Brief summary of Rules pertaining to Non-Advocates in different jurisdictions
United States of America
• Congressional legislation neither grants nor denies the right to have a non-attorney representative in quasi-judicial proceedings.
• The individual fora (administrative law courts) are allowed to create their own rules for non-attorney representatives.
• Several administrative law courts/fora allow non-attorney representatives to appear if they meet certain qualifications.
Social Security Administration
93. In addition to administering Social Security Retirement and Disability payments, the Social Security Administration (SSA) handles disputes arising from Social Security Payments or the lack thereof. If a current or former recipient of social security believes that he has been wrongfully denied some or all of his benefit amount, he may first apply for reconsideration.
94. According to SSA Rules, any attorney in good standing is allowed to represent a claimant before the ALJ and Appeals Council. A non-attorney is allowed to represent a claimant if the non-attorney:
1) Is generally known to have a good character and reputation;
2) Is capable of giving valuable help to you in connection with your claim;
3) Is not disqualified or suspended from acting as a representative in dealings with us; and
4) Is not prohibited by any law from acting as a representative.
95. SSA rules also restrict the amount that any representative of claimant (attorney or non-attorney) may receive for the services rendered by him.
Tax Court
96. The US Tax Court adjudicates disputes over federal income tax. Taxpayers are permitted to litigate in many legal forums (such as a district federal court), but many choose the Tax Court because they may litigate their case without first paying the disputes tax amount in full.
Non-Attorney Representation
97. Tax Court Rules state that all representatives must be admitted to practice before the Tax Court in order to appear in proceedings on behalf of a taxpayer. To be admitted, a non-attorney must pass a special written examination and obtain sponsorship from two persons who are already admitted to practice before the Court.
98. Representatives before the Court are instructed to act “in accordance with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association.” Representatives may be disciplined for inappropriate conduct and may be suspended or banned from appearing in the Court.
Court of Appeals for Veterans’ Claims
99. The Court of Appeals for Veteran’s Claims reviews decision of the Board of Veterans’ Appeals, which adjudicates disputes pertaining to Veteran’s benefits.
Non-Attorney representation
100. A non-attorney may represent claimants if (1) he is under direct supervision of an attorney or (2) he is employed by an organization that the Secretary of Veteran’s Affairs has deemed is competent to handle veterans’ claims. However, if the Court deems it appropriate it may admit non-attorney representatives to represent the claimants.
South Africa
The Equality Court
101. The Equality Court hears complaints pertaining to unfair discrimination, harassment and hate speech. The court rules allow parties in this Court to be represented by lawyers and non-lawyers. However, the rules also require the judge of the court inform a party accordingly if he is of the opinion that a particular non-attorney representative “is not a suitable person to represent the party.”
England and Wales
102. There are two kinds of courts in England that are similar in structure and function to the consumer courts in India: Magistrate Courts and Tribunals.
Magistrates’ Courts
103. Magistrates’ Courts are lowest level of court in England and Wales and deals with minor civil and criminal offences. There are also specialist courts within the Magistrates’ Courts system, such as the Family Proceedings Court and the Youth Court. Under statute, a party may only be represented in a Magistrates’ Court by a “legal representative”. A “legal representative” is a person who has been authorized by a government-approved regulator to perform “reserved legal activities.”
Tribunals
104. England and Wales also have a fairly complex system of tribunals that hear special complaints. These tribunals are similar to US administrative courts in that they are allowed to create their own procedural rules that regulate representation. For instance, the Asylum and Immigration Tribunal permits non-attorney representatives to appear if they meet certain requirements elaborated in Section 84 of the Immigration and Asylum Act, 1999. Other tribunals may follow different procedures.
Small Claims Court
105. There is no bar for small claims court. A non-attorney may appear as a representative without prior authorization from the court. He may, however, be dismissed at the judge’s discretion.
1) Non-attorney advocates do not appear to be bound by any code of conduct. But they may be dismissed by a judge if they judge disapproves of their conduct.
2) The judge may disqualify a non-attorney from appearing in court if the judge “has reason to believe” the non-attorney “has intentionally misled the court, or otherwise demonstrated that he is unsuitable to exercise (the right to be a representative). The statute specifically mentions that the judge may disqualify a representative for conduct done in previous judicial appearances.
3) The court rules and relevant legislation do not appear to prescribe a limit to the number of appearances a non-lawyer can make before the small claims court. However, the statute allows a judge to discipline a non-attorney representative for conduct in previous judicial proceedings. This suggests that if a judge believes a non-attorney is making frequent appearances before a small claims court and charging in appropriate fees, the judge may disqualify the non-attorney from appearing in a particular case.
Australia
106. State Governments in Australia have their own court systems and also specialized courts to deal with certain subject matter. In the State of Victoria, statutory law states that only lawyers may appear in court as representatives with a few exceptions. A non-attorney may represent a party in a cause of action for a debt or liquidated demand if the non-attorney is in the exclusive employment of the aggrieved party. Also, the statute mentions that a non-attorney representative may appear if empowered by some other piece of legislation.
New Zealand
107. New Zealand has a large number of tribunals that are similar to India’s consumer courts and seek to provide quick and easy dispute resolution. There appears to be a strong preference in tribunals for the parties to represent themselves; professional lawyers are rarely allowed to appear as representatives. Two tribunals are discussed below, but New Zealand’s other tribunals should function similarly.
Disputes Tribunal
108. The Disputes Tribunal hears civil complaints that concern amounts less than $15,000. Parties subject to proceedings are generally required to represent themselves. However, the Tribunal may permit a representative to appear on a party’s behalf under certain special circumstances. Representatives may only appear with specific authorization from the Tribunal and cannot be lawyers.
SOURCE: (2011) 9 SCALE 479 : JT 2011 (10) SC 207 : (2011) 9 SCC 707 (SUPREME COURT OF INDIA) IN C. Venkatachalam Versus Ajitkumar C. Shah and Others
