B-140074, JULY 29, 1959, 39 COMP. GEN. 58

B-140074, JULY 29, 1959, 39 COMP. GEN. 58

CIVILIAN PERSONNEL - TRAINING - LEGAL COURSES - DEFENSE DEPARTMENT APPROPRIATION PROHIBITION WHILE THE TRAINING OF QUALIFIED ATTORNEYS EMPLOYED IN THE DEPARTMENT OF DEFENSE IN SPECIALIZED LEGAL SUBJECTS RELATING TO THEIR OFFICIAL DUTIES, SUCH AS COURSES IN GOVERNMENT CONTRACTS AND IN TRIAL TECHNIQUES, CONSTITUTES LEGAL TRAINING, SUCH TRAINING DOES NOT CONSTITUTE "TRAINING IN A LEGAL PROFESSION," WHICH IS PROHIBITED BY SECTION 618 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1959, 72 STAT. 727, AND, IN VIEW OF THE SPECIFIC AVAILABILITY OF APPROPRIATIONS FOR TRAINING OF CIVILIAN EMPLOYEES WHEN APPROVED BY THE SECRETARY OF ONE OF THE MILITARY DEPARTMENTS, SUCH LEGAL TRAINING CONTRACTS WILL NOT BE OBJECTED TO WHEN APPROVED. WHILE THE PROHIBITION IN SECTION 618 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1959, 72 STAT. 727, AGAINST THE USE OF FUNDS FOR TRAINING IN ANY LEGAL PROFESSION IS INTENDED PRIMARILY TO PRECLUDE THE TRAINING OF INDIVIDUALS AT GOVERNMENT EXPENSE FOR THE PURPOSE OF OBTAINING LAW DEGREES AND QUALIFYING AS ATTORNEYS, IT CANNOT BE CONSTRUED TO APPLY ONLY TO UNDERGRADUATE LAW COURSES LEADING TO A DEGREE OR TO EXCLUDE GRADUATE COURSES; THEREFORE, EACH CASE MUST BE CONSIDERED ON ITS OWN MERITS.

TO THE SECRETARY OF THE ARMY, JULY 29, 1959:

ON JUNE 26, 1959, MR. FRANKLIN L. ORTH, DEPUTY ASSISTANT SECRETARY OF THE ARMY, REQUESTED OUR DECISION AS TO WHETHER CERTAIN LAW COURSES FOR CIVILIAN EMPLOYEES CONSTITUTE COURSES FOR TRAINING WITHIN THE PROHIBITION OF SECTION 618, DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1959, 72 STAT. 727.

SECTION 618 PROVIDES THAT:

NONE OF THE FUNDS PROVIDED IN THIS ACT SHALL BE AVAILABLE FOR TRAINING IN ANY LEGAL PROFESSION NOR FOR THE PAYMENT OF TUITION FOR TRAINING IN SUCH PROFESSION: PROVIDED, THAT THIS LIMITATION SHALL APPLY TO THE OFF-DUTY TRAINING OF MILITARY PERSONNEL AS PRESCRIBED BY SECTION 623 OF THIS ACT.

YOUR DEPARTMENT'S DOUBT IN THE MATTER CONCERNS WHETHER ATTENDANCE AT COURSES OFFERED AS PART OF THE REGULAR CURRICULUM OF A LAW SCHOOL IS PROHIBITED BY THE STATUTE WHEN THE EMPLOYEE INVOLVED IS A QUALIFIED ATTORNEY AND THE TRAINING IS PRIMARILY IN THE INTERESTS OF THE GOVERNMENT RATHER THAN FOR THE BENEFIT OF THE EMPLOYEE. SPECIFICALLY, OUR DECISION IS REQUESTED AS TO WHETHER THREE CONTRACTS, DESCRIBED BELOW, MAY BE APPROVED--- IT BEING STATED THAT TRAVEL AND TRANSPORTATION COSTS ARE NOT INVOLVED AND ATTENDANCE AT COURSES IS OUTSIDE REGULAR DUTY HOURS.

1. CONTRACTS WITH THE GEORGE WASHINGTON UNIVERSITY FOR A FULL ACADEMIC SEMESTER FOR THE TRAINING IN GOVERNMENT CONTRACTS OF TWO GENERAL ATTORNEYS, GS-15 AND GS-13. THE COURSE IS LISTED IN THE GEORGE WASHINGTON UNIVERSITY CATALOG 1958-1959, ON PAGE 349 AS "431 GOVERNMENT CONTRACTS " THIS IS A GRADUATE COURSE INVOLVING ATTENDANCE AT A SERIES OF 17 TWO-HOUR LECTURES ON A SPECIALIZED LEGAL TOPIC RELATED TO THE OFFICIAL DUTIES OF THE TWO ATTORNEYS.

