Can a New York lawyer who serves as a certified impartial hearing officer also represent parents in special-education hearings, and can the lawyer advertise the certification?

Plain-English summary

The inquirer represented parents of students with disabilities and was considering applying to be certified by the Commissioner of Education as an impartial hearing officer, the neutral who decides disputes between parents and school districts. Districts appoint IHOs from a county list on a rotating, alphabetical basis. The committee addressed whether the lawyer could also keep representing parents and whether the lawyer could advertise the certification.

The committee saw no need for a per se bar on holding both roles, but identified situations the lawyer must avoid. First, the lawyer may not represent parents in a school district that includes the lawyer on its IHO list. Switching between adjudicator and advocate in the same district presents an appearance of impropriety and is prejudicial to the administration of justice (DR 1-102(A)(5); Canon 9; EC 8-8, 9-1). The lawyer should have the lawyer's name removed from the list for any district where the lawyer wants to appear as an advocate.

Second, under the former-adjudicator and revolving-door provisions of DR 9-101(B), the lawyer may not represent parents in a matter the lawyer personally and substantially handled as an IHO involving the same child and disability, and may not sit as IHO in a matter the lawyer previously handled as the parents' advocate. Third, while the mere fact that another listed IHO has appeared (or may appear) before the lawyer does not require recusal, it is impermissible for the lawyer to sit as IHO in a matter where another lawyer in that matter is concurrently serving as IHO in a case in which the first lawyer is appearing as advocate. The committee grounded this concern in DR 5-101(A), DR 8-101(A)(2), and Canon 9, and said that where this concurrent posture arises, the IHO in the later-arising matter should decline it. On advertising, the committee held it is not improper to advertise the IHO certification if the advertising is truthful (DR 2-101(A)), but the lawyer may not imply the certification lets the lawyer improperly influence a district or another IHO (DR 9-101(C)).

In practice

Under the Code as it stood in 2003, the opinion held that a lawyer holding both roles must keep the adjudicator and advocate functions separate by jurisdiction and matter. The opinion concluded the lawyer must remove the lawyer's name from the IHO list for any district where the lawyer represents parents, must decline to advocate in a matter the lawyer handled as an IHO involving the same child, and must avoid the reciprocal posture where two lawyers are simultaneously judging each other's cases, with the IHO in the second-arising matter declining it.

On advertising, the opinion concluded the lawyer may state the IHO certification in advertising provided the ad is not false, deceptive, or misleading and does not imply improper influence over a tribunal or public official.

Common questions

Q: Can a New York lawyer be a special-education hearing officer and still represent parents in those hearings?

A: Yes, generally, but the opinion concludes the lawyer may not represent parents in a district where the lawyer is on the IHO list and must have the lawyer's name removed from that district's list to appear as an advocate there.

Q: Can the lawyer later represent a parent in a case the lawyer once decided as a hearing officer?

A: No, where it is the same child and disability. The opinion applies DR 9-101(B): the lawyer may not represent a private client in a matter the lawyer participated in personally and substantially as a public officer.

Q: What happens when two lawyers are each serving as hearing officer in the other's case at the same time?

A: The opinion holds that posture is impermissible because each appears to be judging the other; the IHO in the later-arising matter should decline it.

Q: Can the lawyer advertise that the lawyer is a certified impartial hearing officer?

A: Yes. The opinion concludes the certification may be used in advertising if the ad is not false, deceptive, or misleading and does not imply the lawyer can improperly influence a district or another IHO.

Background and rules framework

The opinion interprets New York's former Code of Professional Responsibility: DR 1-102(A)(5) (conduct prejudicial to the administration of justice), DR 5-101(A) (personal-interest conflicts), DR 8-101(A)(2) (lawyer holding public office), DR 9-101(B) (former and current public officers), DR 9-101(C) (implying improper influence), and DR 2-101(A) (truthful advertising), together with Canon 9 and related Ethical Considerations. The committee also discussed whether the Code of Judicial Conduct's part-time-judge restriction (22 NYCRR 100.6) applied and concluded the result would be the same. The Model Rules analogues are Rule 8.4(d) and (e), Rule 1.7, Rule 1.12 (former adjudicator), and Rule 7.1 (advertising). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 8.4(d), (e) (administration of justice; implying improper influence)
• MR 1.7 (personal-interest conflicts)
• MR 1.12 (lawyer who served as adjudicative officer)
• MR 7.1 (truthful communications about services)
• NY DR 1-102(A)(5), DR 5-101(A), DR 8-101(A)(2), DR 9-101(B), DR 9-101(C), DR 2-101(A)

Other opinions cited:

• N.Y. State 543 (1982): hearing officer in tax-assessment review may not represent private clients in the same jurisdiction

See also

• NY State Bar Op. 770: Plea-bargain donations as part of a sentence
• NY State Bar Op. 771: Website testimonials and past-results advertising
• NY State Bar Op. 878: Lawyers as mediators

Source

• Landing page: https://nysba.org/ethics-opinion-767/