Can a Deputy Attorney General prosecuting a licensee before a professional board contact the board's head ex parte about settlement?

Plain-English summary

The inquiry concerned professional licensing boards (for example, the Board of Medical Examiners) whose head is consulted about settlement offers in disciplinary proceedings and also sits in judgment on matters that are not settled, making the head a quasi-judicial officer. The first question was whether a Deputy Attorney General prosecuting a matter before such a board may make ex parte contact with the board head to gauge the acceptability of a settlement or the board's position. The second was whether the same is true for another DAG from the same division who prosecutes other cases before the board and shares an office with the prosecutor.

The Committee held that both situations are answered by RPC 3.5, which provides that a lawyer shall not seek to influence a judge, juror, or other official by means prohibited by law, or communicate ex parte with such a person except as permitted by law. It concluded that an agency head or hearing officer is a judicial officer or the equivalent of a judge, so ex parte communications with that officer in these circumstances are improper. The Committee subscribed to the California State Bar's Opinion 1984-82, which reasoned that when an agency hears a case itself, the agency head performs functions equivalent to a judge during the period when adoption, modification, or rejection of the hearing officer's proposed decision is under consideration. It held that the ex parte communications in both instances violate RPC 3.5(a) and (b) and are improper.

Currency note

This opinion was issued in 1986, before New Jersey's adoption of the 2004 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 Treat this page as historical context, not current guidance.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 prosecuting Deputy AG sound out a board head about settlement ex parte?

A: Per the opinion, no. The Committee held that the board head is the equivalent of a judicial officer, so the ex parte communication violates RPC 3.5(a) and (b).

Q: Does the bar extend to a different DAG in the same office?

A: Yes. The opinion applied the same conclusion to another DAG from the same division who prosecutes other matters before the board and shares the office.

Background and rules framework

The opinion applies RPC 3.5(a) and (b), which prohibit improperly influencing an official and ex parte communications with a judge or comparable official except as permitted by law, treating a professional board's head acting on a proposed decision as a quasi-judicial officer. It adopts the reasoning of the California State Bar's Opinion 1984-82.

Citations and references

Rules of Professional Conduct:

• MR 3.5(a), (b) / NJ RPC 3.5(a), (b) (improper influence; ex parte communication with an official)

Other opinions cited:

• California State Bar Standing Committee on Professional Responsibility and Conduct, Opinion 1984-82

See also

• NJ ACPE Op. 599: A Prosecutor's Relative Practicing Criminal Law
• NJ ACPE Op. 592: Appearing Before a Former-Partner Judge

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp583-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

117 N.J.L.J. 395, March 27, 1986

OPINION 583

Ex parte Communications with Professional Boards in Disciplinary Proceedings

The inquirer states that:

"In administrative agencies, especially the professional boards, it is the head of the agency (i.e. President of the Board of Medical Examiners) who is consulted with respect to offers to settlement in disciplinary proceedings involving a licensee of the agency. This agency head sits in judgment over matters which are ultimately not settled and is, therefore, a quasi-judicial officer."

The first inquiry seeks to determine the propriety of a Deputy Attorney General (DAG), who is involved in prosecuting the matter before the agency, making ex parte contact with the agency head to determine the acceptability of a particular settlement or the agency's position on settlement. The first issue is whether the DAG who is prosecuting a matter before an agency may have ex parte communication with the agency head regarding issues in the matter.

Related to the issue of the prosecuting DAG engaging in such ex parte communication, is the situation where another DAG, from the same division of the Attorney General's office as the prosecuting attorney, who acts as a prosecutor in other cases which come before the agency and who shares the same office with the prosecuting attorney, engages, in similar ex parte communication.

In our opinion, both of the above inquiries are answered by RPC 3.5, which provides in part as follows:

A lawyer shall not: (a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law; (b) communicate ex parte with such a person except as permitted by law;

We hold that in both instances, ex parte communications in the above instances violate the provisions of RPC 3.5(a) and (b) and are improper.

The California State Bar Standing Committee on Professional Responsibility and Conduct, Opinion 1984-82 held that:

... when an agency has elected to have the case heard before the agency itself, the agency head is performing functions equivalent to a judge or judicial officer, and must be considered a judicial officer within the meaning of 7-108(B)... Furthermore, 7-108(B) applies to communications with the agency head during the limited period when the adoption, modification, or rejection of the proposed decision of the hearing officer is under consideration. Neither the trial attorney for the agency nor the attorney for the interested party should communicate with an agency head with respect to the case during these periods....

In our view, an agency head or hearing officer is a judicial officer or equivalent to a judge and that ex parte communications with that officer are improper. We subscribe to the holding of the above cited California opinion.