Can a hearings officer, agency adjudicator, or judge apply or negotiate for a government legal job while a matter involving the prospective employer is pending before them?

Plain-English summary

Three adjudicators are interested in employment with the Oregon Department of Justice (DOJ): Lawyer A, a hearings officer who decides contested cases in which DOJ represents the state; Lawyer B, an agency chair who presides over hearings in which DOJ does not represent her agency; and Judge C, a circuit court judge whose criminal cases are handled on appeal by DOJ. The opinion asks when each may apply or negotiate for a DOJ position.

The opinion applies Oregon RPC 1.12(b), which bars a judge or other adjudicative officer from negotiating for employment with any party, or any lawyer for a party, in a matter in which the lawyer is participating personally and substantially. Drawing on ABA Formal Opinion 96-400, the opinion concludes that mere submission of an unsolicited application or gathering preliminary information is not negotiation, but the line is crossed when the candidate's and employer's interests are mutual and concrete and involve substantive discussion of qualifications, salary, and terms of employment.

Applying the rule, the opinion concludes Lawyer A participates personally and substantially as an adjudicator and DOJ is a lawyer for a party, so Lawyer A may apply but may not negotiate with DOJ while presiding over a case DOJ is handling; even a mere application could separately violate Oregon RPC 8.4(a)(4) or (a)(5) if it signals that DOJ will get special consideration or that the decision will be influenced by DOJ's response. Lawyer A may negotiate once the case is on appeal, because A is no longer participating personally and substantially. Lawyer B may apply or negotiate freely, because DOJ is neither a party nor a lawyer for a party in her agency matters. Judge C may apply and even negotiate during a criminal trial, because DOJ generally does not represent the state in local criminal prosecutions (DOJ and the district attorney are separate offices, and the prosecutor's client is the people, not DOJ as employer), and may also negotiate during an appeal because C is then no longer participating personally and substantially; the exception is where a DOJ lawyer is specially appointed to prosecute, making DOJ a lawyer for a party.

In practice

This opinion was revised in 2026 and interprets the current Oregon Rules of Professional Conduct. The opinion holds that an adjudicator's job search becomes a problem under Oregon RPC 1.12(b) only when it ripens into actual negotiation with a party or a party's lawyer in a matter the adjudicator is personally and substantially handling. Per the opinion, the analysis turns on two questions: whether the contact has become a concrete, mutual negotiation rather than a bare application, and whether the prospective employer is a party or lawyer for a party in a matter still before the adjudicator. The opinion holds that appeals end personal and substantial participation, that a mere application can still violate Oregon RPC 8.4(a)(4) or (a)(5) if it suggests improper influence, and that DOJ is usually not a party in local criminal cases.

Common questions

Q: Can a hearings officer apply for a job with an agency that appears before them?

A: Yes, applying is allowed. The opinion concludes Oregon RPC 1.12(b) does not bar submitting an application, but it bars negotiating for employment with a party or a party's lawyer while the adjudicator is personally and substantially handling that matter.

Q: When does applying become prohibited "negotiating"?

A: The opinion concludes negotiation occurs when the candidate's and employer's interests are mutual and concrete and involve substantive discussion of qualifications, salary, and terms, not when an application is merely submitted.

Q: Does the bar lift once the case is on appeal?

A: Yes. The opinion concludes that once a matter is on appeal the adjudicator is no longer participating personally and substantially, so negotiating with a party's appellate lawyer does not violate Oregon RPC 1.12(b).

Q: Can a trial judge negotiate with the DOJ during a criminal trial?

A: Generally yes. The opinion concludes DOJ usually does not represent the state in local criminal prosecutions, so it is neither a party nor a lawyer for a party; the exception is when a DOJ lawyer is specially appointed to prosecute the case.

Background and rules framework

The opinion interprets Oregon RPC 1.12(b) (a judge or adjudicative officer negotiating for employment) and Oregon RPC 8.4(a)(4) and (a)(5) (conduct prejudicial to the administration of justice; implying improper influence over a government agency), corresponding to Model Rules 1.12 and 8.4. It uses ABA Formal Opinion 96-400 to define when a job search becomes negotiation.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.12(b) / Model Rule 1.12 (adjudicator negotiating for employment)
• Oregon RPC 8.4(a)(4), 8.4(a)(5) / Model Rule 8.4 (conduct prejudicial to the administration of justice; implying improper influence)

Cases:

• In re Haws, 310 Or 741, 801 P2d 818 (1990), interpreting Oregon RPC 8.4(a)(4) terms

Other opinions cited:

• ABA Formal Ethics Op. No. 96-400 (when a job search becomes negotiation); ABA Formal Ethics Op. No. 342 (1975)
• OSB Formal Ethics Op. No. 2005-120 (rev 2026): "personally and substantially" under Oregon RPC 1.12(a)

See also

• OSB Ethics Op. 2005-120: Lawyers Switching Firms, Prosecutor/Judge Screening
• OSB Ethics Op. 2005-57: Government Lawyer and Support Enforcement

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2009-181.pdf