Can a lawyer employed as a Public Service Commission staff attorney also take private work as a consultant or expert witness in utility rate cases for outside consumer groups?

Plain-English summary

The Committee considered whether a publicly employed Public Service Commission (P.S.C.) staff attorney could concurrently accept private work as a consultant in rate-making and other utility cases for out-of-state consumer groups. The staff attorney represented the P.S.C. before hearing examiners and on appeal, had served as lead counsel in West Virginia hearings involving Utility X (part of an integrated nationwide system of similarly structured companies), and through that work had become knowledgeable about Utility X's finances, operations, and management. The P.S.C. has broad power to compel utilities to disclose detailed information, and the staff attorney had access to such information.

The factual concern was concrete: consumer groups hired the staff attorney as a consultant and expert witness in utility cases involving counterparts of Utility X in New York, Texas, and Washington, D.C. In one instance, the staff attorney prepared a case and cross-examined witnesses in a West Virginia P.S.C. hearing in which Utility X was a party, then, acting privately, prepared the cross-examination of witnesses in a hearing involving Utility X's Washington, D.C., counterpart, where several of the same witnesses testified again to similar facts.

The Committee framed the question around the interests the P.S.C. must protect. Quoting W. Va. Code § 24-1-1(a) and (b), it described the Commission's statutory duty to enforce and regulate utility practices, services, and rates, and to appraise and balance the interests of current and future utility customers, the state's economy, and the regulated utilities. Against that balancing role, private consulting work touching the same industry created a conflict and the appearance of impropriety.

The Committee concluded that, to avoid conflicts and the appearance of impropriety, the staff attorney should cease accepting any private employment related to utilities and utility regulation as long as the attorney is employed by the P.S.C., so that the attorney can better protect and remain responsive to the public and utility interests the P.S.C. must fairly evaluate.

Currency note

This opinion was issued in 1981, before West Virginia replaced its Code of Professional Responsibility with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. The cited Public Service Commission statutes have also been amended over time. 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: Could the PSC staff attorney moonlight as a utility-case consultant for consumer groups in other states?

A: No. The opinion concluded that the staff attorney should cease accepting any private employment related to utilities and utility regulation while employed by the P.S.C., to avoid conflicts and the appearance of impropriety.

Q: Why did the staff attorney's access to information matter?

A: The opinion noted that the P.S.C. can compel utilities to disclose detailed information about their methods and practices, that the staff attorney had access to such information, and that the attorney had become knowledgeable about Utility X, whose out-of-state counterparts were the subject of the private consulting.

Q: What interests was the staff attorney expected to protect?

A: The opinion quoted W. Va. Code § 24-1-1, under which the P.S.C. must regulate utilities in the public interest and balance the interests of utility customers, the state's economy, and the regulated utilities, a role the Committee found inconsistent with simultaneous private utility-related work.

Background and rules framework

The opinion analyzed the question as one of conflict of interest and the appearance of impropriety for a government lawyer, without citing a specific numbered Disciplinary Rule. It grounded the conflict in the statutory mission of the Public Service Commission under W. Va. Code § 24-1-1(a) and (b), which requires the Commission to balance the competing interests of the public, the state's economy, and the utilities it regulates.

Citations and references

Statutes:

• W. Va. Code § 24-1-1(a), (b) (1980 Replacement Volume) (legislative purpose and policy of the Public Service Commission; duty to regulate utilities and balance public, economic, and utility interests)

See also

• WVSB Ethics Op. 81-10: Firm conflict in a county jail-conditions suit
• WVSB Ethics Op. 83-4: Prosecutor representing a claimant before the Court of Claims
• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7ea57ce59e5a61382b.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

LEGAL ETHICS INQUIRY 81-4

(October 2, 1981)

PRIVATE EMPLOYMENT OF STAFF ATTORNEY OF PUBLIC SERVICE COMMISSION

The Committee on Legal Ethics has received a request for a formal opinion concerning a publicly-employed P.S.C. Staff Attorney concurrently accepting private employment as a consultant in rate-making and other utility cases to out-of-state consumer groups. The facts are as follows:

The P.S.C. Staff Attorney represents the P.S.C. before hearing examiners and represents the P.S.C. when cases are appealed. The lawyer has acted as lead counsel for the P.S.C. in several hearings involving Utility X in West Virginia, which is part of an integrated nationwide system of companies in which the individual utility companies are similarly structured, operate under standardized procedures and often have management employees who are responsible for several separate companies in different states in the same geographic area. The duties as Staff Attorney include investigating and preparing cases, cross-examining witnesses and designing rate structures. As a result of the lawyer's P.S.C. employment, this Staff Attorney has become quite knowledgeable about Utility X's finances, operations and management. The P.S.C. has broad and extensive power to investigate and order a utility to divulge detailed information pertaining to the methods and practices of the utility. The Staff Attorney has access to any such information received by the P.S.C. from the utilities under the Commission's broad grant of authority. Consumer groups have hired this Staff Attorney to act as a consultant and expert witness in utility cases involving the counterparts of Utility X in New York, Texas and Washington, D.C. In one particular instance, the Staff Attorney prepared a case and cross-examined witnesses in a hearing before the West Virginia P.S.C. in which Utility X was a party. Subsequently, the Staff Attorney, acting in his private capacity, prepared the cross-examination of witnesses in a hearing which involved Utility X's Washington, D.C., counterpart before the District of Columbia's utility regulatory body, where several of the same witnesses who appeared in the prior West Virginia hearing testified again to similar facts.

Before discussing the ethical problem inherent in the situation just described, it is necessary to understand the interests the P.S.C. must protect. With this understanding, a determination about any possible conflict between the interests protected by the public employment and the interests pursued by the private employment can be made.

The P.S.C. must evaluate and balance the interests of the public and the utilities. Sections 24-1-1(a) and (b) of the West Virginia Code (1980 Replacement Volume), which describes the legislative purpose and policy for the P.S.C., reads:

(a) It is the purpose and policy of the legislature in enacting this chapter to confer upon the public service commission of this State the authority and duty to enforce and regulate the practices, services and rates of public utilities in order to:

(1) Ensure fair and prompt regulation of public utilities in the interest of the using and consuming public;

(2) Provide the availability of adequate, economical and reliable utility services throughout the State;

(3) Encourage the well-planned development of utility resources in a manner consistent with state needs and in ways consistent with the productive use of the State's energy resources, such as coal;

(4) Ensure that rates and charges for utility services are just, reasonable, applied without unjust discrimination or preference and based primarily on the costs of providing these services; and

(5) Encourage energy conservation and the effective and efficient management of regulated utility enterprises.

(b) The legislature creates the public service commission to exercise the legislative powers delegated to it. The public service commission is charged with the responsibility for appraising and balancing the interests of current and future utility service customers, the general interests of the State's economy and the interests of the utilities subject to its jurisdiction in its deliberations and decisions.

To avoid any conflicts and the appearance of impropriety, this Staff Attorney should cease accepting any private employment that is related to utilities and utility regulation as long as the attorney is employed by the P.S.C. By avoiding any such private employment, the Staff Attorney can better protect and be responsive to the public and the utility interests that must be fairly evaluated by the P.S.C.