If a lawyer serving on an administrative board finds material added to a case file after the close of proofs, what must the lawyer do?

Plain-English summary

The opinion addressed a lawyer who served as one of several lawyer members on an administrative board. After a case file had circulated for the members' votes, the file was returned to the lawyer for drafting the opinion with new substantive material in it, material showing the matter had been brought to a high government official's attention. The lawyer asked whether the addition disqualified the lawyer-drafter, and whether the nonlawyer chairperson was disqualified.

On the chairperson, the Committee declined to opine: the Michigan Rules of Professional Conduct govern lawyers, so a nonlawyer's conduct is outside the Committee's jurisdiction. On the lawyer, the Committee explained that a lawyer is subject to the MRPC at all times, including when serving in a quasi-judicial capacity on the board. It treated the added material as an ex parte communication, which both MRPC 3.5(b) and MCJC 3A(4) prohibit an adjudicator from initiating, considering, or permitting. Under MRPC 8.4, failing to disclose the existence of the material would be conduct prejudicial to the administration of justice.

The Committee held that the remedy for an improper ex parte communication runs from prompt disclosure to all affected parties up to disqualification, depending on the harm. Mere receipt or knowledge of the material does not by itself require recusal; prompt disclosure to all affected parties may avoid the need for other corrective action. Recusal is necessary only if irremediable prejudice has occurred or the lawyer determines he or she cannot decide the matter impartially. On these facts the lawyer had already brought the material to the appropriate authorities, the lawyer's vote and drafting assignment could not have been affected, and so the rules did not require recusal unless the lawyer believed he or she could not impartially hear the case.

Currency note

This opinion was issued in 1993 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 Treat this page as historical context, not current guidance.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: What must a lawyer-adjudicator do upon discovering ex parte material added to the record?

A: Per the opinion, disclose it to the appropriate authorities and to all interested parties. Failing to disclose the existence of the material would be conduct prejudicial to the administration of justice under MRPC 8.4.

Q: Does learning of ex parte material automatically disqualify the adjudicator?

A: No. The opinion concluded that mere receipt or knowledge of the communication, without more, does not require recusal; prompt disclosure to all affected parties may cure it.

Q: When is recusal required?

A: The opinion concluded recusal is necessary only if irremediable prejudice has occurred or the lawyer determines he or she cannot decide the matter impartially.

Q: Did the opinion address the nonlawyer chairperson's conduct?

A: No. The Committee declined to opine because the Rules of Professional Conduct govern lawyers, so a nonlawyer's conduct is outside its jurisdiction.

Background and rules framework

The opinion interprets MRPC 3.5(b) / Model Rule 3.5 (no ex parte communication with an adjudicator), MRPC 8.4 / Model Rule 8.4 (conduct prejudicial to the administration of justice), MCJC 3A(4) (a judge's bar on ex parte communications), and MCR 2.003(B) (judicial disqualification), applied by analogy to a lawyer acting in a quasi-judicial capacity. It also relies on RI-55 for the principle that a lawyer remains bound by the MRPC even when performing a function a nonlawyer could perform.

Citations and references

Rules of Professional Conduct:

• MRPC 3.5(b) / Model Rule 3.5 (ex parte communication with adjudicator)
• MRPC 8.4 / Model Rule 8.4 (conduct prejudicial to administration of justice)
• MCJC 3A(4) (judge's prohibition on ex parte communications)

Court rules:

• MCR 2.003(B) (judicial disqualification for inability to hear impartially)

Cases:

• McElhanon v. Hing, 728 P2d 273 (Ariz, 1986), allowing the excluded party to respond
• State v. Leslie, 666 P2d 1072 (Ariz, 1983), disqualification
• State v. Perkins, 686 P2d 1248 (Ariz, 1984), prompt disclosure of ex parte communication
• United States v. Martinez, 667 F2d 886 (CA 10, 1981), mistrial

Other opinions cited:

• RI-55: a lawyer remains bound by the MRPC even when performing a function a nonlawyer could perform

See also

• Mich Ethics Op. RI-129: Referee Who Also Serves as Assistant City Attorney
• Mich Ethics Op. JI-149: Judge Consulting Another Judge
• NY State Bar Op. 767: Impartial Hearing Officer Conflicts

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1036&Type=6

Original opinion text

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

RI-166

June 3, 1993

SYLLABUS

A lawyer member of an administrative board who after the close of proofs becomes aware that additional material has been placed in a case file, must disclose that material to the appropriate authorities and to all interested parties. If the lawyer is unable to decide the case impartially or irremediable prejudice has occurred because of the material, the lawyer is disqualified from participation in that matter.

