88-04: Avoiding Appearance of Impropriety

3/1988

Ethical propriety of an administrative law judge giving advice or consultations in a continuing action in a multi-jurisdictional case in which he previously presided over in another jurisdiction.

FACTS

An Arizona law firm, involved in a multi-jurisdictional case, wishes to engage an Administrative Law Judge (an attorney) who previously presided over a proceeding dealing with the case in another jurisdiction. These administrative proceedings arise out of a utility property that is jointly owned by entities in various jurisdictions. The Administrative Law Judge would participate as a "consultant" to the law firm by providing advice to counsel. The decision of the Administrative Law Judge in the earlier proceedings has not been approved or modified.

The foregoing facts are based on the written inquiry of the law firm wishing to hire the Administrative Law Judge as a consultant.

QUESTION

May an Arizona law firm hire an Administrative Law Judge as a "consultant" in a multi-jurisdictional case in which he has previously presided over a proceeding in another jurisdiction?

ETHICAL RULES INVOLVED

ER 1.12. Former Judge or Arbitrator.

(a)...a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after disclosure.

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See also, Code of Judicial Conduct (Rule 81, Rules of the Supreme Court):

Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him....

OPINION

The subject matter of this opinion was previously governed by Disciplinary Rule 9-101(A), and a similar question was presented in our Opinion No. 74-5.

In Opinion No. 74-5, the committee faced the problem of whether a judge could represent someone who had been a party in a case before his bench. The committee cited EC 9-3 and DR 9-101(A) in determining that the judge could not represent the party. The committee also cited the provisions of former Canon 36 and a statement from Henry S. Drinker's work on Legal Ethics:

"The purpose of the first provision is to preclude a judge from thereafter participating in litigation the merits of which he has passed on when a judge and thus taking advantage of the prestige which this would give to his present opinion and arguments; also that... the judge's decision might otherwise be influenced or thought to have been influenced by the hope of later being employed privately to uphold or to upset what he had done or decided . . ." (op. cit. pp. 130-131)

The law firm wishes to distinguish the instant situation from the situation ER 1.12 addresses. The written inquiry focuses on representation in a personal capacity. The Administrative Law Judge will be employed as a consultant rather than as the named representative. However, there is no indication that the Administrative Law Judge will not participate substantially in preparing the case. Therefore, for all intents and purposes, he will be a representative. He will be doing what a lawyer with his special skills, experience and background would do were he employed as an associate of the firm.

Apparently, there has been no contact between the law firm and the Administrative Law Judge as yet. However, we are of the opinion that the proposed arrangement would be improper.

The Comment to ER 1.12 provides some insight into the nature of the Administrative Law Judge's obligations:

“. . . The term 'adjudicative officer' includes such officials as judges pro tempore, referees, special masters, hearing officers, and other parajudicial officers, and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the Model Code of Judicial Conduct provide that a part-time judge.... may not 'act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto.'” (Emphasis added).

The Supreme Court of Arizona has alluded to the EP 1.12 prohibition barring a former judge or other adjudicative officer from representation when his former involvement was "substantial" and "personal". Security General Life Ins. v. Superior Court, 149 Ariz. 332, 334, 718 P.2d 985, 987 (1986). The threshold of involvement is relatively low. In the instant situation, the Administrative Law Judge has heard evidence and recommended a decision to a utility commission. Therefore, his involvement in the case can easily be characterized as "substantial” and "personal" and, therefore, prohibited by ER 1.12.

Additionally, a situation could arise wherein the Administrative Law Judge's impartiality might be questioned. For example, should the parties represented by the law firm requesting this arrangement prevail and thereafter the Administrative Law Judge becomes a consultant for the firm, his impartiality in the first proceeding might be challenged. This situation is the same as that which Canon 2 of the Code of Judicial Conduct attempts to avoid. In a situation like this, the mere appearance of impropriety or conflict should not be allowed to occur. The Arizona Court of Appeals has stated: “The State Bar of Arizona, through its Committee on Ethics, has stated that the mere appearance of a possible conflict is to be condemned." Corbin v. Broadman, 6 Ariz. App. 436, 439, 433 P.2d 289, 292 (App. 1967). Arguably, the mere presence of a former judge or adjudicative officer who had substantial responsibility in a former case, in whatever capacity, either as "consultant" or representative, may give rise to a presumption of impropriety or conflict.

We therefore conclude that, in this situation, whether the Administrative Law Judge is called a representative or a "consultant", it would not be appropriate to allow him to give advice to a party, either indirectly by being a "consultant", or directly by being a named representative, in a continuing action in which he presided as judge in a former proceeding.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.