Can an Assistant Attorney General serve as a hearing officer in a matter that the Attorney General's office might later litigate?

Plain-English summary

Opinion 03-01 arose when an Assistant Attorney General was randomly selected from a roster to serve as the impartial hearing officer in a due-process hearing under the Individuals with Disabilities Education Act (IDEA), between the parents of a disabled child and a school district. The parents objected, arguing a potential conflict between the Assistant Attorney General's role as a neutral adjudicator and his loyalty to the Attorney General's office, which might later represent the school district. The hearing officer recused himself for lack of clear guidance and then asked the Committee whether serving would violate the Rules of Professional Conduct.

The Committee answers no, stressing that its opinion is narrow and limited to the Rules of Professional Conduct; it does not address the IDEA, its regulations, the Code of Judicial Conduct, or public policy. The governing rule is Rule 1.12, which bars a lawyer from later representing anyone in a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, and bars the lawyer's firm from doing so unless the lawyer is screened and apportioned no fee and notice is given to the tribunal. Rule 1.12 does not preclude the Assistant Attorney General from serving as a hearing officer when no other lawyer in the office will appear before him in that matter. Employment with the office, without personal involvement in the matter as an advocate, does not violate Rule 1.12.

The Committee explains that the word "lawyer" in Rule 1.12(a) applies to the individual attorney, not the whole office, so the conflict is attorney-specific and not imputed office-wide. It aligns the conclusion with the Model Rule 1.12 commentary (disqualification requires substantial and personal participation in the same matter) and with the Committee's prior opinions, including Opinion 95-02A (a lawyer may represent defendants in a district where a law partner is a justice court judge, if the lawyer does not appear before the partner), Opinion 142 (conflicts in the Attorney General's office are analyzed attorney-by-attorney, not imputed to all), and Opinion 24 (a deputy county attorney may serve as a pro tem judge for misdemeanors in a different county). The thread is that the Rules do not bar simultaneous, potentially incompatible roles of adjudicator and advocate so long as the precise matter is not the same and the risk of conflicting loyalties is not direct and substantial.

In practice

Under this opinion, and under the Utah Rule 1.12 as it stood at the time (the opinion issued in 2003, before the Utah Supreme Court's 2005 adoption of the Ethics 2000-based revisions), an Assistant Attorney General may serve as a hearing officer for a Utah agency in a matter the office may later litigate, provided the lawyer had no personal and substantial involvement in that matter on behalf of the office and no other lawyer from the office appears before him in it. The opinion holds the conflict under Rule 1.12 is attorney-specific and is not imputed to the entire Attorney General's office, and that a lawyer who serves as the adjudicator may not afterward represent a party in the same matter. The analysis turns on whether the lawyer participated personally and substantially in the same matter, not on the office's general representation of the agency. Confirm the current text of Utah Rule 1.12 before relying on the specifics here.

Common questions

Q: Does working for the Attorney General disqualify a lawyer from being a hearing officer?

A: No. The opinion concludes that employment by the office, without the lawyer's personal involvement in the matter as an advocate, does not by itself preclude the lawyer from serving as a hearing officer in a matter the office may later handle (paragraphs 2, 6).

Q: Is the conflict imputed to the whole Attorney General's office?

A: No. The opinion explains that "lawyer" in Rule 1.12(a) refers to the individual attorney, so the conflict is attorney-specific and is not imputed to the entire office (paragraphs 7, 9).

Q: Can the lawyer who served as hearing officer later represent a party in that case?

A: No. The opinion states that under Rule 1.12 a lawyer who served as an adjudicative officer may not later represent either party in the same matter, and a firm the lawyer joins may do so only with screening, no shared fee, and notice to the tribunal (paragraphs 6-7).

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 1.12 (former judge, arbitrator, or other adjudicative officer, Model Rule 1.12), which prohibits a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as an adjudicative officer, with a screening mechanism that prevents imputation to the lawyer's firm. The analysis turns on the personal-and-substantial-participation standard and on the attorney-specific (not office-wide) nature of the disqualification. The Committee expressly limits its opinion to the Rules of Professional Conduct and does not opine on the IDEA, the Code of Judicial Conduct, or public policy.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.12 / Utah Rule 1.12 (former judge, arbitrator, or other adjudicative officer)

Statutes:

• Individuals with Disabilities Education Act, 20 U.S.C. secs. 1400 et seq. (referenced as the proceeding's subject matter)

Cases:

