Rule 46: Practice Before the Court and Representation

(a) Practice Before the Court.

(1) Admission of attorneys to bar of Court.

(A) General. A person of good moral character and repute who has been admitted to practice in the highest court of any state, the District of Columbia, or a United States territory or commonwealth within the meaning of 48 U.S.C. § 1904(e)(5), and is in good standing therein, may be admitted to the bar of the Court upon application. See Rules of Admission and Practice.

(B) Active Status. Practice before the Court requires an attorney to maintain active status in good standing in the highest court of any state, the District of Columbia, or a United States territory or commonwealth within the meaning of 48 U.S.C. § 1904(e)(5).

(C) Application. An attorney at law may be admitted to the bar of the Court upon filing with the Clerk a completed application accompanied by the applicable fee (payable by check or money order) and a current certificate from the clerk of the appropriate court showing that the applicant is a member in good standing of the bar of one of the courts named in paragraph (A) of this subsection. A current court certificate is one executed not earlier than 3 months before the date of the filing of the application.

(2) Admission of non-attorneys to practice. A non-attorney of good moral character and repute who is -

(A) under the direct supervision (including presence at any oral argument) of an attorney admitted to the bar of the Court, or

(B) employed by an organization that is chartered by Congress, is recognized by the Secretary of Veterans Affairs for claims representation, and provides a statement signed by the organization's chief executive officer certifying to the employee's -

(i) understanding of the procedures and jurisdiction of the Court and of the nature, scope, and standards of its judicial review; and

(ii) proficiency to represent appellants before the Court

may be admitted to practice before the Court as a non-attorney practitioner upon filing with the Clerk a completed application accompanied by the applicable fee (payable by check or money order). In making the statement under this paragraph, the chief executive officer should be aware that knowledge of and competence in veterans law and the administrative claims process does not in and of itself connote competence in appellate practice and procedure.

(3) Practitioner defined. A person who has been admitted under this subsection or has been permitted to appear under subsection (b)(1)(F) is referred to in this Rule as a practitioner.

(4) Change of address. Each practitioner shall give the Clerk and all other parties written notice (not included in another filing) of any change of his or her electronic or street address or telephone or fax number. Absent such notice, the delivery of documents to the address most recently provided by that person will be fully effective.

(b) Representation Requirements.

(1) General appearance.

(A) Appellants' Representatives. Each practitioner representing an appellant shall submit for filing with the Court and serve on the Secretary, no later than the date of the first filing submitted by the practitioner on behalf of the appellant, a notice of appearance in the detail set out in Form 3 in the Appendix of Forms, and a copy of any retainer agreement and any fee agreement for representation before the Court, which when electronically filed will be locked (see E-Rule 4(a)).

(B) Secretary's Representatives. Each practitioner representing the Secretary shall submit for filing with the Court and serve on the appellant, no later than the date on which the Secretary files the record before the agency, a notice of appearance. The Secretary may substitute a practitioner of record at any time by submitting for filing with the Court and serving on the appellant a notice of appearance of the new practitioner.

(C) Appearance by a Non-Attorney Practitioner. Each notice of appearance and pleading submitted for filing by a non-attorney practitioner shall include the name, address, and signature of the responsible supervising attorney under subsection (a)(2)(A) or the identification of the employing organization under subsection (a)(2)(B).

(D) Appearance by Multiple Representatives. In cases where multiple representatives submit for filing a notice of appearance, one representative must be designated as lead representative. When an additional representative for appellant or intervenor is not designated as lead representative, that representative may withdraw his or her appearance without obtaining the Court's permission as would otherwise be required by subsection 46(c). The lead representative shall promptly file a notice in each case informing the Clerk's Office that the additional representative is no longer representing the appellant or intervenor, that notice of the withdrawal of the additional representative has been provided to the appellant or intervenor, and that the additional representative's name should be removed from the docket.

(E) Appearance by an Organization Prohibited. With the exception of an organization operating under the provisions of Public Law No. 102-229, see Practitioner's Note to Rule 5, an appearance may not be made in the name of a law firm or other organization.

(F) Appearance in a Particular Case. On motion and a showing of good cause, and submission of a completed application, the Court may permit any attorney or non-attorney practitioner not admitted to practice before the Court, or any other person in exceptional circumstances, to appear on behalf of a party or amicus curiae for the purposes of a particular case. Whenever a person makes an appearance under this subsection, the person will be deemed to have conferred disciplinary jurisdiction upon the Court for any alleged misconduct in the course of, in the preparation for, or in connection with any proceeding in that case. Each attorney and non-attorney practitioner generally is limited to one appearance under this subsection. Except as permitted by the Court, any subsequent appearances shall be made under Rule 46(a) (1) (Admission of Attorneys to Bar of Court) or (a)(2) (Admission of Non-Attorneys to Practice).

