Can a Child Support Enforcement Agency staff attorney represent the state in a CSEA matter the same attorney decided as an administrative hearing officer?

Plain-English summary

The Board addressed whether a lawyer who works as a Child Support Enforcement Agency (CSEA) staff attorney may represent the state in a CSEA matter the same lawyer earlier decided while serving as a CSEA administrative hearing officer. It applies Prof.Cond.R. 1.12, which limits a lawyer's later representation in a matter the lawyer participated in personally and substantially as an adjudicative officer; Comment [1] confirms "adjudicative officer" includes hearing officers. Because issuing administrative orders or determinations in a CSEA matter is a significant exercise of authority, the Board concludes the hearing officer participated personally and substantially, so the staff attorney may not later represent the state in that same matter unless all parties give informed consent confirmed in writing. The opinion withdraws Adv. Op. 2006-6.

The Board adds that consent under Rule 1.12 is not the end of the analysis. Prof.Cond.R. 1.7(c)(1) bars a representation prohibited by other law, and the opinion points to O.A.C. 5101:12-1-80, which bars a private IV-D contract attorney from representing the CSEA in matters where that attorney made administrative determinations or orders. It also flags Ohio's revolving-door statute, R.C. 102.03(A), which restricts a former public employee from representing a client on a matter in which the employee personally participated; the Board notes it lacks authority to interpret that statute and directs the attorney to seek an Ohio Attorney General opinion. The opinion states that, even where Rule 1.12 might technically permit the conduct with all consents, the better practice is to assign a different staff attorney under Prof.Cond.R. 1.12(c)(1),(2), which also addresses concerns under Prof.Cond.R. 8.4(d) and 8.4(e).

On the second question, the Board concludes a CSEA staff attorney is not barred from representing the state in an action merely because a party once appeared before that attorney in a different CSEA matter. The same person may be involved in several distinct child-support matters over time; the ethical test is whether, while serving as hearing officer, the attorney had substantial responsibility in the currently pending matter, which depends on the facts. The opinion also notes that whether the two public positions are compatible is a question outside the Board's authority, for the Attorney General.

In practice

Under this opinion, a CSEA staff attorney who previously decided a particular CSEA matter as a hearing officer is disqualified from representing the state in that same matter unless every party gives informed written consent, and even then other law (the IV-D administrative-code provision and the public-employee revolving-door statute) may independently bar the representation. Per the opinion, the cleaner course the Board identifies is screening: assign a different staff attorney under Prof.Cond.R. 1.12(c)(1),(2), which the Board says also reduces concerns about conduct prejudicial to the administration of justice (Rule 8.4(d)) and any implication of improper influence over a government agency (Rule 8.4(e)).

The opinion is narrower on the second scenario. It holds that prior contact with the same individual in a different matter does not, by itself, disqualify the staff attorney; the question is whether the attorney had substantial responsibility, as a hearing officer, in the matter now pending. The opinion directs the attorney to seek an Attorney General opinion on the IV-D statute, R.C. 102.03, and the compatibility-of-office question, which are outside the Board's advisory authority.

Common questions

Q: Can a CSEA staff attorney prosecute a case the attorney decided as a hearing officer?

A: Not unless all parties give informed consent confirmed in writing. The opinion concludes that issuing administrative orders or determinations means the attorney participated personally and substantially as an adjudicative officer under Prof.Cond.R. 1.12(a).

Q: Does written consent from all parties end the analysis?

A: No. The opinion states Prof.Cond.R. 1.7(c)(1) still bars a representation prohibited by other law, and points to O.A.C. 5101:12-1-80 and R.C. 102.03(A) as provisions that may independently prohibit the representation even with consent.

Q: What does the Board say is the better approach?

A: Per the opinion, the better practice is to assign or hire a different CSEA staff attorney to handle the matter under Prof.Cond.R. 1.12(c)(1),(2), which also helps avoid concerns under Prof.Cond.R. 8.4(d) and (e).

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

A: No. The opinion concludes a staff attorney is not barred solely because a party once appeared before the attorney in a different CSEA matter; the test is whether the attorney had substantial responsibility, as hearing officer, in the matter now pending, which turns on the facts.

Q: Who decides the statutory and compatibility-of-office questions?

A: The opinion states those questions (the IV-D administrative code, R.C. 102.03, and compatibility of the two public positions) are outside the Board's advisory authority, and directs the attorney to seek an opinion from the Ohio Attorney General.