2. A CONTRACT WITH GEORGE WASHINGTON UNIVERSITY FOR TWO FULL ACADEMIC SEMESTERS FOR TRAINING IN GOVERNMENT CONTRACTS OF ONE ATTORNEY ADVISOR ( GENERAL), GS-12. THE COURSES AS LISTED IN THE CATALOG ARE "431 GOVERNMENT CONTRACTS I" DURING THE FIRST SEMESTER, AND "432 GOVERNMENT CONTRACTS II FOR THE SECOND SEMESTER, WITH EACH SEMESTER COMPOSED OF 17 TWO-HOUR LECTURES.

3. A CONTRACT WITH THE PRACTICING LAW INSTITUTE, 20 VESEY STREET, NEW YORK, NEW YORK, FOR TRAINING IN TRIAL TECHNIQUES OF 2 ATTORNEY ADVISORS ( GENERAL), GS-11 AND GS-12. THE COURSE CONSISTS OF DEMONSTRATION, LECTURES, AND PANEL DISCUSSIONS. IT DEVELOPS MASTERY OF THE TRIAL LAWYER'S METHODS AND SKILLS AND COVERS PRACTICAL SUGGESTIONS AND ILLUSTRATIONS OF TECHNIQUES, STRATEGY, AND TACTICS IN TRIAL OF CASES. ATTENDANCE AT THE COURSE IS INTENDED TO ACCELERATE TRAINING OF GOVERNMENT TRIAL ATTORNEYS SO THEY ARE AS THOROUGHLY EQUIPPED AS POSSIBLE TO REPRESENT THE GOVERNMENT IN HEARINGS BEFORE THE CORPS OF ENGINEERS CLAIMS AND APPEAL BOARD. THE COURSE CONSISTS OF 30 CLASSROOM HOURS FOR EACH ATTORNEY.

IN THE EVENT OUR DECISION IS THAT THESE CONTRACTS MAY BE APPROVED, A SECOND QUESTION IS RAISED, NAMELY,"DOES THE PHRASE "TRAINING IN ANY LEGAL PROFESSION" APPEARING IN THE ACT APPLY ONLY TO UNDERGRADUATE COURSES LEADING TO A DEGREE AND QUALIFICATION AS AN ATTORNEY?"

THE CURRENT PROHIBITION AGAINST TRAINING IN ANY LEGAL PROFESSION BY THE MILITARY ESTABLISHMENTS MAY BE TRACKED BACK TO SECTION 636 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, PUBLIC LAW 488, 66 STAT. 537. A REVIEW OF THE LEGISLATIVE HISTORY OF THAT ACT DISCLOSES THAT THE PHRASE ,TRAINING IN ANY LEGAL PROFESSION" WAS INTENDED PRIMARILY TO COVER THE PURSUIT OF DEGREES IN LAW, THAT IS, THE TRAINING OF INDIVIDUALS FOR THE PURPOSE OF QUALIFYING THEM AS LAWYERS. SECTION 637 OF HOUSE OF REPRESENTATIVES BILL NO. 7391, 82D CONGRESS, 2D SESSION, WHICH WAS ENACTED AS PUBLIC LAW 488, PROHIBITED TRAINING IN BOTH ANY LEGAL OR BUSINESS PROFESSION. THIS SECTION WAS STRICKEN BY A COMMITTEE AMENDMENT BECAUSE OF THE INCLUSION OF TRAINING IN ANY BUSINESS PROFESSION WITHIN THE PROHIBITION. THE FOLLOWING EXCERPTS FROM THE SENATE DISCUSSION OF SECTION 637, RECORDED IN 98 CONG. REC. 8583 (1952), CLEARLY SHOW THE INTENDED PURPOSE OF PROHIBITING THE TRAINING OF INDIVIDUALS FOR THE PURPOSE OF QUALIFYING THEM AS LAWYERS:

MR. MONRONEY. * * * I REALIZE THAT THE LANGUAGE OF THE SECTION ADOPTED BY THE HOUSE WAS ENTIRELY TOO RESTRICTIVE, BUT I HOPE THAT THE CONFEREES, BECAUSE THE HOUSE PROVISION IS STRICKEN OUT, WILL NOT GIVE CARTE BLANCHE TO THE ARMED SERVICES TO SEND TO LAW SCHOOL FOR ANOTHER PERIOD OF 3 YEARS MANY OFFICERS WHO HAVE COMPLETED 4 YEARS AT WEST POINT OR ANNAPOLIS AND HAVE BECOME MILITARY OFFICERS. * * *

I HOPE THAT THE CONFEREES WILL AGREE UPON A PROVISION OF SOME KIND WHICH WILL HELP RESTRICT THE SENDING OF OFFICERS TO LAW SCHOOLS. * * * TO SUMMON A RESERVE OFFICER FROM HIS HOME AND PERHAPS FROM HIS PRIVATE LAW PRACTICE, AND SEND HIM TO SERVE IN KOREA, WHILE REGULAR COMMISSIONED OFFICERS ARE ATTENDING CIVILIAN LAW SCHOOL AT GOVERNMENT EXPENSE FOR THE PURPOSE OF OBTAINING LAW DEGREES, DOES NOT MAKE VERY GOOD SENSE TO ME.

