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2007 Formal Ethics Opinion 10

January 25, 2008

Lawyer Employed by School Board as Hearing Officer

Opinion holds a lawyer employed by a school board may serve as an administrative hearing officer with the informed consent of the board.

Inquiry:

Before a decision to suspend or expel a student is made by the administration of a public school system, a student is afforded a hearing before an administrative hearing officer who makes findings of fact, conclusions of law, and a recommendation on discipline to the superintendent. These suspension and expulsion hearings precede an appeal to the board.

School Board hires Lawyer X as an employee to provide in-house legal services to the administration of the school system and to the board. As a part of her duties, Lawyer X is appointed by the superintendent as the administrative hearing officer for the initial suspension and expulsion hearings.

May Lawyer X serve in this capacity?

Opinion:

This opinion assumes that there are no due process prohibitions to the arrangement described in this inquiry. To the extent that this arrangement is held by a court to interfere with the due process rights of students, a lawyer may not participate.

Competent representation demands that the lawyer maintain her neutrality and act impartially when serving as a hearing officer to fulfill the board's obligation to provide a fair hearing and to avoid exposing her employer to subsequent hearings or liability. If Lawyer X reasonably believes that she will be able to provide competent and diligent representation to the board while serving in the capacity of hearing officer, she may accept the assignment provided the board gives informed consent, confirmed in writing. Rule 1.7(b). The lawyer's service as the administrative hearing officer may create an appearance of unfairness. Therefore, the disclosure necessary to obtain the informed consent of the board must include warning the board about the appearance problem, advising the board about the practical legal effects of the problem, and advising the board that the problem could be avoided by retaining an independent lawyer, who is not an employee of the board, to serve as the hearing officer. If the board consents after this disclosure, Lawyer X may serve as the hearing officer. Thereafter, Lawyer X must continually reassess her ability to fulfill her obligation to maintain her neutrality as a hearing officer as her relationship with the board and the administration changes over time.

This situation is not governed by Rule 1.12(b) which prohibits a lawyer who is serving as a judge or other adjudicative officer from negotiating for employment with a person who is involved as a party in a matter before the lawyer. Lawyer X is already employed by the board; her decisions as the hearing officer will not be influenced by offers of employment. Similarly, RPC 138 is not applicable. That opinion cites Canon IX of the now superseded 1985 Rules of Professional Conduct as the basis for prohibiting a partner of a lawyer representing a party to an arbitration hearing from acting as an arbitrator. Canon IX set forth the general admonition that "A lawyer should avoid even the appearance of professional impropriety." The canons did not establish specific standards or provide clear guidance for lawyer conduct and, for these reasons, were eliminated from the Rules of Professional Conduct when they were comprehensively revised in 1997. Mine, Executive Summary of the 1997 Revised Rules of Professional Conduct. RPC 138 prohibits lawyers in the same firm from serving, respectively, as advocate and adjudicator because of the appearance of impropriety. In the present inquiry, the lawyer is serving solely as the hearing officer. Moreover, the potential that there will be an appearance of unfairness in the proceeding must be disclosed to the board, as explained above, but, if the lawyer concludes that she can perform the role competently, which includes acting impartially, and the board consents, there is no professional impropriety.

Rule 1.12(a) prohibits a lawyer from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer unless all parties to the proceeding give informed consent confirmed in writing. Therefore, Lawyer X may not subsequently act as the advisor to the board or the prosecutor for the administration in an appeal to the board, nor may she represent the board in any further appeal of a disciplinary matter in which Lawyer X served as the initial hearing officer, unless all parties give informed consent confirmed in writing.

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