MISCONDUCT BY ATTORNEYS OR PARTY REPRESENTATIVES BEFORE THE NATIONAL LABOR RELATIONS BOARD (NLRB) Section 102.177 of the Board s Rules and Regulations controls the conduct of attorneys and party representatives/non attorneys before the NLRB. 29 C.F.R. 102.177. That Section is entitled: Exclusion from hearings; Refusal of witness to answer questions; Misconduct by attorneys and party representatives before the Agency; Procedures for processing misconduct allegations. The Section was last revised in 1997. The Board s original rule was enacted in 1959. I. Potential Sanctions for Misconduct The standards of ethical and professional conduct required of practitioners before the courts also are required to appear and practice before the NLRB, whether an individual is an attorney or not. In prior cases, the Agency has applied the rules of professional conduct of the state where the hearing with alleged misconduct took place. Misconduct by any person at a hearing before an Administrative Law Judge (ALJ) is grounds for exclusion from the hearing. An ALJ, Hearing Officer, and the Board also have authority to admonish or reprimand any person who engages in misconduct at a hearing, but only after due notice. Misconduct of an aggravated character is grounds for suspension and/or disbarment from practice before the Agency and/or other sanctions. II. NLRB Procedure for Handling Allegations of Misconduct of an Aggravated Character For misconduct of an aggravated character, a formal proceeding applies. Any person may submit an allegation to the Investigating Officer of NLRB headquarters in Washington D.C. The Investigating Officer is the Associate General Counsel in the NLRB s Division of Operations Management, which oversees all NLRB regional offices where hearings are conducted. The Investigating Officer conducts an investigation of the misconduct allegations, using the same statutory investigatory powers the Board has. See 29 U.S.C. 161. This includes the power to subpoena witnesses to testify and obtain documentary or other evidence. At the conclusion of the investigation, the Investigating Officer makes a recommendation to the NLRB s General Counsel, who determines whether the evidence warrants the initiation of disciplinary proceedings against the attorney or party representative. If the General Counsel determines disciplinary proceedings are not warranted, the decision is final. If the General Counsel institutes disciplinary proceedings, a complaint issues after the Respondent is notified of the allegations in writing and afforded a reasonable opportunity to respond. The Complaint must include the following: 1
1. A statement of the acts which are claimed to constitute the misconduct, including the approximate date and place of such acts together with a statement of the discipline recommended; 2. Notification of the right to a hearing before an Administrative Law Judge with respect to any material issues of fact or mitigation; and 3. An explanation of the method by which a hearing may be requested. Thereafter, the Board s regular rules for conducting a hearing apply, including that any hearing on the disciplinary complaint is public. The person who initially brought the misconduct allegations to the Board receives notice of the disciplinary hearing, but is not a party and cannot examine witnesses or introduce evidence. A party found to have engaged in misconduct by an Administrative Law Judge and the Board may seek judicial review of the administrative determination. Exclusion from a hearing, admonishments, and reprimands are not subject to the Board s formal disciplinary proceedings. III. Recent Board Decisions Pursuant to Section 102.177 Mail Contractors of America, 347 NLRB 1158 (2006) The Board held, 2 1, that an Administrative Law Judge improperly issued an admonishment to an attorney without due notice. In the ALJ s decision in the underlying unfair labor practice proceeding, the Judge issued a Notice of Potential Admonishment, Reprimand or Summary Exclusion to the Respondent s attorney. In it, the ALJ described the attorney s conduct in detail and concluded that in its entirety, [the] conduct was not of a professional level expected in appearances before a court. The specific examples of misconduct included questioning a witness in an intimidating fashion; misstatement of facts as to who the proper collective bargaining representative was; speaking too loudly and making exaggerated gestures; inappropriate remarks and comments, including laughing and chuckling in response to a ruling and improper responses to objections; ignoring the Judge s instructions not to call witnesses by their first names and that only one counsel per witness voice objections; prolonging the proceedings by repeatedly asking questions covered by prior rulings and having to be directed to continue examining witnesses; and continuing to argue after rulings on routine matters. In the Notice, the Judge indicated that, if the attorney repeated such conduct at future Board proceedings, the attorney would be subject to admonishment, reprimand, or exclusion from the hearing. 2
The Board majority agreed with the attorney on appeal that the Judge s Notice of Admonishment itself constituted an admonishment. In that regard, the majority noted the potential negative impact that the Notice of Admonishment could have on the attorney s reputation and business. Because it was not disputed that the Judge included the Notice in his decision without previously notifying the attorney of the misconduct allegations, the Board concluded that due notice was not provided for the admonishment, as required by the Board s Rule. The Board found that the attorney had no opportunity to contest the Judge s assertions or to modify his behavior during the hearing. Accordingly, it struck the Notice of Potential Admonishment. The Board s dissenting member concluded that the Notice of Admonishment itself constituted the due notice required under the Board s regulation and was not an admonishment standing alone. The Earthgrains Company, 351 NLRB 733 (2007) The Board referred to the Investigating Officer allegations of misconduct by Respondent s counsel that were detailed by the Administrative Law Judge in the Credibility and Attorney Misconduct sections of his decision in an unfair labor practice trial. In doing so, the Board specifically disavowed the Judge s granting of a request by the attorney for the NLRB General Counsel to recommend that the Board sanction the attorney. The Board noted that allegations of misconduct were not to be submitted to the Board in the first instance. In addition, the Board indicated a preference for ALJs not to address misconduct allegations in their decisions, but instead submit the misconduct allegations directly to the Investigating Officer. In the underlying decision, the ALJ described the attorney s misconduct as preparing a statement for a witness without asking what the witness knew, while knowing that the witness would sign anything that had been prepared because a client representative had coerced the witness into doing so. The Judge also noted that the attorney s conduct at the hearing was disruptive and abrasive, bordering on contemptuous, resulting in the ALJ having to caution the attorney not to continue the behavior. 3
