Midwest Disability, P.A. Midwest Disability, P.A. Midwest Disability, P.A.

Right to Counsel

With the impending change of administrations, many are speculating on potential modifications to federal programs, such as Social Security. Some persons in the Social Security Administration have even questioned why an attorney is necessary at a hearing. Isn't the informal process non-adversarial? Can we reduce judicial reversals and procedural errors without interference from counsel? While any attempts to improve efficiencies are laudable, the right to counsel should not be easily dismissed.

While there is no constitutional obligation upon federal agencies to provide counsel in administrative hearings, the Supreme Court has held that the right to counsel in certain cases falls within the scope of due process under the Fourteenth Amendment (Tomkins v. Missouri, 323 U.S. 485 (1945). Under the Federal Administrative Procedures Act, any person compelled to appear in person before a federal agency shall be afforded the right to counsel in any agency proceeding (Administrative Procedure Act §6(a), 5 U.S.C. §1005(a) (1952)). However, courts do not extend the right to counsel in every administrative trial or proceeding. In the administrative field, the right to counsel is usually granted for adjudicatory proceedings, but denied in investigatory proceedings.

Should a party choose to employ and consult with counsel in a judicial type of hearing, the agency's refusal to hear counsel would reasonably be a denial of hearing, and therefore, of due process in the constitutional sense (Powell v. Alabama, 287 U.S. 45, 71 (1932)). "What, then, does a hearing include? Historically and in practice, in our country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right" (Id. at 68-69). If we are to preserve the rights of the public as well as the individual, objections to counsel at informal hearings must be closely scrutinized.

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Midwest Disability, P.A.
408 Northdale Boulevard Northwest
Coon Rapids, MN 55448
Toll Free: 888-351-0427
Fax:763-862-7521
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