RI-011

June 15, 1989

SYLLABUS

An administrative law judge may not negotiate for employment with an attorney for a party in a matter in which the administrative law judge is the sole decision-maker and the case is being held pending another tribunal's resolution of a lead case.

An administrative law judge may not negotiate for employment with an attorney for a party in a matter in which the administrative law judge has drafted an opinion, but is awaiting the concurrence, dissent or alternate opinion from other adjudicators on the panel.

An administrative law judge may not negotiate for employment with an attorney for a party at a prehearing conference conducted by the administrative law judge or at motions heard by the administrative law judge preceding a prehearing conference.

References: MRPC 1.7(b), 1.11(d), 1.12(b), 8.4(c); MCJC 2A; RI-4; CI-633, CI-672, CI-734; ABA Op 342; Woods v. Covington County Bank, 537 F2d 804 (CA 5 1976).

TEXT

An administrative law judge (ALJ) whose term is expiring would like to explore private employment opportunities before deciding to seek reappointment. The ALJ seeks guidance on the proper scope of his job-seeking activities.

1. Some 300 cases are being held in abeyance in two administrative agencies awaiting resolution by the Michigan Supreme Court of a lead case. It is likely that many of the private law firms in this field of practice are or will be involved in one of the matters awaiting the Court's determination. May the ALJ negotiate employment with an attorney for a party in one of the cases held by the ALJ?
2. May the ALJ pursue employment opportunities with a firm when the ALJ has completed a draft of an opinion in the matter and is awaiting concurrence or dissent from two other adjudicators on the same panel?
3. Is a prehearing conference or motions decided prior to prehearing "personal and substantial participation" of the "matter" falling within the MRPC 1.12(b) prohibition?

MRPC 1.12(b) states:

"A lawyer shall not negotiate for employment with any person who is involved as a party, or as an 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 . . . ."

MRPC 1.12(b) is clear. The ALJ may not negotiate for employment with a law firm which is attorney for a party before the ALJ, no matter how long it takes the Supreme Court to decide the lead case. If the matter was concluded, or if the responsibility of the ALJ for the matter was over, the prohibition would no longer apply.

The ALJ suggests issuing an order stating that the ALJ withdraws from the matters before the ALJ, and asking the parties for concurrence in allowing another adjudicator to preside. We believe this would be conduct prejudicial to the administration of justice prohibited under MRPC 8.4. Requiring another adjudicator to become familiar with the matter, to gain the confidence of the parties and their attorneys, and to step into such a "limbo" situation merely for the ALJ's personal employment desires would be contrary to the ALJ's duties of office.

May the ALJ pursue employment opportunities with a firm when the ALJ has completed a draft of an opinion in the matter and is awaiting concurrence or dissent from two other adjudicators on the same panel? Clearly the matter has not been concluded. The other adjudicators may suggest changes in language, new reasoning, etc., that should be accommodated by the ALJ in the opinion. The ALJ participation is not over, and the ALJ may not negotiate employment with a party or attorney appearing in the matter.

Is a prehearing conference or motions decided prior to prehearing "personal and substantial participation" of the "matter" falling within the MRPC 1.12(b) prohibition? MRPC 1.11(d) defines "matter" to include:

"(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties; and

"(2) any other matter covered by the conflict of interest rules of the appropriate government agency."

Prehearing conferences and rulings on motions prior to prehearing are "matters" within the scope of MRPC 1.11(d). There is no correlative definition of "matter" in MRPC 1.12, but the language of MRPC 1.11(c)(2) almost exactly tracks the language of MRPC 1.12(b). We believe the definition of "matter" in MRPC 1.11 is applicable to MRPC 1.12, and that prehearing conferences and orders are matters within MRPC 1.12(b).

During a prehearing conference the ALJ sets the timing for future discovery, exchange of data between parties, and hearing dates. Motions prior to prehearing include summary disposition, compelling interrogatories, etc. The question becomes whether these activities are "personal and substantial participation" under MRPC 1.12(b).

The phrase "personal and substantial participation" is used throughout MRPC 1.11 and 1.12. It derives from ABA Op 342 and the ABA Model Code of Professional Responsibility DR 9-101, which used the term "substantial responsibility." In CI-672 we noted that "substantial responsibility" has been interpreted to mean the attorney has been personally involved to an important, material degree in investigations about or deliberations on the transactions and facts in question during the lawyer's tenure in public office. A review of a petition and answer filed in an appeal was held not to be "substantial responsibility." In RI-4 we stated that receiving a police report and reviewing a complaint and warrant prior to its issuance is not "substantial participation." In both cases the lawyers had no direct contact with the parties or their lawyers; the activities were limited to "office practice." Nor did the lawyers in those opinions make determinations on the merits of the matters.

MRPC 1.12(a) contains the phrase "participated personally and substantially" in considering the cases a former adjudicator may undertake after leaving office. Arizona Op 84-2 disqualified a lawyer and the lawyer's firm from representation of a criminal defendant where the lawyer was a former judge assigned to the defendant's case and ruled on pretrial motions, including a motion to remand. Kentucky Op E-287 prohibited a former judge from accepting employment in a matter in which the judge had ruled on the merits while a judge, saying "since a lawyer must ensure that his conduct does not diminish public confidence in the legal profession and must avoid the appearance of impropriety, an ex-judge must decline private employment in any matter in which he had substantial responsibility prior to leaving office."

In CI-734 we cited ABA Op 342 and Woods v. Covington County Bank, 537 F2d 804 (CA 5 1976) stating public employees who anticipate leaving their agency frequently find themselves pressured to impress favorably private concerns with which they officially deal. Although rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from government, they should seek to avoid the "pressure" situations and the consequential erosion of public confidence in the administration of justice.

The impact of ABA Model Rule 1.11(c) is described in The Law of Lawyering, Hazard and Hodes, Prentice-Hall, l988 Supplement, in the Illustrative Case (a) at pages 221-222. In that example, a state government lawyer involved in litigation enforcing a state's antidiscrimination laws is approached by one of the opposing counsel during recess and asked to submit a resume to the opposing counsel's firm for a vacancy in the firm's matrimonial law department. Hazard and Hodes state negotiations for employment in such a case are improper, even though the opposing lawyer broached the subject, the available position was in an area of law unrelated to the case in which the lawyers were engaged, and even though the "offer" was merely to submit a resume. Further, opposing counsel has breached ABA Model Rule 8.4, since the offer constitutes an inducement to the government lawyer to violate the Rules.

It seems clear that prehearing conferences and motions prior to prehearing are on the merits of the matters presented. MRPC 1.12(b) would also prohibit the ALJ's employment negotiation with parties or their attorneys in those proceedings.

MRPC 1.7(b) reads as follows:

"A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibility to another client or to a third person, or by the lawyer's own interests . . . ."

The suggested negotiations for employment under the facts set forth in the Syllabus would clearly indicate a conflict of interest. The conflict would be between the personal interest of the ALJ and the duties and obligation of the ALJ to the tribunal employer whom the ALJ represents.