June 3, 1993
A lawyer member of an administrative board who after the close of proofs becomes aware that additional material has been placed in a case file, must disclose that material to the appropriate authorities and to all interested parties. If the lawyer is unable to decide the case impartially or irremediable prejudice has occurred because of the material, the lawyer is disqualified from participation in that matter.
References: MCJC 3A(4); MRPC 3.5(b), 8.4; RI-55; MCR 2.003(B); McElhanon v Hing, 728 P2d 273 (Ariz, 1986); State v Leslie, 666 P2d 1072 (Ariz, 1983); State v Perkins, 686 P2d 1248 (Ariz, 1984); United States v Martinez, 667 F2d 886 (CA 10, 1981).
A lawyer serves on an administrative board currently comprised of four lawyer members and a nonlawyer chairperson. Hearing files normally circulate among board members for consideration and vote, then a board member from the prevailing side is assigned to draft the opinion. On the case giving rise to this inquiry, a case file was circulated among the board members for vote. When the chairperson returned the file to the lawyer for drafting, the file contained material on the substance of the matter which was not present when the case file was originally circulated for vote, and which shows that the matter has been brought to the attention of a high government official.
The Committee has been asked whether the lawyer who has been assigned drafting responsibility must be disqualified because the lawyer has seen material that was not part of the original case file or for any other reason, and whether the chairperson would be disqualified from participation.
We answer the second question first. The Rules of Professional Conduct govern the conduct of lawyers. Since the chairperson is a nonlawyer, the propriety of the chairperson's conduct is outside the jurisdiction of this Committee.
Lawyers are subject to the Michigan Rules of Professional Conduct (MRPC) at all times, whether functioning in a legal or nonlegal capacity. Where nonlawyers may appear in a representational capacity in administrative proceedings, RI-55 opined that when such representation is afforded by a person who is in fact a lawyer, it must be effectuated without violating the Rules of Professional Conduct. "Legal matter" is defined in RI-55 as including "any business performed by a lawyer on behalf of a client, the principal basis for which is law, statutory, common or constitutional . . . . A lawyer does not cease to become a lawyer merely because a nonlawyer could perform the same service." Therefore, even if nonlawyers may serve on the administrative board, if a lawyer serves, the lawyer must effectuate that service without violating ethics rules.
While serving on the administrative board the lawyer is serving in a quasi-judicial capacity. MCR 2.003(B) requires a judge to recuse if the judge cannot impartially hear a case. Both the Michigan Rules of Professional Conduct at MRPC 3.5(b) and the Code of Judicial Conduct at MCJC 3A(4) prohibit ex parte contacts with an adjudicator. MCJC 3A(4) prohibits a judge from initiating, considering or permitting ex parte communications concerning a pending matter. The danger of ex parte communications is discussed in Judicial Conduct and Ethics, Shaman Lubet & Alfini, Michie Company, pp 149-150:
"ex parte communications deprive the absent party of the right to respond and be heard. They suggest bias or partiality on the part of the judge. ex parte conversations or correspondence can be misleading; the information given to the judge 'may be incomplete or inaccurate, the problem can be incorrectly stated.' At the very least, participation in ex parte communications will expose the judge to one sided argumentation, which carries the attendant risk of an erroneous ruling on the law or facts. At worst, ex parte communications is an invitation to improper influence if not outright corruption."
Adjudicative officers are required to decide cases based upon the evidence in the record, and not be influenced by factors or information outside the proceedings. Remedies for improper ex parte communications may range from prompt disclosure of the ex parte communication to all affected parties [State v Perkins, 686 P2d 1248 (Ariz, 1984)], or allowing the excluded party the opportunity to respond [McElhanon v Hing, 728 P2d 273 (Ariz, 1986)], to mistrial [United States v Martinez, 667 F2d 886 (CA 10, 1981)] or disqualification [State v Leslie, 666 P2d 1072 (Ariz, 1983)]. Mere receipt of or knowledge of the ex parte communication without more, does not require recusal. Prompt disclosure to all affected parties may avoid the need for other corrective action. Only if irremediable prejudice has occurred or the lawyer determines he or she cannot decide the matter impartially, is recusal necessary.
MRPC 8.4 states:
"It is professional misconduct for a lawyer to:
"(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
"(b) engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer;
"(c) engage in conduct that is prejudicial to the administration of justice;
"(d) state or imply an ability to influence improperly a government agency or official; or
"(e) knowingly assist a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct or other law."
It would be conduct prejudicial to the administration of justice for the lawyer drafter to fail to disclose the existence of the material.
The facts provide no information regarding the source of the new information in the case file, nor is it clear what impact the new information has on the merits of the case pending before the board or on the votes of particular members. The facts indicate that the lawyer's vote and the lawyer's assignment as drafter on the case could not have been affected by the material. The lawyer member brought the existence of the material to the attention of the appropriate authorities. It would appear, therefore, that since the material has been disclosed, ethics rules do not require the lawyer to recuse unless the lawyer believes he or she cannot impartially hear the case.