RI-110

December 23, 1991

SYLLABUS

    A lawyer who serves as a full-time administrative hearing officer is not per se prohibited by ethics rules from engaging in the private practice of law.

    A lawyer who conducts a private law practice while serving as an administrative hearing officer may not list the public position on the law firm letterhead.

    References: MRPC 1.7(b), 1.11(a) and (c), 1.16, 7.1, 7.5(c), 7.5(d); MCJC 5F; RI-11, RI-45, RI-100; J-2, J-4; JI-34; C-164; CI-351, CI-633.

TEXT

A lawyer inquires concerning the "winding up" of law practice upon assuming a full-time position as an administrative hearing officer. The lawyer asks (1) may the lawyer's name remain on the letterhead of the lawyer's former firm, or in the alternative, may the lawyer's name appear as "of counsel," and (2) may the lawyer remain as counsel of record to finish cases that are not in conflict with the duties of the lawyer's new position?

A lawyer who has been appointed/elected to the position of judge, must cease the practice of law, MCJC 5F, J-2, and do so in a fashion that safeguards the interests of clients, J-4, RI-100. Judges must also ensure that their names are removed from firm names, firm stationery, and firm signs, MRPC 7.1, 7.5, appearances must be withdrawn or substituted pursuant to MRPC 1.16, and arrangements must be made to transfer cases to successor counsel. Judges may not continue to represent or counsel clients after assuming the bench.

There is no similar prohibition for lawyers leaving private practice for other types of public employment. Although government administrative hearing officers perform adjudicative functions, ethics opinions have uniformly held that the lawyer ethics rules, not judicial ethics rules, apply to their conduct. RI-11, CI-351, CI-633.

The lawyer desires to remain counsel of record to complete certain pending cases while being employed full-time as an administrative hearing officer. The administrative hearing officer's continued private practice of law may be prohibited or discouraged by the lawyer's new governmental employer, and the lawyer is well advised to ascertain the policies and rules of the new employer toward those activities.

There is no per se ethics prohibition regarding the lawyer's doing so, as long as the continuing practice does not create conflicts of interest, breaches of confidentiality, or other ethics violations. Under MRPC 1.11(a), a lawyer may not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the government agency consents after consultation. Under MRPC 1.11(c), a lawyer serving as a public officer or employee may not participate in a matter in which the lawyer participated personally and substantially in private practice. For a discussion of "personally and substantially related" matters, see RI-11 and JI-34. Under MRPC 1.7(b), a lawyer may not represent a client if the representation would be materially limited by the lawyer's responsibilities to a third person, such as the government agency employer, or the lawyer's own interests. For example, if a member of the firm of opposing counsel in a private practice matter appears before the administrative hearing officer in an unrelated matter, it could be argued that the decision rendered in the administrative matter is tainted because of the hearing officer's personal stake in the private practice matter. The propriety of continuing to represent private clients while serving as a full-time administrative hearing officer must be weighed against those rules on a case by case basis.

With reference to whether or not the lawyer, after gaining governmental employment may continue to use the lawyer's name upon a firm letterhead, MRPC 7.5(c) states:

    "The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm."

Two previous decisions have touched upon this issue. C-164, interpreting then Canon 33 mandating that there be no false or misleading use of a trade name, held that when a lawyer takes government office and subsequently elects to resign from membership in a law firm, continued use of the lawyer's name on the letterhead is not permitted. RI-45, relying on MRPC 7.1 prohibiting a lawyer from making any public communication which is "false, fraudulent, misleading or deceptive," held that a lawyer may state and imply practice in partnership or association with other lawyers only when that is in fact the case, MRPC 7.5(d).

A "full-time" governmental employee may not "state and imply" that the lawyer is a partner or firm member, or "of counsel" with the firm when the lawyer does not in fact render services to that firm on a regular and ongoing basis.

In the event the lawyer obtains permission from the lawyer's prospective employer to complete pending cases while employed by the state, the lawyer may use personalized letterhead, as long as no reference is made on the letterhead to the lawyer's public responsibilities or public position. The inclusion of the credential of "administrative hearing officer" on the private practice letterhead arguably creates "an unjustified expectation of the results that may be achieved" in violation of MRPC 7.1(b). Further, the lawyer may not imply that the public business of administrative hearing officer is being conducted from the private law practice.