Can a lawyer who serves as a part-time state hearing officer also represent private clients in matters before that same agency?

Plain-English summary

The committee addressed an attorney whose name appears on the executive secretary of the Supreme Court's list of qualified part-time hearing officers under the Administrative Process Act, and who also represents private clients. It resolved eight questions. Mere appearance on the list does not make the attorney a servant of every agency that may draw from it; he serves only the agency that actually employs him. He may represent clients before a State Agency Regulation Board (SARB) where he is a part-time hearing officer, provided the subject matter of the client's case is substantially unrelated to matters under his consideration as a hearing officer, and that holding does not change where an agency has multiple regulatory boards.

The committee distinguished current versus past service. It is improper to represent a client against a state agency the attorney currently serves as a hearing officer, but not improper where he served only in the past, provided his knowledge of confidential information does not disqualify him. He may advise clients on matters within the agency's jurisdiction even without appearing, so long as confidential information learned as a hearing officer, or matters substantially related to those under his consideration, are not used. He may take on a future-client conflict (clients who could later have agency matters) without impropriety, and may hear an Attorney General's case while representing a client before a SARB in a substantially unrelated matter prosecuted by that office. If the attorney is disqualified, the members of his law firm are also disqualified. The committee affirmed LE Op. 632 and LE Op. 617 and superseded LE Op. 583 and LE Op. 549 "for clarity and not for substance."

Currency note

This opinion was issued in 1987, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note records that current Rule 1.11 governs former government lawyers and judges and recognizes the use of ethics screens to avoid imputed disqualification in some situations; an editor's note cross-references LE Op. 883 and LE Op. 987. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Can a part-time state hearing officer represent private clients before the same board?

A: Under this 1987 opinion, yes, but only where the subject matter of the client's case is substantially unrelated to matters the attorney considers as a hearing officer for that board.

Q: May the attorney sue or oppose an agency he serves as a hearing officer?

A: Not while he currently serves that agency. The committee found it not improper to oppose an agency he served only in the past, provided his knowledge of confidential information does not disqualify him.

Q: If the hearing officer is disqualified, is his firm disqualified too?

A: Yes. The committee concluded that when the attorney is disqualified because of confidentiality or a substantially related matter under consideration, the members of his law firm are also disqualified.

Q: Does appearing on the qualified-officer list bind the attorney to every agency?

A: No. The committee opined the attorney serves only the agency that actually employs him as a part-time hearing officer; listing alone does not create service to all agencies that may draw from the list.

Background and rules framework

The opinion arises under the Administrative Process Act and the executive secretary's authority to regulate hearing officers, and applies the former Code's DR 8-101 (action as a public official) and DR 9-101 (avoiding even the appearance of impropriety in matters where the lawyer acted in a judicial capacity or had substantial responsibility as a public employee). The committee note maps the question onto current Virginia Rule 1.11 on former government lawyers and judges and the use of ethics screens, the subject covered by ABA Model Rules 1.11 and 1.12.

Citations and references

Rules of Professional Conduct:

• DR 8-101 (action as a public official) (former Code)
• DR 9-101 (avoiding the appearance of impropriety; judicial capacity; substantial responsibility as a public employee) (former Code)
• Virginia Rule 1.11 / ABA Model Rules 1.11, 1.12 (former government lawyers, judges, and adjudicative officers; ethics screens)

Other opinions cited:

• LE Op. 632 (affirmed): hearing officer as advocate for client
• LE Op. 617 (affirmed): appearance of impropriety, hearing officers in the same firm
• LE Op. 583; LE Op. 549 (superseded by LEO 847 for clarity, not substance)
• LE Op. 883; LE Op. 987 (editor's note cross-references)

See also

• VA LEO 987: A Lawyer on a Facility's Human Rights Committee
• VA LEO 1020: Assistant Commonwealth's Attorney in Related Civil Cases
• VA LEO 860: A Lawyer's Spouse as Opposing Counsel

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0847.pdf

Original opinion text

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

LEGAL ETHICS OPINION 847

HEARING OFFICERS.

