An attorney employed as a hearing officer by a state agency may not negotiate for employment with law firms that have matters pending before her; attorney is advised to identify those firms with whom attorney will negotiate for employment, then disqualify herself from all matters currently or prospectively before her in which any client of the firm(s) has an interest or is a party, and refrain from viewing documents, being present during discussions or take part in any aspect of the decision in those matters.

FACTS

The inquiring attorney is presently employed as a hearing officer with a state agency. Her responsibilities as hearing officer are to: preside over hearings; make findings of fact; do legal research; and draft decisions for board approval.

The specialized nature of the matters submitted for hearing usually results in representation of litigants by attorneys from the same seven Arizona law firms. The inquiring attorney wants to enter private practice specializing in the same area of law which she confronts as a hearing officer. Accordingly, she anticipates that it will be difficult to avoid negotiating for employment with a law firm that does not have a case pending before the agency. She points out that it is the responsibility of the agency board to make the final decisions concerning matters that come before her. In view of that, she inquires as to the extent to which Ethical Rule 1.12(b) would apply to her search for employment.

QUESTION

May an attorney employed as a hearing officer by a state agency, with ethical propriety, negotiate for employment with law firms that concurrently have matters pending before her and/or the agency board?

ETHICAL RULE INVOLVED

E.R. 1.12. Former Judge or Arbitrator

*****

(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or arbitrator. ***

OPINION

According to E.R. 1.12(b), an attorney would be prohibited from negotiating for employment with any law firm representing a party in a matter in which the attorney-hearing officer is participating personally and substantially as an adjudicative officer. To determine the scope of E.R. 1.12(b), one must decide the meaning of the expressions "personally and substantially” and "adjudicative officer."

The Comment to E.R. 1.12(b) explains that the term "personally and substantially" does not apply to actions of a judge who was a member of a multi-member court and thereafter left judicial office to represent a client in a matter pending in the court, but in which the former judge did not participate. Nor does the term apply to actions of a former judge representing a client in a matter where the judge "had previously exercised remote or incidental administrative responsibility that did not affect the merits."

The comment also points out that the term "adjudicative officer" includes such officials as "hearing officers."

The logical implication of the cited language of the Comment requires that E.R. 1.12(b) be applied to a hearing officer whose responsibility it is to preside over hearings, make findings of fact, and draft decisions for board approval. Those responsibilities clearly affect the merits of the matter at issue and are not incidental administrative responsibilities.

Furthermore, the prohibition at issue in E.R. 1.12(b) is absolute because of the use of the words "shall not." Guidance as to the interpretation of the Ethical Rules is provided in the Preamble which states in pertinent part:

* * * Some of the rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the rules in which the lawyer has professional discretion. * * *

Recognizing that there is no provision in the prior Arizona Code of Professional Responsibility corresponding to E.R. 1.12(b), some insight into the purpose behind this Rule can be found in an examination of previous opinions of this Committee dealing with conflicts of interest. The reader is referred to our Opinions Nos. 75-27, 83-16, 87-17 and 87-21. For example, in Opinion No. 75-27, we stated:

A practicing attorney “must be scrupulously careful to avoid conduct whereby he utilizes or appears to utilize his present or former official position as a hearing officer to further his professional success and should not engage in activities in which his personal or professional interests, as a practicing attorney, are or foreseeably may be in conflict with his official duties while serving as a hearing officer.”

Although not directly applicable, Canon 2(A) of the Code of Judicial Conduct found in Rule 81, Rules of the Supreme Court, 17A A.R.S., provides further insight into the purpose behind E.R. 1.12(b). This Canon states:

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.

There is a substantial risk that public confidence in the hearing officer could be undermined if the hearing officer were to negotiate for employment with an attorney for a party in a matter in which the hearing officer was personally participating.

Consequently, we conclude that E.R. 1.12(b) prohibits an attorney-hearing officer from negotiating for employment with any law firm representing a party in a matter in which current participation of the hearing officer can affect the merits or outcome of the matter. The hearing officer must also be mindful of the dictates of A.R.S. 5 § 38-501, et seq., pertaining to "Conflict of Interest of Officers and Employees," and must pay particular attention to A.R.S. § 38-504 which prohibits public employees from actions that could benefit the employee and indirectly conflict with her duties as a present or past employee of a public agency.

The Comment to E.R. 1.11, which is the companion rule to E.R. 1.12, recognizes that rules governing lawyers should not be so restrictive as to inhibit transfer of employment to and from the government. In view of that, the hearing officer is best advised first to identify those firms to whom she will apply and/or negotiate for employment. Then, during the period of employment negotiation, she should automatically disqualify herself from all matters which are currently or may come before her to which any client of the prospective law firm is a party or in which it has an interest. Further, she should agree that there is to be no discussion of any such matters in her presence that she will view no documents pertaining to such matters, and that she will take no part in any aspect of the decision in those matters.

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.

© State Bar of Arizona 1989