Ezel / Ethics Opinions / NYSBA
NYSBA 2010-03-10

Is an administrative agency's rule-making or rate-making proceeding a 'tribunal' under the ethics rules, and does Rule 3.5 bar ex parte communications in it?

Short answer: It is a question of fact: the agency is a 'tribunal' only when a neutral official renders a judgment directly affecting specific parties. Even then, Rule 3.5's ex parte restrictions apply only if the proceeding is adversarial and the agency has not authorized such communications.
Currency note: this opinion is from 2010
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 838: When an agency proceeding is a "tribunal" and whether Rule 3.5 applies

Short answer: Whether an agency rule-making or rate-making proceeding is before a "tribunal" is a question of fact turning on whether a neutral official will render a judgment directly affecting specific parties; even if it is a tribunal, Rule 3.5's ex parte restrictions apply only if the proceeding is adversarial and the agency has not authorized such communications.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

Many Rules govern conduct before a "tribunal" (for example, candor under Rule 3.3, fairness under Rule 3.4, and impartiality under Rule 3.5). The inquiry asks when a proceeding before a New York administrative agency, such as the Public Service Commission, counts as a "tribunal," and whether Rule 3.5 always bars ex parte communications on the merits with an agency official when it does.

On the first question, the opinion looks to the Rule 1.0(w) definition, adopted from the ABA Model Rules: a "tribunal" includes an administrative agency "acting in an adjudicative capacity," which occurs when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting a party's interests in a particular matter. The opinion stresses that acting in an adjudicative manner is not enough; the proceeding must involve specific parties, consistent with the Rule 1.0(l) definition of "matter." Rule-making generally is not a tribunal proceeding because it applies to all covered persons rather than specific parties, even if it includes formal hearings or testimony; what characterizes a tribunal is the rendering of a legal judgment on the law and evidence affecting particular parties. The opinion supports this by pointing to Rule 3.9 (advocate in non-adjudicative matters) and its Comments, which require a lawyer in a rule-making appearance only to disclose that the lawyer acts in a representative capacity, not to name the client, implying the drafters did not treat rule-making as adjudicative. Rate-making is harder, because it can be adjudicatory or quasi-legislative and policy-driven; the determination is a question of fact beyond the Committee's jurisdiction, and the agency's own characterization or SAPA's is not dispositive. The opinion offers three factors: whether specific parties will be affected, whether parties can present evidence and cross-examine, and whether the ultimate decision is made by a policy-maker or by an independent trier of fact such as an administrative law judge.

On the second question, the opinion concludes that even a proceeding before a "tribunal" does not automatically trigger Rule 3.5. New York Rule 3.5(a)(2), on communications about the merits, derives from former DR 7-110(B) and applies only "in an adversary proceeding"; so Rule 3.5 applies only if the rule-making or rate-making proceeding is adversarial. And even then, Rule 3.5(a)(2)(iv) permits communications "as otherwise authorized by law," so an agency may authorize ex parte communications by its own rules or regulations.

In practice

Under this opinion, a lawyer appearing before a New York agency must determine, as a factual matter, whether the particular proceeding is adjudicative (a neutral official deciding the rights of specific parties on the evidence) before treating it as a "tribunal" for the Rules. The opinion holds that rule-making generally is not a tribunal proceeding, that rate-making may go either way under the three factors it lists, and that even when a proceeding is a tribunal, Rule 3.5's ex parte bar applies only if the proceeding is adversarial and the agency has not authorized such communications.

Common questions

Q: Is an agency rule-making proceeding a "tribunal" under the ethics rules?

A: Generally no. The opinion concludes rule-making usually is not a tribunal proceeding because it applies to all covered persons rather than rendering a judgment affecting specific parties, even when it includes hearings or testimony.

Q: What makes an agency proceeding a "tribunal"?

A: The opinion applies Rule 1.0(w): a neutral official, after presentation of evidence or argument by a party or parties, must render a legal judgment directly affecting a particular party's interests in a specific matter.

Q: Does Rule 3.5 automatically bar ex parte contact once a proceeding is a tribunal?

A: No. The opinion concludes Rule 3.5(a)(2) applies only in an adversary proceeding, and even then permits communications authorized by law, so an agency may authorize ex parte communications by its own rules.

Q: How should a lawyer classify a rate-making proceeding?

A: The opinion treats it as a fact question and offers three factors: whether specific parties are affected, whether parties may present evidence and cross-examine, and whether the decision is made by a policy-maker or an independent trier of fact like an administrative law judge.

Background and rules framework

The opinion interprets the New York definitions of "tribunal" (Rule 1.0(w)) and "matter" (Rule 1.0(l)), both with Model Rule 1.0 counterparts, together with Rule 3.5 (Model Rule 3.5, impartiality of tribunals) and Rule 3.9 (Model Rule 3.9, advocate in non-adjudicative proceedings). It also discusses New York Rule 3.5(a)(2), which has no direct Model Rule counterpart and derives from former DR 7-110(B), and references the State Administrative Procedure Act's definitions of "rule" and "adjudicatory proceeding."

Citations and references

Rules of Professional Conduct:

  • MR 3.5 (impartiality and decorum of the tribunal); MR 3.9 (advocate in nonadjudicative proceedings); MR 1.0 (terminology)
  • NY Rules 1.0(l) ("matter"), 1.0(w) ("tribunal"), 3.5, 3.5(a)(2), 3.9
  • Former DR 7-110(B)

Statutes:

  • State Administrative Procedure Act 102(2), 102(3) (definitions of "rule" and "adjudicatory proceeding")

Cases:

  • California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972), on the right to petition agencies
  • Allied Chemical v. Niagara Mohawk, 72 N.Y.2d 271 (1988), on "quasi-judicial" agency proceedings and collateral estoppel

See also

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