B-161952, AUGUST 10, 1967, 47 COMP. GEN. 116

B-161952, AUGUST 10, 1967, 47 COMP. GEN. 116

OFFICERS AND EMPLOYEES - ATTORNEYS - COURT ADMISSION FEES THE ADMISSION FEE PAID BY A GOVERNMENT ATTORNEY TO PRACTICE BEFORE THE BAR OF A UNITED STATES COURT OF APPEALS, REQUIRED BY THE COURT AS ARBITER OF THE APPLICANT'S QUALIFICATIONS TO PRACTICE BEFORE IT, IS PERSONAL TO THE ATTORNEY, THE PRIVILEGE BEING A LIFE ONE UNLESS DEBARRED REGARDLESS WHETHER THE ATTORNEY REMAINS IN THE GOVERNMENT SERVICE, AND BECAUSE ASIDE FROM THE CAPACITY IN WHICH THE ATTORNEY SERVES THE GOVERNMENT HE IS ALSO AN OFFICER OF THE COURT WITH OBLIGATIONS TO THE COURT AND THE PUBLIC. THEREFORE, THE ATTORNEY ON NOTICE THAT THE NATURE OF HIS GOVERNMENT EMPLOYMENT REQUIRES HIM TO QUALIFY BEFORE FEDERAL COURTS INCLUDING THE SUPREME COURT, AS WELL AS IN A STATE OR OTHER COURT, MAY NOT BE REIMBURSED THE ADMISSION FEE ABSENT SPECIFIC AUTHORITY TO CHARGE APPROPRIATED FUNDS FOR THE EXPENSE. 22 COMP. GEN. 460 REAFFIRMED.

TO WILLIAM L. NORFOLK, NATIONAL LABOR RELATIONS BOARD, AUGUST 10, 1967:

WE REFER TO YOUR LETTER OF JUNE 30, 1967, WITH ENCLOSED VOUCHER FOR $10 IN FAVOR OF MR. WARREN M. DAVISON, COVERING AN EXPENSE NECESSARILY INCURRED BY HIM INCIDENT TO HIS ADMISSION TO PRACTICE AS AN ATTORNEY FOR THE GOVERNMENT BEFORE THE BAR OF THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. YOU SAY THAT YOU HAVE SEVERAL SIMILAR CLAIMS PENDING AND ASK OUR EARLY DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT. WE ASSUME THAT YOUR INQUIRY IS MADE UNDER 31 U.S.C. 82D IN YOUR CAPACITY AS AUTHORIZED CERTIFYING OFFICER.

IN YOUR LETTER YOU SUGGEST THAT THE EXPENSE MIGHT BE VIEWED AS OF AN OFFICIAL NATURE RATHER THAN PERSONAL. MR. DAVISON EXPRESSES THE VIEW THAT HAVING QUALIFIED FOR EMPLOYMENT AS AN ATTORNEY IT IS WRONG FOR THE TENTH CIRCUIT COURT TO EXACT A FURTHER FEE FOR ADMISSION TO PRACTICE BEFORE THAT COURT BUT IF SUCH A FEE IS AUTHORIZED HE SHOULD BE REIMBURSED BY THE GOVERNMENT.

IN OUR DECISION 22 COMP. GEN. 460 (1942), WE CONSIDERED AN ANALOGOUS CASE AND RULED (1) THAT ADMISSION TO PRACTICE BEFORE A FEDERAL COURT WAS A MATTER OF PERSONAL QUALIFICATION FOR THE ATTORNEY CONCERNED AND (2) THAT THE PARTICULAR AGENCY'S APPROPRIATIONS WERE NOT AVAILABLE TO REIMBURSE ATTORNEYS FOR A NOMINAL FEE REQUIRED BY THE COURT AS A CONDITION OF ADMISSION TO PRACTICE.

IN VIEW OF THE ENACTMENT SINCE THAT DECISION OF LAWS, SUCH AS THE GOVERNMENT EMPLOYEES TRAINING ACT, NOW 5 U.S.C. 4101 ET SEQ., RELAXING THE FORMER GENERAL RULE OF SELF-QUALIFICATION FOR GOVERNMENT EMPLOYMENT, A REVIEW OF THE BASIS FOR THE CONCLUSION REACHED IN 22 COMP. GEN. 460 APPEARS TO BE WARRANTED.

THE RULES OF THE UNITED STATES COURT OF APPEALS OF THE SEVERAL CIRCUITS DO NOT APPEAR TO BE UNIFORM WITH REGARD TO THE REQUIREMENT OF AN ADMISSION FEE, ALTHOUGH THEY ARE IN SUBSTANTIAL ACCORD WITH RESPECT TO THE QUALIFICATIONS OF WHICH AN APPLICANT MUST BE POSSESSED TO BE CONSIDERED FOR ADMISSION.

