Can a lawyer who becomes a full-time administrative hearing officer keep a private law practice and stay on the firm letterhead?

Plain-English summary

The opinion addressed a lawyer winding up a private practice on taking a full-time position as an administrative hearing officer, who asked whether the lawyer's name could stay on the former firm's letterhead (or appear as "of counsel"), and whether the lawyer could remain counsel of record to finish non-conflicting cases.

The Committee distinguished judges from hearing officers. A lawyer who becomes a judge must cease practicing law, remove their name from firm names and stationery, withdraw or substitute appearances, and transfer cases (MCJC 5F; J-2; J-4; RI-100). But there is no similar bar for lawyers leaving private practice for other public employment, and although administrative hearing officers perform adjudicative functions, the lawyer ethics rules, not the judicial ethics rules, govern them (RI-11; CI-351; CI-633). So there is no per se prohibition on continued private practice, as long as it does not create conflicts, breach confidentiality, or otherwise violate the rules. The Committee flagged MRPC 1.11(a) and (c) (a lawyer may not switch sides on a matter handled personally and substantially as a public officer or in private practice) and MRPC 1.7(b) (the representation may not be materially limited by the lawyer's duties to the government employer or the lawyer's own interests), to be weighed case by case; it also advised checking the new employer's own policies.

On letterhead, the Committee applied MRPC 7.5(c): a public officer's name may not be used in a firm name or its communications during any substantial period the lawyer is not actively and regularly practicing with the firm. A full-time government employee may not state or imply being a partner, member, or "of counsel" when not rendering services to the firm on a regular, ongoing basis (C-164; RI-45; MRPC 7.1; MRPC 7.5(d)). If the employer permits the lawyer to finish pending cases, the lawyer may use personalized letterhead so long as it makes no reference to the public position, since including the "administrative hearing officer" credential could create an unjustified expectation of results under MRPC 7.1(b).

Currency note

This opinion was issued in 1991 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: Must a lawyer who becomes an administrative hearing officer give up private practice?

A: No. The opinion concluded there is no per se prohibition, unlike for judges; continued practice is allowed if it does not create conflicts, breach confidentiality, or otherwise violate the rules.

Q: Can the hearing officer's name stay on the former firm's letterhead?

A: Per the opinion, no, not during any substantial period the lawyer is not actively and regularly practicing with the firm; MRPC 7.5(c) bars using a public officer's name in that situation.

Q: Can the lawyer advertise the "administrative hearing officer" title on private-practice letterhead?

A: No. The opinion concluded the public position may not appear on private-practice letterhead, as it could create an unjustified expectation of results under MRPC 7.1(b).

Background and rules framework

The opinion interprets MRPC 1.11(a) and (c) / Model Rule 1.11 (successive government and private employment), MRPC 1.7(b) / Model Rule 1.7 (material-limitation conflict), MRPC 1.16 / Model Rule 1.16 (withdrawal of appearances), and MRPC 7.1, 7.5(c) and (d) / Model Rules 7.1 and 7.5 (communications and firm names, including a public officer's name). It contrasts these with the judicial rules (MCJC 5F) that require a judge to leave practice.

Citations and references

Rules of Professional Conduct:

• MRPC 1.11(a), (c) / Model Rule 1.11 (former and current government officer; same matter)
• MRPC 1.7(b) / Model Rule 1.7 (material-limitation conflict)
• MRPC 7.5(c), (d) / Model Rule 7.5 (public officer's name in a firm name)
• MRPC 7.1 / Model Rule 7.1 (communications about the lawyer's services)

Other opinions cited:

• RI-11; RI-45; RI-100: cited on hearing-officer status, letterhead, and winding up practice
• J-2, J-4; JI-34; C-164; CI-351; CI-633: cited on judges leaving practice and government employment

See also

• Mich Ethics Op. C-239: Hearing Officers and UPL
• Mich Ethics Op. JI-123: Hearing Officer Who Filed a Grievance Against a Lawyer
• Mich Ethics Op. RI-129: Referee Who Also Serves as Assistant City Attorney

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=980&Type=6

Original opinion text

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

RI-110

December 23, 1991

SYLLABUS

A lawyer who serves as a full-time administrative hearing officer is not per se prohibited by ethics rules from engaging in the private practice of law.