• Mississippi Comm'n on Judicial Performance v. Atkinson, 645 So. 2d 1331 (Miss. 1994), switching between judge and advocate roles

Other opinions cited:

• Utah Ethics Advisory Opinion 95-02A (1996): a lawyer may represent defendants in a district where a partner sits as a justice court judge, if the lawyer does not appear before the partner
• Utah Ethics Advisory Opinion 142 (1994): Attorney General's office conflicts are analyzed attorney-by-attorney, not imputed
• Utah Ethics Advisory Opinion 24 (1976): a deputy county attorney may serve as a pro tem judge in a different county
• ABA Formal Opinion 242 (quoted on the difficulties of acting as judge and advocate)

See also

• AL Ethics Op. 1993-12: Hearing Officer Before Same Agency
• AL Ethics Op. 2008-02: Imputed Disqualification
• AL Ethics Op. 1990-05: DA Office Imputed Conflict
• ABA Formal Op. 97-409: Ex-Government Lawyer Conflicts

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2003-01/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2003-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The two-column PDF has been reassembled into reading order by paragraph; the linked source is authoritative.

Utah Ethics Opinions 2003. 03-01. USB EAOC Opinion No. 03-01 UTAH STATE BAR Ethics Advisory Opinion Committee

Opinion No. 03-01

Issued January 30, 2003

¶1 Issue: May a Utah Assistant Attorney General serve as a hearing officer or other adjudicator for a Utah government agency on a matter for which the Office of Attorney General, which employs the attorney, may eventually undertake an advocacy role?

¶ 2 Conclusion: Yes. Under the Utah Rules of Professional Conduct, a lawyer's employment by the Office of Attorney General does not, by itself and without the lawyer's personal involvement in the matter before him, preclude the lawyer from serving as a hearing officer for a governmental agency in a matter the Office of Attorney General may later undertake as an advocate for the agency.

¶ 3 Background: From a roster the Utah State Office of Education maintain, (fn1) an attorney in the Utah Attorney General's office was randomly selected to serve as a hearing officer in a due-process hearing arising under the Individuals with Disabilities Education Act ("IDEA"). (fn2) Petitioners were the parents of a disabled child. Respondent was the affected school district. The child's parents were opposed to any Assistant Attorney General serving as a hearing officer because they claimed a potential conflict of interest between the Assistant Attorney General's role as an impartial hearing officer and loyalty to his employer, which eventually might represent the school district in an advocacy role. Accordingly, Petitioners requested the Assistant Attorney General to recuse himself as a hearing officer.

¶ 4 On October 10, 2002, the hearing officer issued a "Decision on Petitioners' Motion to Recuse Hearing Officer," granting the Petitioner's Motion to Recuse, though he concluded "Respondents' arguments [against recusal] are far more persuasive and logically correct" than Petitioner's arguments. Notwithstanding what he viewed as Respondent's superior arguments, the hearing officer recused himself because, among other reasons, he felt there is "a lack of clear guidance on the conflict of interest issue, and the current lack of any safe harbor from an ethics complaint." The hearing officer subsequently requested an Ethics Advisory Opinion from the Committee on this issue. (fn3)

¶ 5 Analysis: At the outset, we stress our opinion on the issue stated is necessarily limited to the scope of our jurisdiction–namely, whether an Assistant Attorney General who serves as a hearing officer under the facts summarized above will be in violation of the Utah Rules of Professional Conduct. We do not opine on how the IDEA, its supporting regulations and case law, the Utah Code of Judicial Conduct or public policy may bear on the issue. Our analysis and conclusion are, therefore, intentionally narrow and should not be construed otherwise.

¶ 6 The primary rule applicable to this issue is Rule1.12 of the Utah Rules of Professional Conduct. (fn4) By its terms, Rule1.12 prohibits an Assistant Attorney General from serving as a hearing officer and later representing either party in any subsequent dispute. The rule likewise prohibits any law firm an Assistant Attorney General may later join from representing either party in the same matter, unless he is screened and apportioned no fee, and the firm provides notice to the appropriate tribunal. Rule1.12 does not, however, preclude the Assistant Attorney General from serving as a hearing officer when no other lawyer in the Attorney General's office will represent either party before that Assistant Attorney General when acting as a hearing officer. An Assistant Attorney General's employment with the Attorney General's office does not, by itself and without personal involvement in the matter as an Assistant Attorney General on behalf of the Attorney General's Office, violate Rule1.12.