Pursuant to the Administrative Process Act (APA), Chapter 1.1:1, Article 3.1 of Title 9
(Section 9-6.14:14.1) of the Code of Virginia, the executive secretary of the Supreme
Court is given authority to regulate hearing officers and the hearing officer system to be
used by agencies of the Commonwealth in conducting hearings under the act. Section 9-
6.14:14.1(C) provides that a hearing officer shall disqualify himself and withdraw from
any case in which he cannot accord a fair and impartial hearing or “when required by the
applicable rules governing the practice of law in the Commonwealth.”

To fulfill its obligation under the APA, the executive secretary of the Supreme Court
maintains a list of qualified attorneys from which part-time hearing officers are selected.

REFERENCES

Canon 8. A Lawyer Should Assist in Improving the Legal System.

DISCIPLINARY RULES.

DR:8-101. Action as a Public Official

(A) A lawyer who holds public office shall not:

(1) Use his public position to obtain, or attempt to obtain, a special advantage in
legislative matters for himself or for a client under circumstances where he knows or it is
obvious that such action is not in the public interest.

(2) Use his public position to influence, or attempt to influence, a tribunal to act in
favor of himself or of a client.

(3) Accept anything of value from any person when the lawyer knows or it is obvious
that the offer is for the purpose of influencing his action as a public official.

Canon 9. A Lawyer Should Avoid Even the Appearance of Professional Impropriety.

DISCIPLINARY RULES

DR:9-101. Avoiding Even the Appearance of Impropriety

(A) A lawyer shall not accept private employment in a matter upon the merits of which
he has acted in a judicial capacity.

(B) A lawyer shall not accept private employment in a matter in which he had
substantial responsibility while he was a public employee.

(C) A lawyer shall not state or imply that he is able to influence improperly or upon
irrelevant grounds any tribunal legislative body, or public official.

ETHICAL INQUIRIES

ISSUE # 1

If an attorney's name appears on the approved part-time hearing officer list maintained
by the executive secretary of the Supreme Court, does this appearance on the list
constitute service to all agencies which may draw hearing officers from the list?

ANSWER TO ISSUE #1

No. Even though an attorney's name appears on the approved list, he serves only when
he is actually employed as a part-time hearing officer by a given agency and such service
is only to that agency.

ISSUE #2

If an attorney serves as a part-time hearing officer for a State Agency Regulation Board
(SARB), can the attorney represent clients in matters before the SARB so long as the
legal or factual issues (hereafter subject matter) of the client's case are substantially
unrelated to those under consideration by the attorney in his capacity as a part-time
hearing officer?

ANSWER TO ISSUE #2

Yes. It is not improper for an attorney to represent clients before a SARB where he is
also a part-time hearing officer, provided that the subject matter of his client's case is
substantially unrelated to those under his consideration as a part-time hearing officer for
the SARB. (See also LE Op. 632.)

ISSUE #3

Would the committee answer be different in situations where a state agency has
multiple regulatory boards?

ANSWER TO ISSUE #3

No. A state agency with multiple regulatory boards should not be distinguished from a
state agency with only one regulatory board.

ISSUE #4

Can an attorney represent a client in a law suit or administrative hearing against the
agency which he currently serves or has served as a part-time hearing officer?

ANSWER TO ISSUE #4

(A) It would be improper for an attorney to represent a client either in a law suit or
administrative hearing against a state agency where attorney is currently serving as a
part-time hearing officer.

(B) However, it would not be improper for an attorney to represent a client against a
state agency in a law suit or administrative hearing where the attorney has in the past, but
does not presently serve as a part-time hearing officer, provided the attorney's knowledge
of confidential information does not disqualify him.

ISSUE #5

Can an attorney who serves as part-time hearing officer for a SARB thereafter advise
clients regarding matters under the agency's jurisdiction even though the attorney does
not make an appearance on behalf of the client before the SARB?