In Re Kirk Caraway, 347 NLRB 884 (2006) and In re James Simpson, 347 NLRB 883 (2006) In these cases, the Board entered orders pursuant to formal settlement agreements of misconduct complaints issued by the NLRB General Counsel following a Regional Director s submission of misconduct allegations to the Investigating Officer. The Board orders resulted in the admonishment of one attorney and a reprimand of the other. To support the admonishment order, the parties stipulated to certain facts of misconduct, which the attorney engaged in having not complied with applicable rules concerning disclosure of confidential information and conflict of interests, and having failed to obtain a valid written or oral waiver of conflict of interests from his clients. The misconduct included the attorney, while representing an employer in NLRB proceedings, obtaining signed representation agreements from nine employees of the employer, after the employer presented the employees with the representation agreements. In addition, the attorney did not meet with eight of the nine employee clients until almost two weeks after the representation agreements were signed. The attorney never met with one additional employee client. When meeting with the employee clients, the attorney interrogated them regarding union representation matters, including asking them if they wished to be represented by a union, in the presence of their employer. The formal settlement also provided that the NLRB General Counsel would report the misconduct to the applicable state s Board of Professional Responsibility. The attorney agreed to strictly follow the applicable state s Rules of Professional Conduct 1.7, Conflict of Interest General Rule; 1.8, Conflict of Interest Prohibited Transactions; and 5.4, Professional Independence of a Lawyer. To support the reprimand order, the parties also stipulated to certain facts of misconduct, which again the attorney engaged in having not complied with applicable rules concerning disclosure of confidential information and conflict of interests, and having failed to obtain a valid written or oral waiver of conflict of interests from his clients. The misconduct included that the attorney, while representing the same employer in NLRB proceedings, met with a group of the employer s employees and provided legal advice without having complied with applicable rules concerning disclosure of potential conflicts of interest; obtained signed statements from employees that were subsequently submitted to the Board without adequate factual investigation; and procured and paid for the services of the attorney who was admonished to represent the employees before the Board, without complying with applicable rules concerning the disclosure of a potential conflict of interest. The settlement also provided that the NLRB General Counsel would report the misconduct to the applicable state s Board of Professional Responsibility. The attorney agreed to strictly follow the applicable state s Rules of Professional Conduct 3.3, Candor Toward the Tribunal; 4.3, Dealing with an Unrepresented Person; and 1.3, Diligence. 4
In re Uzi Einy, 352 NLRB 1178 (2008) (two member Board decision/non precedential) In agreement with the Administrative Law Judge, the Board suspended the Respondent from practicing before or appearing on behalf of a party before the Board for 6 months. Respondent had appeared pro se at the underlying unfair labor practice hearing representing a business in which he had a substantial ownership interest. The ALJ determined that the representative had submitted answers in the underlying unfair labor practice hearing in which he refused to admit factual allegations that the representative knew had been established in prior Board proceedings in which he participated. This resulted in the government having to present evidence to prove those allegations, wasting time and resources. The Judge also found that the representative acted in an unprofessional manner during the hearing, causing disruption and delay. The unprofessional conduct included talking loudly at the counsel table and failing to pay attention to the proceedings; interrupting testimony of witnesses; interrupting opposing counsel, the interpreter, and the judge; arguing after the judge had made rulings; failing to follow the judge's instructions; and attempting to communicate with a witness who was testifying. The Judge concluded that the representative violated the following rules of professional responsibility in the applicable state: 1 102, Misconduct; 7 102, Representing a Client; and 7 106, Trial Conduct. The ALJ also cited to ABA Model Rules of Professional Conduct 3.1, Meritorious Claims and Contentions; 3.3, Candor Toward the Tribunal, and Rule 3.5, Impartiality and Decorum of the Tribunal. In the underlying proceeding, 675 West End Owners Corp., 345 NLRB 324 (2005), the Board also upheld the Judge s recommendation that the Respondent pay the litigation costs expended by the Union, as the Charging Party, and the government as a result of the same representative s willful violation of the ALJ s instructions regarding subpoenas. However, the Board again refused to adopt an ALJ recommendation that the Board warn the representative about his misconduct, instead referring the misconduct to the Investigating Officer. That referral led to the subsequent Board decision detailed above. In Re David M. Kelsey, 349 NLRB 327 (2007) The Board entered a default judgment against Respondent, leading to a 6 month suspension from practicing before the Board. The complaint alleged that Respondent, a corporate director of the employer, engaged in misconduct while acting as the employer s representative during a Board unfair labor practice proceeding. The misconduct alleged in the complaint involved dishonesty, fraud, deceit or misrepresentation during his testimony both as to the reason he was not licensed to practice law and as to whether the employer had produced certain subpoenaed documents. The representative also was disrespectful towards witnesses, the interpreter, counsel for the General Counsel, and the administrative law judge. He repeatedly asked witnesses irrelevant questions and cumulative questions despite being cautioned not to do so. In addition, he denied a supervisory allegation in the unfair labor practice complaint without a nonfrivolous basis in fact or law to do so. 5
In Re Charles Murphy, 338 NLRB 769 (2002) The Board entered an order pursuant to a formal settlement agreement which suspended the Respondent from appearing as a representative for any party for a 1 year period. Respondent was the vice president of a union. He was alleged in a misconduct complaint to have struck an individual in the face while acting as an observer for the union during an NLRB conducted election. The individual he struck was the decertification petitioner who sought the election in order to remove the union as the employees collective bargaining representative. 6