Can a child-support agency staff attorney represent the state in a matter where the same lawyer earlier issued the administrative order as the agency's hearing officer?

Currency note

The Board withdrew this opinion by Advisory Opinion 2023-06 on June 9, 2023; it is no longer current guidance. It was also issued in 2006, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007), and it interprets the former Ohio Code of Professional Responsibility. Successive conflicts for former adjudicative officers are now addressed by Ohio Prof. Cond. R. 1.12. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Plain-English summary

The inquiry asked whether a child support enforcement agency (CSEA) staff attorney could represent the state in court actions arising from matters the same person had handled earlier as the agency's administrative hearing officer. The Board first narrowed the question. It explained that whether one person may hold both positions (compatibility of public offices) is for the Ohio Attorney General, and that application of Ohio Ethics Law is for the Ohio Ethics Commission. The Board addressed only the professional-responsibility question under the Code.

On that question, the Board concluded that under DR 1-102(A)(5), DR 9-101(A), DR 9-101(B), and DR 9-101(C), a CSEA staff attorney may not represent the state in matters in which that attorney had participated as the CSEA administrative hearing officer by making determinations or issuing orders. The hearing officer is not a judge but performs a quasi-judicial role and is a public employee; having acted on the merits or had substantial responsibility in the matter, the same person could not later appear for the state in actions related to those orders. The Board treated this as conduct that would be prejudicial to the administration of justice and that could imply improper influence on the tribunal.

The Board drew one boundary. A staff attorney is not barred from representing the state in an action solely because a party in that action is someone who once appeared before the attorney as a hearing officer. The same person may be the subject of several distinct child-support matters over time. The test the opinion identified is whether, as hearing officer, the attorney had substantial responsibility in or acted on the merits of the specific matter, which depends on the facts.

Common questions

Q: Could the staff attorney prosecute a contempt action on an order they issued as hearing officer?

A: No. The opinion concluded a CSEA staff attorney may not represent the state in a contempt action for failure to abide by a court order involving a matter in which that attorney issued the administrative order as hearing officer.

Q: Did the bar extend to any matter the attorney handled as hearing officer?

A: Yes. Per the opinion, the attorney may not represent the state in any action involving a matter in which they participated as hearing officer by making determinations or issuing orders.

Q: Was the attorney disqualified just because a party had appeared before them before?

A: No. The opinion concluded the attorney is not barred solely because a party once appeared before them; the question is whether the attorney had substantial responsibility in, or acted on the merits of, the particular matter.

Q: Who decides whether the two positions may be held at once?

A: Not the Board. The opinion explained that compatibility of public offices is for the Ohio Attorney General and application of Ohio Ethics Law is for the Ohio Ethics Commission.

Background and rules framework

The opinion interprets former Ohio Code of Professional Responsibility DR 1-102(A)(5) (conduct prejudicial to the administration of justice), DR 9-101(A) (no private employment in a matter on which the lawyer acted in a judicial capacity), DR 9-101(B) (no private employment in a matter for which the lawyer had substantial responsibility as a public employee), and DR 9-101(C) (no implying ability to influence a tribunal improperly). The Board read DR 9-101(A) and (B) to reach acceptance of some public employment, not only private employment. The closest current analogues are Ohio Prof. Cond. R. 1.12 (former judge, arbitrator, mediator, or other third-party neutral) and R. 8.4(d) (Model Rules 1.12, 8.4).

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 1-102(A)(5), DR 9-101(A), DR 9-101(B), DR 9-101(C), Canon 9
• Current analogues: Ohio Prof. Cond. R. 1.12, 8.4(d) (Model Rules 1.12, 8.4)

Statutes:

• Ohio Rev. Code 3111.53, 3125.17 (CSEA administrative officers and staff attorneys)

Other opinions cited:

• Ohio BPC Op. 90-10 (1990): ethical questions involving CSEA attorneys
• Ohio Att'y Gen. Ops. 2005-022, 2002-039, 97-044: compatibility of public offices (cited as the Attorney General's domain)

See also

• Ohio BPC Op. 1990-010: Child Support Enforcement Attorney, Client, and Conflicts
• Ohio BPC Op. 2005-005: Former Magistrate Representing a Party in a Post-Decree Matter
• Ohio BPC Op. 1988-015: Former Public Defender, Prosecutor, and Special Prosecutor

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-06-006.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us