¶ 7 The word "lawyer" in subparagraph (a) of Rule1.12 applies only to an individual attorney and not his law firm. This is clear from subparagraph (c), which permits a law firm to undertake representation of a party involved in a matter in which an Assistant Attorney General served as an adjudicative officer provided he is screened and apportioned no part of the fee. Under Rule1.12, the conflict of interest is not necessarily imputed to an entire law firm.

¶ 8 Our analysis and conclusions are consistent with accepted authority. Official commentary on Model Rule1.12 summarizes the intent of the rule: "A lawyer who has served as an adjudicative officer or judicial clerk may not represent anyone in connection with a matter in which the lawyer personally and substantially participated." (fn5) The import of that statement, as the comment clarifies, is that disqualification under the Rules of Professional Conduct is required only if there is substantial and personal conflict in the same matter. (fn6)

¶ 9 Likewise, our prior opinions on similar subjects follow the same logic. In Opinion 95-02A, (fn7) we held that a lawyer may represent criminal defendants in the same judicial district in which a law partner sits as a justice court judge, provided the lawyer does not appear before his partner. In our Opinion 142, we stated that "In these circumstances [e.g., when the Attorney General's offices is representing various state agencies], the conflict of interest rules apply only on an attorney-specific basis, and conflicts in the Office of the Utah Attorney General should not be imputed to all attorneys in that office." (fn8)

¶ 10 Quoting ABA Formal Opinion 242, we noted in

Opinion No. 24, (fn9) "One who assumes to act as a judge on one day and as an advocate the next in the same judicial system is confronted with inherent difficulties that ought to be avoided and deprecates the employment of such a system." Notwithstanding the broader ethical implications of this statement, Opinion No. 24 concluded there was no "disqualification [under applicable Utah rules] in your serving as pro-tem judge for misdemeanor matters in County B by reason of your full-time employment as a criminal-felony deputy county attorney in County A." (fn10) The essence of these opinions is that the Utah Rules of Professional Conduct do not preclude a lawyer from simultaneously serving in potentially incompatible roles, for instance as an adjudicator and an advocate, provided the precise matter at issue is not the same and the likelihood of conflicting loyalties is not direct and substantial.

Footnotes

1. There is apparently no shortage of qualified hearing officers on the roster, many of whom are not government lawyers, and who would, presumably, not be objectionable to anyone.

2. The IDEA is codified at 20 U.S.C. §§ 1400 et seq. The IDEA requires school districts to provide a free appropriate public education and related services to students with disabilities. Anyone alleging a violation of IDEA must exhaust administrative remedies before filing a complaint in federal court. IDEA, its implementing regulations, and state rules provide for an administrative hearing before an impartial and unbiased hearing officer. The decision of the hearing officer is appealable to either state or federal court. Hearing officers by statute and regulation are limited to hearing complaints relating to the identification, evaluation, and educational placement of a child with a disability, or the provision of a free appropriate public education to the child.

3. We also received a companion request for an opinion on the same set of facts and circumstances from the school district that was the respondent in the proceeding that gave rise to the original request for an ethics opinion. The two requests were consolidated by the Committee, and this Opinion resolves both requests. The Committee also acknowledges receipt and consideration of filings submitted by counsel for the child who was the petitioner in that hearing.

4. All three participants in the IDEA proceeding agree that Rule 1.12 is the key to the analysis: Former judge or arbitrator. (a) . . . [A] lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after consultation. ... (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: (1) The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) Written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this Rule. Utah Rules of Professional Conduct1.12 (2002).

5. ABA Comm. on Evaluation of Professional Standards, Ann. Model Rules of Professional Conduct, 189 (4th ed. 1999).

6. See, e.g. , Mississippi Comm'n on Judicial Performance v. Atkinson, 645 So. 2d 1331 (Miss. 1994) (setting bail for accused while acting as municipal judge and thereafter seeking to have bail reduced while acting as practicing lawyer representing accused amount to conduct prejudicial to administration of justice, warranting public sanction).

7. Utah Ethics Adv. Op. 95-02A, 1996 WL 73352 (Utah St. Bar). Utah ethics opinions are also available on the Utah State Bar website at: http://www.utahbar.org/opinions/index.html.

8. Utah Ethics Adv. Op. 142, 1994 WL 579850 (Utah St. Bar).

9. Utah Ethics Adv. Op. 24 (1976 Utah St. Bar).

10. Opinion No. 24 was issued when the Utah Code of Professional Responsibility governed attorneys' behavior. The principle is the same under the Utah Rules of Professional Conduct. Rules Cited: 1.12