References: MCJC 3A(4); MRPC 3.5(b), 8.4; RI-55; MCR 2.003(B); McElhanon v. Hing, 728 P2d 273 (Ariz, 1986); State v. Leslie, 666 P2d 1072 (Ariz, 1983); State v. Perkins, 686 P2d 1248 (Ariz, 1984); United States v. Martinez, 667 F2d 886 (CA 10, 1981).

TEXT

A lawyer serves on an administrative board currently comprised of four lawyer members and a nonlawyer chairperson. Hearing files normally circulate among board members for consideration and vote, then a board member from the prevailing side is assigned to draft the opinion. On the case giving rise to this inquiry, a case file was circulated among the board members for vote. When the chairperson returned the file to the lawyer for drafting, the file contained material on the substance of the matter which was not present when the case file was originally circulated for vote, and which shows that the matter has been brought to the attention of a high government official.

The Committee has been asked whether the lawyer who has been assigned drafting responsibility must be disqualified because the lawyer has seen material that was not part of the original case file or for any other reason, and whether the chairperson would be disqualified from participation.

We answer the second question first. The Rules of Professional Conduct govern the conduct of lawyers. Since the chairperson is a nonlawyer, the propriety of the chairperson's conduct is outside the jurisdiction of this Committee.

Lawyers are subject to the Michigan Rules of Professional Conduct (MRPC) at all times, whether functioning in a legal or nonlegal capacity. Where nonlawyers may appear in a representational capacity in administrative proceedings, RI-55 opined that when such representation is afforded by a person who is in fact a lawyer, it must be effectuated without violating the Rules of Professional Conduct. "Legal matter" is defined in RI-55 as including "any business performed by a lawyer on behalf of a client, the principal basis for which is law, statutory, common or constitutional . . . . A lawyer does not cease to become a lawyer merely because a nonlawyer could perform the same service." Therefore, even if nonlawyers may serve on the administrative board, if a lawyer serves, the lawyer must effectuate that service without violating ethics rules.

While serving on the administrative board the lawyer is serving in a quasi-judicial capacity. MCR 2.003(B) requires a judge to recuse if the judge cannot impartially hear a case. Both the Michigan Rules of Professional Conduct at MRPC 3.5(b) and the Code of Judicial Conduct at MCJC 3A(4) prohibit ex parte contacts with an adjudicator. MCJC 3A(4) prohibits a judge from initiating, considering or permitting ex parte communications concerning a pending matter. The danger of ex parte communications is discussed in Judicial Conduct and Ethics, Shaman Lubet & Alfini, Michie Company, pp 149-150:

"Ex parte communications deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge. Ex parte conversations or correspondence can be misleading; the information given to the judge 'may be incomplete or inaccurate, the problem can be incorrectly stated.' At the very least, participation in ex parte communications will expose the judge to one sided argumentation, which carries the attendant risk of an erroneous ruling on the law or facts. At worst, ex parte communications is an invitation to improper influence if not outright corruption."

Adjudicative officers are required to decide cases based upon the evidence in the record, and not be influenced by factors or information outside the proceedings. Remedies for improper ex parte communications may range from prompt disclosure of the ex parte communication to all affected parties [State v. Perkins, 686 P2d 1248 (Ariz, 1984)], or allowing the excluded party the opportunity to respond [McElhanon v. Hing, 728 P2d 273 (Ariz, 1986)], to mistrial [United States v. Martinez, 667 F2d 886 (CA 10, 1981)] or disqualification [State v. Leslie, 666 P2d 1072 (Ariz, 1983)]. Mere receipt of or knowledge of the ex parte communication without more, does not require recusal. Prompt disclosure to all affected parties may avoid the need for other corrective action. Only if irremediable prejudice has occurred or the lawyer determines he or she cannot decide the matter impartially, is recusal necessary.

MRPC 8.4 states:

"It is professional misconduct for a lawyer to:

"(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

"(b) engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer;

"(c) engage in conduct that is prejudicial to the administration of justice;

"(d) state or imply an ability to influence improperly a government agency or official; or

"(e) knowingly assist a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct or other law."

It would be conduct prejudicial to the administration of justice for the lawyer drafter to fail to disclose the existence of the material.

The facts provide no information regarding the source of the new information in the case file, nor is it clear what impact the new information has on the merits of the case pending before the board or on the votes of particular members. The facts indicate that the lawyer's vote and the lawyer's assignment as drafter on the case could not have been affected by the material. The lawyer member brought the existence of the material to the attention of the appropriate authorities. It would appear, therefore, that since the material has been disclosed, ethics rules do not require the lawyer to recuse unless the lawyer believes he or she cannot impartially hear the case.