August 10, 1981
A former administrative law judge with the Department of Education is not prohibited from representing a client in an appeal to the Tenure Commission under circumstances where the lawyer did not investigate, deliberate upon the merits of or otherwise have any substantial responsibility for the outcome of a case pending before the Commission during the lawyer's employment as a hearings officer.
References: DR 9-101(A) and (B).
The Michigan Department of Education employed you as an Administrative Law Examiner assigned to the office of Tenure, Negotiations and Retirement. During that period of time you served as a hearings officer for the State Tenure Commission with responsibility for processing tenure appeals assigned to you by the Commission. Your duties included (1) conducting the prehearing conference, (2) sitting as presiding officer during hearings; and (3) the preparation of proposed decisions and orders for commission approval and adoption.
In April you were approached by your present employer concerning your interest in leaving government service and entering private practice. The firm with which you are currently employed represents a number of party litigants before the commission. In May you submitted your resignation to the Department of Education effective in June. All cases assigned to you involving your current employer were immediately reassigned to another administrative law examiner and you continued to prepare proposed decisions, for submission to the commission, in pending appeals in matters in which the firm was not involved to the date of your departure. Since June, you have been associated with your present firm in the private practice of law.
One of the cases assigned to you by the commission during your term of government service involved a schoolteacher who appealed his discharge of employment for the school system. The appeal was filed with the commission in March. This appeal was initially assigned to you and your activities concerning the school teacher's appeal to the Tenure Commission were limited to a review of the pleadings filed in that action, namely the Petition and Answer.
Since you have been associated with your current employer, you have been assigned the responsibility for handling the schoolteacher's appeal before the Tenure Commission. You representation of the schoolteacher consists of a conference with the client and arranging depositions. You wish to know the answers to the following questions:
- Would my continued efforts on behalf of this client violate the Canons of Professional Responsibility?
- Would further participation by my employer violate the Canons of professional Responsibility?
- Do the Canons or Professional Responsibility require that I defer representing litigants before the Tenure Commission and, if so, for what length of time?
DR 9-101(A) and (B) state:
"(A) A lawyer shall not accept private employment in a matter upon the merits of which he or she has acted in a judicial capacity.
"(B) A lawyer shall not accept private employment in a matter in which he or she had substantial responsibility while he/she was a public employee."
DR 9-101(A) prohibits a lawyer from accepting private employment in a matter upon the merits of which he or she has acted in a judicial capacity. DR 9-101(A) does not define the key works "matter," "merits," and "judicial capacity." Ethical consideration 9-3 implies that the same definitional standards apply to both DR 9-101(A) with respect to lawyers leaving "judicial office" and to DR 9-101(B) that apply to lawyers leaving "other public employment."
In ABA Formal Opinion 342, the American Bar Association Ethics Committee defined a "matter" as used in DR 9-101(B), as "a discreet isolatable transaction or set of transactions between identifiable parties." Clearly, the "matter" in question involves the same identifiable parties namely the school system and the teacher and, further, concerns a "isolatable transaction or set of transactions" being appealed by the teacher as a result of an earlier adverse decision.
The term "judicial capacity" is not limited in its application solely to the judicial branch of the government. While administrative law examiners or hearing officers are generally understood to be employees of a particular administrative agency, those individuals serve in a quasi-judicial, if not judicial capacity, in that they consistently are called upon to decide issues of fact and rule on questions of law advanced by opposing parties. In Powers v. State Department of Social Welfare, 208 Kan. 605, 493 P2d 590, 600-601 (1972), the Court construed the term "judicial capacity" to include administrative positions. In Powers, the court ruled that it was highly improper for the State Department of Social Welfare, the defendant, to assign as it advocate a lawyer who had served as a referee at an earlier hearing on the same matter. The court concluded that an administrative referee was clearly invested with judicial powers and that therefore he or she must be disqualified under DR 9-101(A) from subsequently serving as an advocate in the same matter.
The term "merits" has reference to the legal rights of the parties and involves a substantial undertaking upon the inherent justice of the opposing factual and legal positions of the parties as demonstrated by a substantial involvement in the issues raised in the particular case. In this context, the term "merits" is not dissimilar to the "substantial responsibility" standard of DR 9-101(B) which prohibits a lawyer from accepting private employment in a matter in which he/she had "substantial responsibility" while a public employee. The term "substantial responsibility" has been interpreted to mean that "the attorney had been personally involved to an important, material degree," in investigations about or deliberations on the transactions and facts in question during his/her tenure as a governmental employee. Your participation in the subject action does not rise to the level of being personally involved to an important material degree. To reiterate, the basis upon which this finding is made is that your sole connection with this appeal was limited to a review of the pleadings filed and that you did not participate in any investigation or deliberation on the merits of the transaction nor did you undertake to prepare a decision on the merits of the claim for adoption by the Commission.
Accordingly, it is the opinion of the Committee that you may continue to represent the client on appeal to the Tenure Commission. Having found that you would not violate the Canons of Professional Responsibility by continued representation of the client, it is not necessary to answer question two relating to the participation of your employer in this matter.
Lastly, the Code of Professional Responsibility generally does not restrict you from representing litigants before the Tenure Commission upon entering private employment provided you do not act as an advocate in a case upon the merits of which you investigated or deliberated while you were an administrative law examiner, or in any case pending before the administrative agency in which you had any "substantial responsibility" for formulating an opinion or promoting the interests of the Department of Education.