Can an administrative law judge negotiate for a private job with a law firm that represents a party in a case still before the judge?

Plain-English summary

The opinion addressed an administrative law judge (ALJ) whose term was expiring and who wanted to explore private employment before deciding whether to seek reappointment. Three scenarios were presented: roughly 300 cases held in abeyance pending the Michigan Supreme Court's resolution of a lead case, with many private firms likely to be involved; a matter in which the ALJ had completed a draft opinion but was awaiting concurrence or dissent from two other panel adjudicators; and prehearing conferences and motions decided before prehearing.

The Committee read MRPC 1.12(b), which bars a lawyer from negotiating for employment with any person involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer. It concluded the rule was clear: the ALJ could not negotiate with a firm that was attorney for a party before the ALJ, no matter how long the Supreme Court took to decide the lead case, because the ALJ's responsibility for the matter was not over. The same reasoning applied to the draft opinion awaiting panel concurrence, since the other adjudicators might suggest changes the ALJ would have to accommodate.

On the third question, the Committee borrowed the definition of "matter" from MRPC 1.11(d) (whose language nearly tracks MRPC 1.12(b)) and concluded that prehearing conferences and pre-prehearing motions are "matters." Drawing on ABA Op 342, RI-4, CI-672, CI-734, and Woods v. Covington County Bank, it reasoned that setting discovery timing and ruling on motions such as summary disposition go to the merits and constitute "personal and substantial participation," so MRPC 1.12(b) reached those proceedings too. The Committee added that the ALJ's suggested workaround, an order withdrawing from the matters and asking the parties to concur in a substitute adjudicator, would itself be conduct prejudicial to the administration of justice under MRPC 8.4, and that the negotiations would create a conflict under MRPC 1.7(b) between the ALJ's personal interest and the ALJ's duty to the tribunal.

Currency note

This opinion was issued in 1989 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and 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 judge or hearing officer look for a private-sector job while still on the bench?

A: Per the opinion, not with any firm that represents a party in a matter the adjudicator is still handling. MRPC 1.12(b) bars negotiating for employment with a party or a party's attorney in a matter in which the adjudicator participates personally and substantially.

Q: Does the bar lift once the adjudicator has drafted the decision?

A: No. The opinion concluded that while a draft opinion awaits concurrence or dissent from other panel members, the matter is not concluded and the adjudicator's participation is not over, so the prohibition still applies.

Q: Do prehearing conferences and motion rulings count as "personal and substantial participation"?

A: Yes. The opinion concluded that setting discovery and hearing schedules and ruling on motions such as summary disposition go to the merits and fall within MRPC 1.12(b).

Background and rules framework

The opinion interprets the Michigan Rules of Professional Conduct as they applied to an adjudicative officer: MRPC 1.12(b) / Model Rule 1.12 (negotiating for employment while serving as a judge or adjudicator), MRPC 1.11(d) / Model Rule 1.11 (definition of "matter" and "personal and substantial participation"), MRPC 1.7(b) / Model Rule 1.7 (personal-interest conflict), and MRPC 8.4(c) / Model Rule 8.4 (conduct prejudicial to the administration of justice), together with MCJC 2A. The phrase "personal and substantial participation" is traced to ABA Op 342 and the former Model Code term "substantial responsibility."

Citations and references

Rules of Professional Conduct:

• MRPC 1.12(b) / Model Rule 1.12 (negotiating employment as an adjudicator)
• MRPC 1.11(d) / Model Rule 1.11 (definition of "matter")
• MRPC 1.7(b) / Model Rule 1.7 (personal-interest conflict)
• MRPC 8.4(c) / Model Rule 8.4 (conduct prejudicial to administration of justice)
• MCJC 2A

Other opinions cited:

• ABA Op 342 (origin of "substantial responsibility" / "personal and substantial participation")
• RI-4 (reviewing a complaint and warrant is not "substantial participation")
• CI-633, CI-672, CI-734 (former government lawyers; substantial responsibility)

Cases:

• Woods v. Covington County Bank, 537 F2d 804 (CA 5 1976), pressures on departing public employees and erosion of public confidence

See also

• Mich Ethics Op. RI-243: No Communications With a Judge on the Merits
• No further sibling opinions yet indexed.

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=881&Type=6

Original opinion text

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

RI-011

June 15, 1989

SYLLABUS

An administrative law judge may not negotiate for employment with an attorney for a party in a matter in which the administrative law judge is the sole decision-maker and the case is being held pending another tribunal's resolution of a lead case.

An administrative law judge may not negotiate for employment with an attorney for a party in a matter in which the administrative law judge has drafted an opinion, but is awaiting the concurrence, dissent or alternate opinion from other adjudicators on the panel.

An administrative law judge may not negotiate for employment with an attorney for a party at a prehearing conference conducted by the administrative law judge or at motions heard by the administrative law judge preceding a prehearing conference.

References: MRPC 1.7(b), 1.11(d), 1.12(b), 8.4(c); MCJC 2A; RI-4; CI-633, CI-672, CI-734; ABA Op 342; Woods v. Covington County Bank, 537 F2d 804 (CA 5 1976).

TEXT

An administrative law judge (ALJ) whose term is expiring would like to explore private employment opportunities before deciding to seek reappointment. The ALJ seeks guidance on the proper scope of his job-seeking activities.

• Some 300 cases are being held in abeyance in two administrative agencies awaiting resolution by the Michigan Supreme Court of a lead case. It is likely that many of the private law firms in this field of practice are or will be involved in one of the matters awaiting the Court's determination. May the ALJ negotiate employment with an attorney for a party in one of the cases held by the ALJ?

