected documentation concerning the bar membership status of the Agency ALJs solely for statistical purposes. In collecting the documentation from ALJs, we followed the same procedures as outlined above for the attorneys.

According to the Agency list of personnel in a GS-0935 Administrative Law Judge Series position provided by the Personnel Branch, in April 2001, there were 60 ALJs employed by the Agency. During the course of our inspections, we found that two ALJs retired. We found that all Agency ALJs are in good standing with their state licensing authorities, but that they are not all authorized to practice law. At the time of this report, OPM was in the process of reviewing this policy and has not taken any action to mandate that ALJs maintain any particular status. The following table details our findings:

ALJs on Agency List 60
Retired ALJs 2
Total ALJs 58
ALJs Authorized to Practice Law 23
ALJs Not Authorized to Practice Law - Inactive 11
ALJs Not Authorized to Practice Law - Judicial 24

SUGGESTIONS

The Government is entitled to receive legal counsel and representation from attorneys who are authorized to practice law. Undoubtedly, the parties whose cases are prosecuted by this Agency expect that the attorney who is presenting their case is actually authorized to do so. We, therefore, forwarded the names of the attorneys in a GS-0905 General Attorney Series position who were not authorized to practice law to the appropriate management officials. We also suggest that the Agency take greater steps to ensure that its attorneys maintain their authorization to practice law.

Management officials are in the process of taking action to ensure that the attorneys in a GS-0905 General Attorney Series position who are not authorized to practice law comply with Agency and OPM policy.

This review was done in accordance with the Quality Standards for Inspections issued by the President's Council on Integrity and Efficiency.