Can a lawyer who served as a hearing officer making only preliminary procedural rulings in a board's rulemaking later represent that board as counsel on appeal of the rule?

Plain-English summary

A lawyer served as a "hearing officer" for a public board, directed to make whatever preliminary procedural rulings and arrangements were necessary in a statutory rulemaking. He conducted no hearing, took no testimony, submitted no findings or conclusions, and did not participate in adjudicatory proceedings or the merits of the rulemaking; he ruled on only two matters, a motion to intervene and a motion for extension of time. After the board adopted the rule, parties appealed to the New Mexico Supreme Court on the substantive basis of the rule, an appeal that had nothing to do with his two rulings. The board wished to appoint him as its counsel on appeal, and he asked whether that would violate the ethics rules.

The committee began from Rule 16-112(A) (SCRA 1986), which prohibits a lawyer from representing anyone in connection with a matter in which the lawyer participated personally as a judge or other adjudicative officer, absent consent of all parties. It concluded the lawyer did not act as an adjudicative officer when he ruled on two preliminary procedural matters in a regulatory (as distinguished from adjudicatory) proceeding. It found support in the comment to Model Rule 1.12, which states the rule does not apply where a former judge exercised remote or incidental administrative responsibility that did not affect the merits of a particular controversy.

The committee noted it would reach the opposite conclusion if either preliminary matter involved an issue raised on appeal. Because that was not the case, it found it difficult to see how Rule 16-112(A) was implicated or how any participant in the rulemaking would be prejudiced.

Currency note

This opinion was issued in 1987, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (Rule 16-112(A), SCRA 1986). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does making preliminary procedural rulings as a hearing officer disqualify a lawyer from later representing the board?

A: The opinion concluded it did not, because ruling on two preliminary procedural matters in a regulatory rulemaking did not make the lawyer an adjudicative officer within the meaning of Rule 16-112(A).

Q: What is the test for whether the former-adjudicator rule applies?

A: The committee drew on the comment to Model Rule 1.12: the rule does not apply where the lawyer exercised only remote or incidental administrative responsibility that did not affect the merits of a particular controversy.

Q: Would the answer change if the prior rulings related to the appeal?

A: Yes. The committee said it would reach the opposite conclusion if either of the two preliminary matters involved an issue raised on appeal.

Background and rules framework

The opinion applied Rule 16-112(A) of the Rules of Professional Conduct (SCRA 1986), barring a lawyer from representing anyone in a matter in which the lawyer participated personally as a judge or other adjudicative officer without the consent of all parties, and read it against the comment to Model Rule 1.12 (remote or incidental administrative responsibility). The provision corresponds to current Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral).

Citations and references

Rules of Professional Conduct:

• Rule 16-112(A) (SCRA 1986) (no representation in a matter in which the lawyer participated personally as a judge or other adjudicative officer, absent consent)
• Comment to Model Rule 1.12 (rule inapplicable to remote or incidental administrative responsibility not affecting the merits)

See also

• NM Ethics Op. 1987-4: Lawyer-Witness Against a Former Client
• NM Ethics Op. 1986-1: Former City Attorney Conflict

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1987/1987-10.pdf

Original opinion text

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

Advisory Opinion 1987-10
An attorney has requested an advisory opinion on a question presented by the following facts. The attorney, as a "hearing officer" for a public entity (hereinafter "Board"), was directed to make whatever preliminary procedural rulings and arrangements were necessary in a rulemaking procedure conducted by the Board pursuant to statutory authority. The attorney did not conduct any hearing, take testimony, submit findings or conclusions, or otherwise participate in any adjudicatory proceedings or on the merits of the rulemaking proceeding. While acting as a "hearing officer," the attorney ruled on only two matters, a motion to intervene and a motion for extension of time.
Following the Board's adoption of the rule, an appeal was taken to the New Mexico Supreme Court by various parties. The Board now intends to appoint the attorney as counsel for the Board on appeal. The appeal focuses exclusively on the substantive basis of the rule adopted by the Board and has absolutely nothing to do with the two rulings the attorney made. The attorney asks whether his acting as counsel on appeal violates the ethical rules.
A lawyer is prohibited from representing "anyone in connection with a matter in which the lawyer participated personally as a judge or other adjudicative officer" absent consent by all parties. SCRA 1986, Rule 16-112(A). The committee is of the opinion that the attorney did not act as an adjudicative officer when he ruled on two preliminary procedural matters involving a regulatory, as distinguished from an adjudicatory, matter. We are supported in our opinion by the comment to model Rule 1-12, in which it is stated that the rule does not apply when a former judge exercised remote or incidental administrative responsibility that did not affect the merits of a particular controversy.
The committee would reach the opposite conclusion if either of the two preliminary matters involved issues raised on appeal. Since that is not the case, it is difficult to see how Rule 16-112(A) is implicated or how prejudice would occur with regard to any participant in the rulemaking process.