LEO: Appearance of Impropriety - Part-Time  LE Op. 1253


Appearance of Impropriety - Part-Time Hearing Officer - Public

Employment: Former Part-Time Administrative Hearing Officer in

Special Education Matters Accepting Employment with the State

Agency Authorized to Provide Legal Services to Parents and

Children in the Same Matter.


June 5, 1989


You indicate that an attorney who previously served as a part-time

administrative hearing officer in special education due process

proceedings, subsequently left private practice, had his name removed from

the list of hearing officers maintained by the Supreme Court of Virginia,

and accepted employment as Deputy Director/Managing Attorney of the state

agency which is statutorily authorized to provide legal services to

parents and children in special education matters. In his prior capacity

as a hearing officer, the attorney had presided over a particular special

education matter in which the local school division was represented by

counsel and the parents/child advocated for themselves. The hearing

officer found in favor of the parents/child and that decision was affirmed

by the second level state review officer. The school division subsequently

appealed those decisions to the local Circuit Court and the parents/child

have requested legal representation be made available by the

aforementioned state agency authorized to provide such services.


You have further indicated that the primary duties of the former part-

time administrative hearing officer/current Deputy Director are to manage

the caseload of the agency, supervise the staff attorneys, serve as case

attorney in certain cases, and be responsible for all litigation, judicial

or administrative, pursued by the agency on behalf of its clients.


You have requested that the Committee consider the general propriety of

the agency providing legal representation for the parents/child in the

forthcoming court action, considering the agency's Deputy Director's

previous quasi-judicial role in the prior administrative proceeding. You

have additionally inquired as to the propriety of such representation if

the agency is unable to provide an attorney other than the specific

individual who now serves as the Deputy Director.


Although the legal services in question are offered from within a public

agency, the Committee is satisfied that the relationships established with

clients are in the nature of private employment, much the same as are

those established within the traditional legal aid system, since the

agency represents private litigants in a private right of action. (See

Telos, Inc. v. Hawaiian Telephone Company, 397 F. Supp. 1314, 1317 (1975))

Therefore, the appropriate and controlling disciplinary rule relative to

your inquiry is DR:9-101(A) which provides that, in avoiding even the

appearance of impropriety, a lawyer shall not accept private employment in

a matter upon the merits of which he has acted in a judicial capacity. The

broad brush of DR:9-101(A) simultaneously eliminates the perception of

impropriety and the potential for the former judicial officer being placed

in the untenable position of having to argue the merits of his own

judicial rulings. Similarly, DR:9-101(B) precludes a lawyer from

accepting private employment in a matter in which he had substantial

responsibility while a public employee, in this case a hearing officer

empowered by the Supreme Court of Virginia to preside over administrative



The Committee believes it is apparent that, while acting in a quasi-

judicial capacity, the hearing officer did not establish an attorney-

client relationship and thus did not become privy to any secrets or

confidences of either party involved in the litigation. Thus, the

admonitions of Canon 4, regarding protection of a client's secrets and

confidences, and of Canon 5, regarding the exercise of independent

professional judgment in light of an attorney's possible conflicts of

interest, are inapposite in this situation.


The Committee is of the view that representation of the parents/child by

the attorney/Deputy Director would constitute the appearance of

impropriety given his earlier quasi-judicial role in the matter. The

committee has earlier opined that it would be improper for an attorney who,

in his capacity as a commissioner in chancery, reported on accountings in

a suit involving an estate, to subsequently represent as counsel, and file

a suit for, the beneficiaries of the same estate. (See LE Op. 269)


In another application of the Canon 9 prohibitions, the Committee opined

that it would not be improper for a member of a law firm, other than the

lawyer who acted as the substitute judge and heard the traffic case, to

undertake the representation of an insured defendant in a civil suit which

arose as a result of the traffic accident. (See LE Op. 686) Although the

instant matter differs somewhat from the situation in LE Op. 686, the

Committee believes that this Legal Ethics Opinion is instructive, and

opines that the attorney/Deputy Director can properly supervise the

representation of the parents/child by the state agency for which he has

responsibility if he concludes that to do so is a good faith exercise of

the agency's public responsibility and not merely an exercise to support

his own previous conclusions. This opinion is conditioned further on the

fact that the staff attorney who becomes attorney of record and actually

represents the parents/child, although hired and employed by the state

agency, will be primarily responsible for that matter, exercising

independent professional judgment and fully discharging his ethical

responsibilities. Whereas the attorney/Deputy Director, in carrying out

his duties for the state agency, routinely may appear in cases as co-

counsel and would ordinarily supervise the staff attorneys with regard to

case management, strategies and tactics, it is the opinion of the

Committee that in this specific case, because of his prior quasi-judicial

role, the attorney/Deputy Director should not appear as co-counsel of

record and should limit his role to administrative supervision of the

staff attorney assigned to the case. These limitations similarly would

apply to any cases where the agency offered representation to clients who

had earlier appeared before the attorney/Deputy Director in his capacity

as a hearing officer.


The Committee's opinion is further tempered and influenced by the

possibility that a failure of the state agency to undertake representation

of the parents/child because of the potential for an appearance of

impropriety might result in abrogation of the state agency's public duty,

and the Deputy Director's responsibility as a manager, to provide such

services. Despite the need for a heightened sensitivity to public

perception regarding the attorney's involvement as an advocate in a matter

in which he earlier had judicial responsibilities, amputations of the

disqualification of the Deputy Director to the entire agency might work an

undue hardship on the parents/child. In carrying out his public

responsibilities as Deputy Director, the attorney may wish to attempt to

find a substitute manager within the agency for this particular matter. If

no substitute or authorized designee can be found for this matter, however,

then the Deputy Director may continue to administratively manage the

attorney representing the parents/child under the conditions set forth

above. Further, the Deputy Director may permit decisions regarding

litigation strategies and tactics to be made by consensus of the group of

staff attorneys while taking no personal active role in that decision-



Committee Opinion June 5, 1989