Can a lawyer communicate ex parte with an administrative law judge during a contested-case hearing, and does an Attorney General's office lawyer have more latitude to do so?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A contested-case hearing is scheduled before an administrative law judge (ALJ) for a state agency. The opinion asks whether a private party's counsel may communicate ex parte with the ALJ, and whether agency counsel from the Oregon Attorney General's office may do so.
The opinion applies Oregon RPC 3.5(b), which bars a lawyer from communicating ex parte on the merits of a cause with a judge or other official during the proceeding unless authorized by law or court order. Drawing on case law under the former rule, the opinion notes "the merits of the cause" is construed broadly to reach any matter that might indirectly affect a ruling, including procedural matters that confer a strategic or tactical advantage, and that a violation does not depend on whether the official's impartiality was actually affected. It concludes RPC 3.5(b) appears to apply to ALJs and hearing officers just as to trial and appellate judges, while acknowledging the question is "not free from doubt" in the administrative context.
On private-party counsel, the opinion explains the law in Oregon is unsettled about ex parte communications with ALJs. ORS 183.462 neither expressly allows nor forbids such communications, but by requiring that ex parte communications on a fact in issue be placed on the record and that other parties get a chance to rebut them, it implies they may occur in some instances. The opinion reasons that a lawyer who concludes in good faith that ex parte communication is authorized by ORS 183.462 or similar law should not be found to violate RPC 3.5(b), citing authority that a good-faith interpretation of unsettled law may support a finding that the contact was authorized. It also notes the aspirational ALJ code allowing limited scheduling or administrative ex parte contact lacks the force of law.
On the Attorney General's office, the opinion concludes agency counsel may have greater legal authority to communicate with the agency's ALJ or hearing officer, because statutes contemplate the Attorney General rendering legal advice to a state agency or its hearing officer in a pending contested case. Where the applicable statutes or rules so provide, a government lawyer's ex parte communication is permitted regardless of limits that might apply to a private lawyer. The opinion adds that it does not view an ALJ or hearing officer as a represented party under RPC 4.2.
In practice
The opinion holds that, under Oregon RPC 3.5(b) as it stood at the time of the opinion, the bar on ex parte communication on the merits appears to extend to administrative law judges and hearing officers, so a private party's lawyer generally needs legal authorization to communicate ex parte during a contested-case hearing. The opinion treats Oregon law as unsettled and reasons that a good-faith reliance on the APA's ex parte provisions (with their disclosure-and-rebuttal requirements) should not be treated as a violation, and that Attorney General counsel may have greater statutory authority to advise an agency's hearing officer. Verify the current text of Oregon RPC 3.5 and the cited statutes and administrative rules before relying on any specific point.
Common questions
Q: Does the ban on ex parte contact with judges apply to administrative law judges?
A: It appears so. The opinion concludes RPC 3.5(b) appears to apply to ALJs and hearing officers just as it applies to court judges, though it notes the point is not free from doubt in the administrative setting.
Q: Can a private party's lawyer ever contact an ALJ ex parte?
A: Possibly, where a statute or rule authorizes it. The opinion concludes the Oregon APA's disclosure provisions imply ex parte communication may occur in some instances, and a lawyer acting on a good-faith reading of that authority should not be found to violate RPC 3.5(b).
Q: Do Attorney General lawyers have more latitude?
A: The opinion concludes agency counsel from the Attorney General's office may have greater statutory authority to advise the agency's ALJ or hearing officer, and where the statutes or rules so provide, that ex parte communication is permitted.
Background and rules framework
The opinion interprets Oregon RPC 3.5(b) (no ex parte communication on the merits), corresponding to Model Rule 3.5, against the Oregon Administrative Procedures Act (ORS 183.462, ORS 183.685) and related administrative rules. It also notes that an ALJ or hearing officer is not a represented party under RPC 4.2. The analysis turns on whether the no-contact restriction extends to administrative adjudicators and on what statutory authority permits some contact.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 3.5(b) / Model Rule 3.5 (no ex parte communication on the merits)
Statutes and rules:
- ORS 183.462; ORS 183.685 (APA ex parte disclosure requirements)
- OAR 137-003-0055; OAR 137-003-0660 (contested-case ex parte rules)
Cases:
- In re Thompson, 325 Or 467, 940 P2d 512 (1997)
- In re Gillis, 297 Or 493, 686 P2d 358 (1984)
- Forelaws on Bd. v. Energy Facility Siting Council, 306 Or 205, 760 P2d 212 (1988)
See also
- OSB Ethics Op. 2005-84: Ex Parte Contact by a Nonparty's Lawyer in an OLCC Hearing
- OSB Ethics Op. 2005-80: Contacting a Company's Current and Former Employees
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-83.pdf
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