(G) Appearance by Law Students.

(i) General. An eligible law student, with the written consent of the appellant and the attorney of record, who is a member of the bar of the Court, may appear in the Court as the Court may allow.

(ii) Participation defined. An eligible law student may participate in the preparation of briefs and other documents to be filed in the Court, but such briefs or documents shall be signed by the attorney of record. The student may also participate in oral argument with leave of the Court, but only in the presence of the attorney of record. The attorney of record shall personally assume professional responsibility for the law student's work and for supervising the quality of his or her work. The attorney shall be familiar with the case and prepared to supplement or correct any written or oral statement made by the student.

(iii) Conditions of appearance. In order to make an appearance pursuant to this Rule, the student shall-

(aa) be duly enrolled in a law school approved by the American Bar Association;

(bb) have completed legal studies amounting to at least two semesters or the equivalent if studies are scheduled on other than a semester basis;

(cc) be certified, by the dean of the law school in which the law student is enrolled, as being of good character and competent legal ability (this certification shall be submitted for filing with the Clerk and may be withdrawn at any time by the dean, upon written notice to the Clerk, or by the Court, without notice or hearing and without any showing of cause);

(dd) be introduced by the attorney of record in the case;

(ee) neither ask for nor receive any compensation or remuneration of any kind for his or her services from the person on whose behalf such services are rendered, but this will not prevent an attorney, legal aid bureau, law school, a state, the District of Columbia, or a United States territory or commonwealth within the meaning of 48 U.S.C. § 1904(e)(5), or the United States from paying compensation to the eligible law student, nor will it prevent any agency from making such charges for its services as it may otherwise properly require;

(ff) certify in writing that he or she has read and is familiar with the code of professional responsibility or rules of professional conduct in effect in the state or jurisdiction in which the student's law school is located and with the rules governing practice in the Court (See Rule 4 of the Court's Rules of Admission and Practice).

(2) Limited appearance.

(A) Notice of Appeal. Any practitioner appearing for the limited purpose of submitting a Notice of Appeal for filing with the Court shall, when submitting such Notice of Appeal:

(i) provide the appellant's current address and telephone number; and

(ii) aver to the Court that the appellant has been advised, or, alternatively, will be advised, of the appellant's responsibility to abide by the Court's Rules of Practice and Procedure, including the need to timely serve and submit for filing a brief.

(B) Stay for Case Evaluation. A practitioner representing an organization operating under the provisions of Public Law No. 102-229 may enter a limited appearance to seek a stay in a case for the purpose of case evaluation. See Rule 5(a) (Stay of Appellate Proceedings-Grounds) and Practitioner's Note to Rule 5. A limited appearance and stay request may be presented in a single motion for stay.

Practitioner's Note: Any filing for a limited appearance by a non-attorney practitioner must be signed by the supervising attorney.

(c) Withdrawal From Representation. Except as noted in subsection (b)(1)(B), (b)(1)(D), and in subparagraph (2), a practitioner may not withdraw from a case without obtaining the Court's permission. The practitioner's authority and duty continue until the practitioner is relieved by the Court, subject to conditions that the Court considers appropriate.

(1) General appearances. Permission to withdraw may be sought by submitting for filing a motion to withdraw that

(A) states the reasons for withdrawal;

(B) lists the client's current address and telephone number;

(D) contains a representation by the practitioner that all documents submitted for filing by the parties, all notices and orders accumulated by the practitioner, and all files belonging to the client have been provided to the client or to a named substitute practitioner.

(2) Limited appearances.

(A) Notice of Appeal. If a practitioner has appeared for the limited purpose of submitting for filing a Notice of Appeal and averred at that time that the client had already been advised of the appellant's responsibility to abide by the Court's Rules of Practice and Procedure, including the need to timely serve and submit for filing a brief, withdrawal is automatic at the time of such submission and a motion to withdraw is not necessary. In instances where the attorney averred that the practitioner would in the future advise the appellant of the appellant's responsibility to abide by the Court's Rules of Practice and Procedure, including the need to timely serve and submit for filing a brief, withdrawal will be granted only upon averment that the appellant has been so advised. Until such time, the practitioner remains professionally responsible to the Court and to the appellant for compliance with the Court's Rules of Practice and Procedure.

(B) An organization operating under the provisions of Public Law No. 102-229. Withdrawal is automatic upon submission for filing of a notice that an organization operating under the provisions of Public Law No. 102-229 will not take the case. See Practitioner's Note to subsection (b)(2)(B).