Can a firm hire, even as a consultant, an administrative law judge who presided over the same matter in another jurisdiction?

Plain-English summary

An Arizona law firm involved in a multi-jurisdictional case (arising from a utility property jointly owned by entities in several jurisdictions) wanted to engage, as a consultant, an administrative law judge (a lawyer) who had previously presided over a related proceeding in another jurisdiction. He would advise counsel rather than appear as the named representative, and his earlier decision had not yet been approved or modified.

The committee concluded the arrangement would be improper. It applied ER 1.12, which bars a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge or adjudicative officer absent the consent of all parties. The committee rejected the proposed distinction between a "consultant" and a "representative," reasoning that the ALJ would participate substantially in preparing the case and so would be a representative in all but name, doing what a lawyer with his skills and background would do as an associate. It noted the Comment to ER 1.12 treats hearing officers and similar parajudicial officers as adjudicative officers, and that under Security General Life Ins. v. Superior Court the threshold of "substantial" and "personal" involvement is relatively low, which his hearing evidence and recommending a decision easily met.

The committee added that allowing the arrangement could later cast doubt on the ALJ's impartiality in the first proceeding, the kind of appearance Canon 2 of the Code of Judicial Conduct seeks to avoid, quoting Corbin v. Broadman that "the mere appearance of a possible conflict is to be condemned." It concluded that, whether labeled representative or consultant, the ALJ could not give advice, directly or indirectly, in a continuing action in which he had presided as judge.

Currency note

This opinion was issued in 1988, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm hire a former presiding ALJ as a behind-the-scenes consultant?

A: The opinion concluded no; ER 1.12 bars his involvement whether he is called a consultant or a representative, because he would participate substantially in the same matter he adjudicated.

Q: Does the "consultant" label avoid ER 1.12?

A: No; the committee reasoned that, because he would substantially help prepare the case, he is a representative in all but name, so the label does not change the result.

Q: Could party consent cure it?

A: ER 1.12 allows the former adjudicator to participate only if all parties consent after disclosure; the opinion found the proposed arrangement improper on the facts presented and stressed the appearance-of-impropriety concern.

Background and rules framework

The opinion applied ER 1.12 (Model Rule 1.12), which restricts a former judge or adjudicative officer from later representing a party in the same matter, read together with its Comment and with Canon 2 of the Code of Judicial Conduct. The committee noted the subject was formerly governed by DR 9-101(A) and addressed in its Opinion No. 74-5.

Citations and references

Rules of Professional Conduct:

• ER 1.12 / Model Rule 1.12 (former judge or adjudicative officer)

Cases:

• Security General Life Ins. v. Superior Court, 149 Ariz. 332, 718 P.2d 985 (1986), low threshold for "substantial" and "personal" involvement
• Corbin v. Broadman, 6 Ariz. App. 436, 433 P.2d 289 (App. 1967), appearance of a possible conflict condemned

Other opinions cited:

• Arizona Opinion No. 74-5: a judge may not represent a former party from his bench

See also

• AZ Ethics Op. 87-20: Prosecutor and Defense Roles
• AZ Ethics Op. 87-21: Public Defender as Pro Tem Judge
• AZ Ethics Op. 87-17: Ex Parte Contact With an ALJ

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=581

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

3/1988

Ethical propriety of an administrative law judge giving advice or consultations in a continuing action in a multi-jurisdictional case in which he previously presided over in another jurisdiction.

FACTS

An Arizona law firm, involved in a multi-jurisdictional case, wishes to engage an Administrative Law Judge (an attorney) who previously presided over a proceeding dealing with the case in another jurisdiction. These administrative proceedings arise out of a utility property that is jointly owned by entities in various jurisdictions. The Administrative Law Judge would participate as a "consultant" to the law firm by providing advice to counsel. The decision of the Administrative Law Judge in the earlier proceedings has not been approved or modified.

The foregoing facts are based on the written inquiry of the law firm wishing to hire the Administrative Law Judge as a consultant.