                                   OFFICE OF SECRETARY


                        OPINION 2006-6
                        Issued June 9, 2006
                  Withdrawn by Adv. Op. 2023-06

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility
which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: A CSEA staff attorney may not represent the state in a contempt
action filed against a party for failure to abide by a court order involving a CSEA
matter in which that staff attorney issued administrative orders as a CSEA
administrative hearing officer. A CSEA staff attorney may not represent the state
in any other action involving a CSEA matter in which that staff attorney
participated as the CSEA hearing officer making determinations or issuing
administrative orders. A CSEA staff attorney is not barred from representing the
state in an action solely because a party in the action is a person who once
appeared before that staff attorney who served as the administrative hearing
officer.

OPINION: This opinion addresses questions regarding a CSEA staff attorney
subsequently representing the state in actions involving matters in which the
staff attorney served as the CSEA administrative hearing officer.

  Is it proper for a CSEA staff attorney to represent the state in a
  contempt action filed against a party for failure to abide by a court
  order in a CSEA matter in which that staff attorney served as the
  CSEA administrative hearing officer and issued an administrative
  order?

  Is it proper for a CSEA staff attorney to represent the state in any
  other action involving a CSEA matter in which that staff attorney
  participated as the CSEA hearing officer making determinations or
  issuing administrative orders?

  Is a CSEA staff attorney barred from representing the state in an
  action solely because a party in the action is a person who once
  appeared before that staff attorney who served as the
  administrative hearing officer?

This inquiry raises several issues. One issue is the compatibility of a person
serving in two public positions, an administrative hearing officer and a staff
attorney for the same child support enforcement agency (CSEA).
Op. 2006-6 2

A second issue is whether it is ethically proper under the Ohio Code of
Professional Responsibility for an attorney to serve as a CSEA staff attorney in a
matter in which that staff attorney had involvement as a CSEA administrative
hearing officer.

A third issue is whether it is proper under Ohio Ethics Law for an attorney to
serve as a CSEA staff attorney in a matter in which that staff attorney had
involvement as a CSEA administrative hearing officer.

The first and third issues cannot be addressed by this Board. Advisory authority
as to compatibility of public positions lies with the Office of the Ohio Attorney
General. See e.g., OAG Op. 2005-022 (regarding whether a person may serve as
a part-time administrative hearing officer for a county child support enforcement
agency and a part-time magistrate of a court of common pleas in an adjacent
county); OAG Op. 2002-039 (2002) (regarding whether the positions of a CSEA
staff attorney and member of a county children services board within the same
county are compatible); OAG Op. 97-044 (1997) (regarding whether a person
may hold simultaneously the positions of assistant county prosecuting attorney
and administrative hearing officer for a child support enforcement agency).
Advisory authority as to the application of Ohio Ethics Law for public officials
and employees lies with the Ohio Ethics Commission.

Only the second issue is addressed herein. Advisory authority as to application of
the Ohio Code of Professional Responsibility properly lies with this Board. See
Gov.Bar R. V §2(C). See also Ohio SupCt, Bd Comm’rs on Grievances &
Discipline, Op. 90-10(1990) (regarding various ethical questions involving CSEA
attorneys).

Administrative officers are hired by a child support enforcement agency “to issue
administrative orders determining the existence or nonexistence of a parent and
child relationship, requiring the payment of child support or, both.” Ohio
Rev.Code Ann. §3111.53 (West 2005). CSEA administrative officers are
commonly referred to as hearing officers.

  OAC 5101:1:32:01(B) The administrative officer’s duties shall
  include, but not be limited to, issuing orders pertaining to
  paternity including genetic tests and support in accordance
  with sections 3111.21, 3111.38 and Chapter 3119. of the
  Revised Code. The officer may schedule and conduct
  conferences and hearings related to issues of paternity and
  the payment of support to include review and adjustment
  and mistake of fact hearings along with other administrative
  duties as determined by the CSEA director.