• May the ALJ pursue employment opportunities with a firm when the ALJ has completed a draft of an opinion in the matter and is awaiting concurrence or dissent from two other adjudicators on the same panel?

• Is a prehearing conference or motions decided prior to prehearing "personal and substantial participation" of the "matter" falling within the MRPC 1.12(b) prohibition?

MRPC 1.12(b) states:

"A lawyer shall not negotiate for employment with any person who is involved as a party, or as an attorney for a party, in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or arbitrator . . . ."

MRPC 1.12(b) is clear. The ALJ may not negotiate for employment with a law firm which is attorney for a party before the ALJ, no matter how long it takes the Supreme Court to decide the lead case. If the matter was concluded, or if the responsibility of the ALJ for the matter was over, the prohibition would no longer apply.

The ALJ suggests issuing an order stating that the ALJ withdraws from the matters before the ALJ, and asking the parties for concurrence in allowing another adjudicator to preside. We believe this would be conduct prejudicial to the administration of justice prohibited under MRPC 8.4. Requiring another adjudicator to become familiar with the matter, to gain the confidence of the parties and their attorneys, and to step into such a "limbo" situation merely for the ALJ's personal employment desires would be contrary to the ALJ's duties of office.

May the ALJ pursue employment opportunities with a firm when the ALJ has completed a draft of an opinion in the matter and is awaiting concurrence or dissent from two other adjudicators on the same panel? Clearly the matter has not been concluded. The other adjudicators may suggest changes in language, new reasoning, etc., that should be accommodated by the ALJ in the opinion. The ALJ participation is not over, and the ALJ may not negotiate employment with a party or attorney appearing in the matter.

Is a prehearing conference or motions decided prior to prehearing "personal and substantial participation" of the "matter" falling within the MRPC 1.12(b) prohibition? MRPC 1.11(d) defines "matter" to include:

"(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties; and

"(2) any other matter covered by the conflict of interest rules of the appropriate government agency."

Prehearing conferences and rulings on motions prior to prehearing are "matters" within the scope of MRPC 1.11(d). There is no correlative definition of "matter" in MRPC 1.12, but the language of MRPC 1.11(c)(2) almost exactly tracks the language of MRPC 1.12(b). We believe the definition of "matter" in MRPC 1.11 is applicable to MRPC 1.12, and that prehearing conferences and orders are matters within MRPC 1.12(b).

During a prehearing conference the ALJ sets the timing for future discovery, exchange of data between parties, and hearing dates. Motions prior to prehearing include summary disposition, compelling interrogatories, etc. The question becomes whether these activities are "personal and substantial participation" under MRPC 1.12(b).

The phrase "personal and substantial participation" is used throughout MRPC 1.11 and 1.12. It derives from ABA Op 342 and the ABA Model Code of Professional Responsibility DR 9-101, which used the term "substantial responsibility." In CI-672 we noted that "substantial responsibility" has been interpreted to mean the attorney has been personally involved to an important, material degree in investigations about or deliberations on the transactions and facts in question during the lawyer's tenure in public office. A review of a petition and answer filed in an appeal was held not to be "substantial responsibility." In RI-4 we stated that receiving a police report and reviewing a complaint and warrant prior to its issuance is not "substantial participation." In both cases the lawyers had no direct contact with the parties or their lawyers; the activities were limited to "office practice." Nor did the lawyers in those opinions make determinations on the merits of the matters.

MRPC 1.12(a) contains the phrase "participated personally and substantially" in considering the cases a former adjudicator may undertake after leaving office. Arizona Op 84-2 disqualified a lawyer and the lawyer's firm from representation of a criminal defendant where the lawyer was a former judge assigned to the defendant's case and ruled on pretrial motions, including a motion to remand. Kentucky Op E-287 prohibited a former judge from accepting employment in a matter in which the judge had ruled on the merits while a judge, saying "since a lawyer must ensure that his conduct does not diminish public confidence in the legal profession and must avoid the appearance of impropriety, an ex-judge must decline private employment in any matter in which he had substantial responsibility prior to leaving office."

In CI-734 we cited ABA Op 342 and Woods v. Covington County Bank, 537 F2d 804 (CA 5 1976) stating public employees who anticipate leaving their agency frequently find themselves pressured to impress favorably private concerns with which they officially deal. Although rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from government, they should seek to avoid the "pressure" situations and the consequential erosion of public confidence in the administration of justice.

The impact of ABA Model Rule 1.11(c) is described in The Law of Lawyering, Hazard and Hodes, Prentice-Hall, l988 Supplement, in the Illustrative Case (a) at pages 221-222. In that example, a state government lawyer involved in litigation enforcing a state's antidiscrimination laws is approached by one of the opposing counsel during recess and asked to submit a resume to the opposing counsel's firm for a vacancy in the firm's matrimonial law department. Hazard and Hodes state negotiations for employment in such a case are improper, even though the opposing lawyer broached the subject, the available position was in an area of law unrelated to the case in which the lawyers were engaged, and even though the "offer" was merely to submit a resume. Further, opposing counsel has breached ABA Model Rule 8.4, since the offer constitutes an inducement to the government lawyer to violate the Rules.

It seems clear that prehearing conferences and motions prior to prehearing are on the merits of the matters presented. MRPC 1.12(b) would also prohibit the ALJ's employment negotiation with parties or their attorneys in those proceedings.

MRPC 1.7(b) reads as follows:

"A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibility to another client or to a third person, or by the lawyer's own interests . . . ."

The suggested negotiations for employment under the facts set forth in the Syllabus would clearly indicate a conflict of interest. The conflict would be between the personal interest of the ALJ and the duties and obligation of the ALJ to the tribunal employer whom the ALJ represents.