QUESTION

May an Arizona law firm hire an Administrative Law Judge as a "consultant" in a multi-jurisdictional case in which he has previously presided over a proceeding in another jurisdiction?

ETHICAL RULES INVOLVED

ER 1.12. Former Judge or Arbitrator.

(a)...a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after disclosure.

See also, Code of Judicial Conduct (Rule 81, Rules of the Supreme Court):

Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him....

OPINION

The subject matter of this opinion was previously governed by Disciplinary Rule 9-101(A), and a similar question was presented in our Opinion No. 74-5.

In Opinion No. 74-5, the committee faced the problem of whether a judge could represent someone who had been a party in a case before his bench. The committee cited EC 9-3 and DR 9-101(A) in determining that the judge could not represent the party. The committee also cited the provisions of former Canon 36 and a statement from Henry S. Drinker's work on Legal Ethics:

"The purpose of the first provision is to preclude a judge from thereafter participating in litigation the merits of which he has passed on when a judge and thus taking advantage of the prestige which this would give to his present opinion and arguments; also that... the judge's decision might otherwise be influenced or thought to have been influenced by the hope of later being employed privately to uphold or to upset what he had done or decided . . ." (op. cit. pp. 130-131)

The law firm wishes to distinguish the instant situation from the situation ER 1.12 addresses. The written inquiry focuses on representation in a personal capacity. The Administrative Law Judge will be employed as a consultant rather than as the named representative. However, there is no indication that the Administrative Law Judge will not participate substantially in preparing the case. Therefore, for all intents and purposes, he will be a representative. He will be doing what a lawyer with his special skills, experience and background would do were he employed as an associate of the firm.

Apparently, there has been no contact between the law firm and the Administrative Law Judge as yet. However, we are of the opinion that the proposed arrangement would be improper.

The Comment to ER 1.12 provides some insight into the nature of the Administrative Law Judge's obligations:

“. . . The term 'adjudicative officer' includes such officials as judges pro tempore, referees, special masters, hearing officers, and other parajudicial officers, and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the Model Code of Judicial Conduct provide that a part-time judge.... may not 'act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto.'” (Emphasis added).

The Supreme Court of Arizona has alluded to the EP 1.12 prohibition barring a former judge or other adjudicative officer from representation when his former involvement was "substantial" and "personal". Security General Life Ins. v. Superior Court, 149 Ariz. 332, 334, 718 P.2d 985, 987 (1986). The threshold of involvement is relatively low. In the instant situation, the Administrative Law Judge has heard evidence and recommended a decision to a utility commission. Therefore, his involvement in the case can easily be characterized as "substantial” and "personal" and, therefore, prohibited by ER 1.12.

Additionally, a situation could arise wherein the Administrative Law Judge's impartiality might be questioned. For example, should the parties represented by the law firm requesting this arrangement prevail and thereafter the Administrative Law Judge becomes a consultant for the firm, his impartiality in the first proceeding might be challenged. This situation is the same as that which Canon 2 of the Code of Judicial Conduct attempts to avoid. In a situation like this, the mere appearance of impropriety or conflict should not be allowed to occur. The Arizona Court of Appeals has stated: “The State Bar of Arizona, through its Committee on Ethics, has stated that the mere appearance of a possible conflict is to be condemned." Corbin v. Broadman, 6 Ariz. App. 436, 439, 433 P.2d 289, 292 (App. 1967). Arguably, the mere presence of a former judge or adjudicative officer who had substantial responsibility in a former case, in whatever capacity, either as "consultant" or representative, may give rise to a presumption of impropriety or conflict.

We therefore conclude that, in this situation, whether the Administrative Law Judge is called a representative or a "consultant", it would not be appropriate to allow him to give advice to a party, either indirectly by being a "consultant", or directly by being a named representative, in a continuing action in which he presided as judge in a former proceeding.

© State Bar of Arizona 1988