Background and rules framework

The opinion interprets Prof.Cond.R. 1.12 (former judge, arbitrator, mediator, or other adjudicative officer), including subsection (a) (personal and substantial participation; informed written consent of all parties) and (c)(1),(2) (screening of a disqualified lawyer), with Comment [1] defining "adjudicative officer" to include hearing officers. It also applies Prof.Cond.R. 1.7(c)(1) (representation prohibited by other law) and Prof.Cond.R. 8.4(d) and (e). The opinion situates the ethics analysis alongside non-Board authorities the Board cannot interpret: R.C. 3125.17 and 3111.x (CSEA staff attorneys and hearing officers), O.A.C. 5101:12-1-80 (IV-D contract attorneys), and R.C. 102.03(A) (Ohio's public-employee revolving-door restriction).

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 1.12, including (a) and (c)(1),(2), and Comment [1] / Model Rule 1.12 (former adjudicative officer)
• Ohio Prof.Cond.R. 1.7(c)(1) / Model Rule 1.7 (representation prohibited by other law)
• Ohio Prof.Cond.R. 1.0(b), (f) (definitions; informed consent)
• Ohio Prof.Cond.R. 8.4(d), (e) (conduct prejudicial to the administration of justice; implying improper influence)

Statutes and regulations:

• R.C. 3125.17 (CSEA staff attorneys); R.C. 3111.46, 3111.49, 3111.53 (CSEA administrative hearing officers and orders)
• R.C. 102.03(A) (representation restriction on present and former public employees)
• O.A.C. 5101:12-1-80; O.A.C. 5101:12-30-25 (IV-D contract attorneys; hearing-officer duties)
• 42 U.S.C. 651-667 (Title IV-D of the Social Security Act)

Cases and AG opinions:

• In re Z.M., 2019-Ohio-1192 (12th Dist.)
• Ohio Atty. Gen. Op. 87-033 (1987); OAG Op. 2005-022

Prior opinions referenced:

• Ohio BPC Adv. Op. 2006-6 (withdrawn by this opinion)
• Ohio BPC Adv. Op. 2019-05 (government employees seeking consent to conflicted representation)

See also

• NY State Bar Op. 389: Former Judge as Advocate in the Same Matter
• NY State Bar Op. 1064: Former Judge Conflict and Firm Screening
• OH BPC Ethics Op. 2024-01: In-House Lawyer Representing the Employer's Customers

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2023/06/Adv.-Op.-2023-6-Final.pdf

Original opinion text

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

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

Child Support Enforcement Agency Staff Attorney's Prior Service as a Child Support Enforcement Agency Administrative Hearing Officer

SYLLABUS: Absent informed consent, confirmed in writing of all parties, a Child Support Enforcement Agency [hereinafter CSEA] staff attorney may not represent the state in any action involving a CSEA matter in which that staff attorney issued administrative orders as a CSEA administrative hearing officer. However, other law may prohibit the CSEA staff attorney's representation even with the consent of all parties. 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 in a different matter while the staff attorney served as an administrative hearing officer.

APPLICABLE RULE: Prof.Cond.R. 1.12

QUESTIONS PRESENTED:

1) May a CSEA staff attorney represent the state in any action, including actions for contempt, involving a CSEA matter in which the staff attorney participated as the CSEA hearing officer making determinations or issuing administrative orders?

2) Is a CSEA staff attorney barred from representing the state in a matter solely because a party to the matter once appeared before that staff attorney in another matter in which the staff attorney participated as the administrative hearing officer?

OPINION:

This inquiry raises questions in several areas, including the application of the Ohio Rules of Professional Conduct, Ohio Ethics Law issues, and compatibility of office issues. Administrative officers are hired by a CSEA, "to issue administrative orders determining the existence or nonexistence of a parent and child relationship, requiring the payment of child support or, both." R.C. 3111.53. CSEA administrative officers are commonly referred to as hearing officers. The officer may schedule, and conduct conferences and hearings, related to issues of paternity and the payment of support to include review, adjustment, and mistake of fact hearings along with other administrative duties as determined by the CSEA director. O.A.C. 5101:12-30-25. An administrative order or determination by a CSEA administrative hearing officer becomes a final order unless an action to contest the order or determination is brought by the parties. For example, an administrative determination by an administrative hearing officer as to the existence or nonexistence of a parent and child relationship becomes a final and enforceable order unless the mother, alleged father, guardian, or legal custodian of the child brings an action within a prescribed time. R.C. 3111.46, 3111.49.