Administrative orders or determinations by a CSEA administrative hearing
officer are a significant exercise of authority in a CSEA matter. An administrative
order or determination by a CSEA administrative hearing officer becomes a final
court order unless an action to contest the order or determination is brought by
the parties. As an example, an administrative determination by an
Op. 2006-6 3

administrative hearing officer as to the existence or nonexistence of a parent and
child relationship becomes a final and enforceable order of a court unless the
mother, alleged father, guardian, or legal custodian of the child brings an action
within a prescribed time period. Ohio Rev.Code Ann. §§ 3111.46, 3111.48, 3111.49
(West 2005). As another example, an administrative order issued by a CSEA
administrative hearing officer for the payment of support and provision of a
child’s health care becomes a final court order unless an action is filed by the
mother or father within a prescribed period of time. Ohio Rev.Code Ann. §§
3111.80, 3111.81, and 3111.84 (West 2005). See also, OAC 5101:1:32-01(C) (“In
any administrative determination, the person(s) who is the subject of the process
has the right to a notice and a right to contest the administrative determination to
a judicial authority within a specified time limit.”)

Staff attorneys may be hired by a CSEA “to advise, assist, and represent the
agency in performance of its functions pertaining to the enforcement of support
orders.” Ohio Rev.Code Ann. § 3125.17 (West 2005). A CSEA staff attorney
might be called upon to represent the state in a court action brought by a person
challenging an administrative hearing officer’s determination or order, or to
represent the state in a civil proceeding involving in a CSEA matter, such as a
contempt action filed for failure to abide by a final court order.

Pursuant to DR 102(A)(5), DR 9-101(A), DR 9-101(B), and DR 9-101(C), a CSEA
staff attorney may not represent the state on matters in which that staff attorney
participated as a CSEA administrative hearing officer making administrative
determinations or issuing administrative orders.

Under DR 1-102(A)(5), an attorney is prohibited from engaging in conduct
prejudicial to the administration of justice. The proper administration of justice
requires that the same individual does not issue administrative orders or
determinations and subsequently represent the state in matters related to those
orders or determinations.

Under Canon 9, an attorney is instructed to avoid even the appearance of
impropriety. DR 9-101(A) states that “[a] lawyer shall not accept private
employment in a matter upon the merits of which he [she] has acted in a judicial
capacity.” DR 9-101(B) states that “[a] lawyer shall not accept private
employment in a matter in which he [she] had substantial responsibility while he
[she] was a public employee.” Both of these rules apply. An administrative
hearing officer is not a judge, but performs a quasi-judicial role in hearing child
support matters. An administrative hearing officer is a public employee.

Both DR 9-101(A) and DR 9-101(B) explicitly restrict the acceptance of private
employment, but implicitly and logically also restrict the acceptance of some
public employment in matters in which an attorney acted upon the merits or in
matters in which he or she had substantial responsibility. Under these rules, it is
improper for the same individual who issues administrative orders or
determinations in a matter to subsequently represent the interests of the state in
actions related to those orders or determinations. When an attorney serving as a
CSEA administrative hearing officer participates in a matter, renders a
Op. 2006-6 4

determination, or issues an administrative order, he or she is considered to have
exercised substantial responsibility and or acted upon the merits.

DR 9-101(C) states that “[a] lawyer shall not state or imply that he [she] is able to
influence improperly or upon irrelevant grounds any tribunal, legislative body, or
public official.” Serving as a CSEA staff attorney in an action involving a matter
in which the attorney participated as the CSEA administrative hearing officer
may imply that the attorney would bear improper influence upon a tribunal
hearing the action.

A CSEA staff attorney is not barred from the representing the state in an action
solely because a party in the action is a person who once appeared before him or
her as a CSEA hearing officer. Over time, the same person may be the subject of
several distinct child support matters. In deciding whether representation of the
state is proper in a CSEA matter, the ethical determination is whether the CSEA
staff attorney while serving as a CSEA administrative hearing officer had
substantial responsibility in the matter or acted upon the merits of the matter,
such as by participating in the matter, rendering a determination, or issuing an
administrative order. This determination will depend upon the facts and
circumstances.

In conclusion, the Board’s advice is follows. A CSEA staff attorney may not
represent the state in a contempt action filed against a party for failure to abide
by a court order involving a CSEA matter in which that staff attorney issued
administrative orders as a CSEA administrative hearing officer. A CSEA staff
attorney may not represent the state in any other action involving a CSEA matter
in which that staff attorney participated as the CSEA hearing officer making
determinations or issuing administrative orders. A CSEA staff attorney is not
barred from representing the state in an action solely because a party in the
action is a person who once appeared before that staff attorney who served as the
administrative hearing officer.

Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to
prospective or hypothetical questions regarding the application of the
Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code
of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.