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Preemptive Effect of Federal Law

Some federal agencies allow nonlawyers to represent parties before that particular agency.   Nonlawyers may provide advice or services under circumstances that require the use of legal knowledge or skill in the application of any law, federal, state or local, or administrative regulation or ruling, provided the rules of such agency permit the activity and the nonlawyer is acting within the scope of his or her practice authorized by such agency.   A state bar cannot restrict or interfere with practice rights conferred under federal law. See, e.g., Sperry v. Florida, 373 U.S. 379 (1963) (non-lawyer practitioner before Patent & Trademark Office improperly enjoined by Florida Bar).

Federal Agencies that allow non-lawyers to act on behalf of a party, include the following:

  • Department of Treasury, Internal Revenue Service and Tax Court — 31 U.S.C.§ 330; 5 U.S.C. § 500; 31 C.F.R. § 10.33; IRC § 7452 and Tax Court Rule of Practice and Procedure 200.
  • Immigration and Naturalization Service — 8 C.F.R. § 3.1(d)(3) (extremely limited).
  • Department of Energy — 10 C.F.R. § 205.3.
  • Social Security Administration — 20 C.F.R. § 416.1400
  • Drug Enforcement Agency — 21 C.F.R. § 1316.50
  • National Labor Relations Board — 29 C.F.R. § 102.38
  • Equal Employment Opportunity Commission — 29 C.F.R. § 1601.7
  • Health and Human Services — 45 C.F.R. § 205.10 (a)(3)(iii).

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