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." R.C. 3125.17. 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 a CSEA matter, such as a contempt action filed for failure to abide by a final court order.

Rules of Professional Conduct

Prof.Cond.R. 1.12 and Rule 1.7 are applicable to the question of whether a CSEA staff attorney may represent the state in an action involving a matter in which the staff attorney participated as a hearing officer making determinations or issuing administrative orders. Prof.Cond.R. 1.12(a) limits the ability of a lawyer to accept representation in matters the lawyer participated in personally and substantially as an adjudicative officer, unless all the parties to the proceeding give informed consent, confirmed in writing. See also Prof.Cond.R. 1.0(b) and (f). Comment [1] to the rule specifically notes that the term "adjudicative officer" includes hearing officers.

As indicated above, administrative orders or determinations by a CSEA administrative hearing officer are a significant exercise of authority in a CSEA matter. When a lawyer serving as a CSEA administrative hearing officer participates in a matter by rendering a determination on an issue and issuing an administrative order, he or she has participated personally and substantially in the matter. Thus, a CSEA staff attorney may not represent the state in any matter in which that staff attorney participated as a CSEA administrative hearing officer making administrative determinations or issuing administrative orders, unless all parties give informed written consent.

However, even if all parties provide informed, written consent, Prof.Cond.R. 1.7(c) must be considered. Prof.Cond.R. 1.7 governs conflicts of interest related to current clients. Here, the CSEA staff attorney must consider if the representation of the current client, the state, is prohibited by other law as required by Prof.Cond.R. 1.7(c)(1). As indicated above, R.C. 3125.17 permits a CSEA to employ staff attorneys to advise, assist, and represent the agency in its performance of its functions pertaining to the enforcement of support orders. However, O.A.C. 5101:12-1-80 indicates that when a CSEA intends to enter into an IV-D contract with a private attorney to provide legal services as described in R.C. 3125.17, the private attorney shall not represent the CSEA on matters in which that attorney participated as a CSEA administrative officer making administrative determinations or issuing an administrative order. Thus, even if the parties to a matter have consented to a lawyer representing the CSEA on a matter in which he or she previously served as a hearing officer, the above referenced administrative code section may prohibit the conduct. A CSEA staff attorney subject to an IV-D contract, should seek an opinion from the Ohio Attorney General regarding the interpretation of the above referenced statute and administrative code section.

Further, while the Board has no advisory authority as to the application of Ohio Ethics Law for public officials and employees, except as applied to judges and court employees, a CSEA staff attorney should be aware that R.C. 102.03(A) states that, "[n]o present or former public official or employee shall, during public employment or for twelve months thereafter, represent a client or act in a representative capacity for any person on any matter in which the public official or employee personally participated as a public official or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or other substantive exercise of administrative discretion." Under this provision, a CSEA staff attorney's prior participation and exercise of administrative discretion may serve to prohibit the representation pursuant to Prof.Cond.R. 1.7(c)(1). A CSEA staff attorney in this circumstance should seek an opinion from the Ohio Attorney General regarding the interpretation of the above referenced statute and administrative code section.

While the conduct in question may be technically permissible pursuant to Prof.Cond.R. 1.12 when all of the above referenced considerations are met, the Board remains of the opinion that the better practice is to assign or hire a different CSEA staff attorney to handle these types of matters. This practice is permissible pursuant to Prof.Cond.R. 1.12(c)(1),(2) to ameliorate the conflict. It also serves to preserve the confidence of the parties and the public in two ways. First, it helps eliminate any question that the conduct is prejudicial to the administration of justice when the same individual issues administrative orders or determinations and subsequently represents the state in matters related to those orders or determinations. See Prof.Cond.R. 8.4(d). Second, it may eliminate any implication that the CSEA staff attorney has the ability to improperly influence a government agency or official. See Prof.Cond.R. 8.4(e).

Service as Administrative Officer in Prior Matter

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 him or her when he or she served as a CSEA hearing officer. Over time, the same person may be the subject of several distinct child support matters, with different parties. 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 currently pending matter. This determination will depend upon the facts and circumstances and the parties involved.

Compatibility of Office

A lawyer who serves as both an administrative hearing officer and staff attorney for a CSEA should consider the compatibility of those two public positions. See OAG Op. 2005-022 ("In addition, the administrative hearing officer serves as a staff attorney for the CSEA when required.") The question of compatibility of public positions is beyond the scope of the Board's advisory authority. A lawyer in this circumstance should seek an opinion from the Ohio Attorney General.