ANSWER TO ISSUE #5

Yes, it is not improper for an attorney to advise clients even though he will not be
making an appearance regarding matters within the jurisdiction of the SARB where the
attorney is also a part-time hearing officer, provided any confidential information the
attorney learns in his position as part-time hearing officer or matters under his
consideration which are substantially related to those of his client, cannot be used.

ISSUE #6

Does an attorney have a conflict if he decides to become a part-time hearing officer and
is currently representing clients who do not have matters currently before a SARB but
could have matters before a SARB in the future?

ANSWER TO ISSUE #6

No. It would not be improper for an attorney to become a part-time hearing officer even
though he represents clients who do not have matters pending before a SARB even
though they could have matters before the SARB in the future.

ISSUE #7

If an attorney is disqualified from representing a client before the SARB where he is
also a part-time hearing officer, are the members of his law firm also disqualified?

ANSWER TO ISSUE #7

Yes. If an attorney is disqualified from representing a client because of circumstances
involving confidentiality or having a substantially related matter under consideration,
then the members of his law firm would also be disqualified. (See also LE Op. 617.)

ISSUE #8

Is it ethical for an attorney in his capacity as a part-time hearing officer to hear a case
presented by the Attorney General's office when that same attorney is representing a
client before a SARB which is being prosecuted by the Attorney General's office?

ANSWER TO ISSUE #8

Yes. It would not be improper for an attorney to simultaneously hear a case presented
by the Attorney General's office and represent a client before a SARB in a substantially
unrelated matter being prosecuted by the Attorney General's office.

PRIOR LEGAL ETHICS OPINIONS

LE Op. 632 as stated below is hereby affirmed.

Hearing Officer-Advocate for Client.

It is improper for an attorney on the list of state agency hearing officers maintained by
the executive secretary of the Supreme Court of Virginia to represent a client before a
state agency in a proceeding which involves the same subject matter as that which the
attorney considers when serving as a hearing officer for said state agency. Committee
Opinion, December 3, 1984.

LE Op. 617 as stated below is hereby affirmed.

Appearance of Impropriety-Hearing Officers.

It is improper for an attorney representing a party in a special education due process
hearing to appear in said hearing when the presiding hearing officer is a member of the
same law firm as the representative attorney.

It is not improper for an attorney representing a party in a special education due process
hearing to appear in said hearing when the presiding hearing officer is not a member of
the same law firm as the representative attorney although a member of the said attorney's
firm presides as a hearing officer in other such cases.

It is improper for an attorney to represent a school division in proceedings in which the
hearing officer is a member of said attorney's law firm.

It is not improper for an attorney to represent a school division in proceedings when a
member of said attorney's firm who serves as a hearing officer in similar proceedings had
no contact with the instant case. Committee Opinion, October 24, 1984.

LE Op. 583 as stated below is hereby superseded by LE Op. 847. This is for clarity and
not for substance.

Hearing Officer-Appearance of Impropriety.

It is improper for an attorney who serves as a hearing officer in special education due
process proceedings to appear as an advocate in such hearings or appellate proceedings in
other jurisdictions. Committee Opinion, May 31, 1984.

LE Op. 549 as stated below is hereby superseded by LE Op. 847. This opinion is correct
in very limited and special facts. We supersede for clarity and not for substance.

Appearance of Impropriety — Part-Time Hearing Officer.

It is improper for an attorney who is a part-time Virginia Employment Commission
appeals examiner to represent private clients in cases involving the Virginia Employment
Commission, even if the private cases are to take place in a geographical location other
than where the attorney functions as a hearing officer. Committee Opinion, March 1,
1984.

Committee Opinion
April 1, 1987

Legal Ethics Committee Notes. – Rule 1.11 governs former government lawyers and
judges, and recognizes the efficacy of “ethics screens” to avoid imputed disqualifications
in some situations.

Editor’s Note. – See also L E Op. No. 883, 987.