THE GENERAL RULE IS THAT THE COURTS RATHER THAN THE LEGISLATURES ARE THE FINAL ARBITERS OF WHETHER A PARTICULAR APPLICANT IS QUALIFIED FOR ADMISSION TO PRACTICE BEFORE A PARTICULAR COURT. SEE GENERALLY 7 C.J.S., ATTORNEY AND CLIENT, SECTION 4 ET SEQ. IT WOULD SEEM, THEREFORE, THAT A RULE OF A COURT REQUIRING THE PAYMENT OF A NOMINAL ONE-TIME FEE, AS AN INCIDENT TO THE ADMISSION OF AN ATTORNEY TO PRACTICE BEFORE THE COURT, COULD NOT BE SUCCESSFULLY CHALLENGED.

THE PRIVILEGE OF PRACTICING BEFORE A PARTICULAR COURT IS ONE PERSONAL TO THE ATTORNEY AS AN INDIVIDUAL AND ASIDE FROM ANY OTHER CAPACITY IN WHICH HE MAY SERVE THE GOVERNMENT HE IS AN OFFICER OF THE COURT WITH AN OBLIGATION TO THE COURT AND THE PUBLIC NO LESS SIGNIFICANT THAN HIS OBLIGATION TO HIS CLIENTS.

IN THE EYES OF A COURT, THEREFORE, IT WOULD SEEM THAT AN ATTORNEY APPEARING FOR THE UNITED STATES APPEARS ONLY IN HIS INDIVIDUAL PROFESSIONAL CAPACITY WHOSE CLIENT HAPPENS TO BE THE GOVERNMENT. IN THAT REGARD WE NOTE THAT AT ONE TIME THE RULE OF THE COURT OF APPEALS, TENTH CIRCUIT, PROVIDED:

"3. PAYMENT OF SUCH FEE WILL NOT BE REQUIRED OF AN ATTORNEY REPRESENTING THE UNITED STATES OR ANY OFFICER OR AGENCY THEREOF.'

THAT EXCEPTION TO THE RULE APPEARS TO HAVE BEEN DELETED. WE ARE NOT AWARE OF THE REASON FOR THE DELETION BUT THE EXCEPTION WOULD APPEAR TO HAVE BEEN DISCRIMINATORY AGAINST ATTORNEYS ADMITTED TO REPRESENT PRIVATE CLIENTS.

IN ANY CASE THE PRIVILEGE TO PRACTICE BEFORE A PARTICULAR COURT IS PERSONAL TO THE INDIVIDUAL AND IS HIS FOR LIFE UNLESS DISBARRED REGARDLESS OF WHETHER HE REMAINS IN THE GOVERNMENT SERVICE. FURTHER, AN ATTORNEY ACCEPTING EMPLOYMENT IN PARTICULAR AREAS OF THE NATIONAL LABOR RELATIONS BOARD WOULD, IN THE LIGHT OF THE BOARD'S FUNCTIONS, APPARENTLY BE ON NOTICE OF THE NEED-NOTWITHSTANDING HIS ADMISSION TO PRACTICE BEFORE A STATE OR OTHER COURT--- OF FURTHER QUALIFYING HIMSELF TO REPRESENT HIS CLIENT, THE GOVERNMENT, BEFORE THE FEDERAL COURTS INCLUDING THE SUPREME COURT. THE LAST NAMED REQUIRES AS AN INCIDENT TO ADMISSION TO PRACTICE A NOMINAL FEE FROM GOVERNMENT AND PRIVATE ATTORNEYS ALIKE.

BECAUSE OF THE QUASI PUBLIC ROLE OF AN ATTORNEY AS AN OFFICER OF A COURT AND WHAT IS SAID ABOVE WE ARE INCLINED TO THE VIEW THAT THE CONCLUSION REACHED IN OUR DECISION 22 COMP. GEN. 460, REGARDING THE QUESTION OF QUALIFICATION, STILL IS CORRECT.

AN EXAMINATION OF THE ORGANIC LEGISLATION OF THE NATIONAL LABOR RELATIONS BOARD AND OF ITS APPROPRIATIONS INCLUDING 29 U.S.C. 154 DISCLOSES THAT WHILE THE AUTHORITY OF THE BOARD TO INCUR OR REIMBURSE EXPENSES IS BROAD, THERE IS LACKING LANGUAGE SUFFICIENTLY EXPLICIT TO WARRANT A CONCLUSION THAT THE BOARD'S APPROPRIATIONS ARE AVAILABLE TO REIMBURSE THE PECULIAR CLASS OF EXPENSE HERE CONSIDERED.

THEREFORE, THE VOUCHER TRANSMITTED WITH YOUR LETTER WHICH IS RETURNED HEREWITH PROPERLY MAY NOT BE CERTIFIED FOR PAYMENT.