MR. O-MAHONEY. * * * IN STRIKING OUT THIS HOUSE PROVISION, WE DID SO IN THE BELIEF THAT IT WOULD BE NECESSARY IN CONFERENCE TO WORK OUT A MORE REASONABLE PROHIBITION. IT IS ALTOGETHER WRONG THAT LINE OFFICERS SHOULD BE SENT TO LAW SCHOOL FOR 4 YEARS, AND THEN SENT BACK TO THE LINE. IT IS ALTOGETHER UNREASONABLE THAT, WITH THE LARGE NUMBER OF REGULAR OFFICERS ALREADY TRAINED IN LAW AND SERVING IN THE LINE, MORE SHOULD BE TRAINED.

IT WAS IN THIS CONTEXT THAT THE PROHIBITION AGAINST TRAINING IN ANY LEGAL PROFESSION WAS RESTORED AND BECAME SECTION 636 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953. THERE IS NO INDICATION IN THE LEGISLATIVE HISTORIES OF ANY OF THE ACTS CONTAINING SUCH PROHIBITION THAT THE PROHIBITION WAS INTENDED TO APPLY TO QUALIFIED ATTORNEYS ENROLLED IN COURSES OFFERING TRAINING IN SPECIALIZED SUBJECTS RELATING TO THEIR OFFICIAL DUTIES. THAT SUCH COURSES MIGHT BE PART OF THE REGULAR CURRICULUM OF A LAW SCHOOL WOULD NOT APPEAR TO BE CONTROLLING.

SECTION 603 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1959, 72 STAT. 723, PROVIDES IN PERTINENT PART:

APPROPRIATIONS CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR * * * ALL NECESSARY EXPENSES AT THE SEAT OF GOVERNMENT OF THE UNITED STATES OF AMERICA OR ELSEWHERE, IN CONNECTION WITH (1) INSTRUCTION AND TRAINING, INCLUDING TUITION, SPECIFICALLY APPROVED BY THE SECRETARY OF THE DEPARTMENT CONCERNED AND NOT OTHERWISE PROVIDED FOR, OF CIVILIAN EMPLOYEES, * * *

WHILE TRAINING UNDER THE CONTRACTS IN QUESTION WOULD CONSTITUTE LEGAL TRAINING, SUCH TRAINING OF QUALIFIED ATTORNEYS WOULD NOT, IN OUR OPINION, INVOLVE TRAINING IN A LEGAL PROFESSION AS CONTEMPLATED BY THE STATUTE, AND IN VIEW OF THE AUTHORITY CONTAINED IN SECTION 603, OUR OFFICE WOULD NOT BE REQUIRED TO OBJECT TO YOUR APPROVING THESE CONTRACTS.

CONCERNING THE SECOND QUESTION RAISED, WE CANNOT CATEGORICALLY STATE THAT THE PHRASE "TRAINING IN ANY LEGAL PROFESSION" APPLIES ONLY TO UNDERGRADUATE LAW COURSES LEADING TO A DEGREE AND QUALIFICATION AS AN ATTORNEY. EACH CASE MUST BE CONSIDERED ON ITS OWN MERITS. WHILE THE PROHIBITION IS INTENDED PRIMARILY TO PRECLUDE FINANCING BY THE GOVERNMENT OF LAW DEGREES FOR INDIVIDUALS AND COURSES ATTENDED BY QUALIFIED ATTORNEYS WOULD NOT NORMALLY BE INCLUDED THEREIN, THAT IS NOT TO SAY THAT TRAINING ON A HIGHER LEVEL WOULD BE AUTOMATICALLY EXEMPTED FROM THE PROHIBITION. FOR EXAMPLE, ENROLLMENT OF AN ATTORNEY IN A COURSE OF INSTRUCTION FOR THE SOLE PURPOSE OF HIS OBTAINING A MASTER OF LAWS DEGREE MIGHT BE CONSIDERED TRAINING IN A LEGAL PROFESSION PRECLUDED BY THE STATUTE.