Securities and Exchange Commission, and Cross-Appellee v. Charles Y. Higashi, and Cross-Appellant. Don Jenks v. Securities and Exchange Commission

These two appeals have been consolidated. We shall deal separately with the issues presented.

HIGASHI CASE

The Administrative Procedure Act, § 6(a), grants the right to counsel to any witness subpoenaed to appear before any Federal agency.

The Securities and Exchange Commission, by rule, has provided that unless permitted no counsel for a witness “shall be permitted to be present during the examination of any other witness called during the proceeding.”

The question presented is whether this rule violates the statutory right to counsel when, by its invocation, a witness is precluded from choosing as his counsel one who has already acted as counsel for a witness called to testify earlier in the proceeding.

This case arose in connection with the Commission’s investigative proceeding In the Matter of Silver King Mines, Inc. and Kay L. Stoker. The Commission served respondent Charles Higashi, a director of Silver King Mines, with a subpoena duces tecum and also informed him that it was invoking its sequestration rule so as to prevent Dan S. Bushnell, corporate attorney for Silver King Mines, from representing him at the hearing. Mr. Bushnell, who had previously appeared as…