A lawyer who conducts a private law practice while serving as an administrative hearing officer may not list the public position on the law firm letterhead.

References: MRPC 1.7(b), 1.11(a) and (c), 1.16, 7.1, 7.5(c), 7.5(d); MCJC 5F; RI-11, RI-45, RI-100; J-2, J-4; JI-34; C-164; CI-351, CI-633.

TEXT

A lawyer inquires concerning the "winding up" of law practice upon assuming a full-time position as an administrative hearing officer. The lawyer asks (1) may the lawyer's name remain on the letterhead of the lawyer's former firm, or in the alternative, may the lawyer's name appear as "of counsel," and (2) may the lawyer remain as counsel of record to finish cases that are not in conflict with the duties of the lawyer's new position?

A lawyer who has been appointed/elected to the position of judge, must cease the practice of law, MCJC 5F, J-2, and do so in a fashion that safeguards the interests of clients, J-4, RI-100. Judges must also ensure that their names are removed from firm names, firm stationery, and firm signs, MRPC 7.1, 7.5, appearances must be withdrawn or substituted pursuant to MRPC 1.16, and arrangements must be made to transfer cases to successor counsel. Judges may not continue to represent or counsel clients after assuming the bench.

There is no similar prohibition for lawyers leaving private practice for other types of public employment. Although government administrative hearing officers perform adjudicative functions, ethics opinions have uniformly held that the lawyer ethics rules, not judicial ethics rules, apply to their conduct. RI-11, CI-351, CI-633.

The lawyer desires to remain counsel of record to complete certain pending cases while being employed full-time as an administrative hearing officer. The administrative hearing officer's continued private practice of law may be prohibited or discouraged by the lawyer's new governmental employer, and the lawyer is well advised to ascertain the policies and rules of the new employer toward those activities.

There is no per se ethics prohibition regarding the lawyer's doing so, as long as the continuing practice does not create conflicts of interest, breaches of confidentiality, or other ethics violations. Under MRPC 1.11(a), a lawyer may not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the government agency consents after consultation. Under MRPC 1.11(c), a lawyer serving as a public officer or employee may not participate in a matter in which the lawyer participated personally and substantially in private practice. For a discussion of "personally and substantially related" matters, see RI-11 and JI-34. Under MRPC 1.7(b), a lawyer may not represent a client if the representation would be materially limited by the lawyer's responsibilities to a third person, such as the government agency employer, or the lawyer's own interests. For example, if a member of the firm of opposing counsel in a private practice matter appears before the administrative hearing officer in an unrelated matter, it could be argued that the decision rendered in the administrative matter is tainted because of the hearing officer's personal stake in the private practice matter. The propriety of continuing to represent private clients while serving as a full-time administrative hearing officer must be weighed against those rules on a case by case basis.

With reference to whether or not the lawyer, after gaining governmental employment may continue to use the lawyer's name upon a firm letterhead, MRPC 7.5(c) states:

"The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm."

Two previous decisions have touched upon this issue. C-164, interpreting then Canon 33 mandating that there be no false or misleading use of a trade name, held that when a lawyer takes government office and subsequently elects to resign from membership in a law firm, continued use of the lawyer's name on the letterhead is not permitted. RI-45, relying on MRPC 7.1 prohibiting a lawyer from making any public communication which is "false, fraudulent, misleading or deceptive," held that a lawyer may state and imply practice in partnership or association with other lawyers only when that is in fact the case, MRPC 7.5(d).

A "full-time" governmental employee may not "state and imply" that the lawyer is a partner or firm member, or "of counsel" with the firm when the lawyer does not in fact render services to that firm on a regular and ongoing basis.

In the event the lawyer obtains permission from the lawyer's prospective employer to complete pending cases while employed by the state, the lawyer may use personalized letterhead, as long as no reference is made on the letterhead to the lawyer's public responsibilities or public position. The inclusion of the credential of "administrative hearing officer" on the private practice letterhead arguably creates "an unjustified expectation of the results that may be achieved" in violation of MRPC 7.1(b). Further, the lawyer may not imply that the public business of administrative hearing officer is being conducted from the private law practice.