Legal Ethics Opinion #1580
      Zealous Representation: Attorney Arguing That a Prior
        Case Decision Is Controlling in the New Case When
        the Attorney Knows the Decision Is Not Reflective
                of the Outcome of the Prior Case.
     You have presented a hypothetical situation in which a
      Virginia Assistant Attorney General represented a State
      agency in an administrative hearing held pursuant to Virginia
      Code ' 9-6.14:12 involving the rights/benefits of Party A.
      The hearing officer recommended that the agency deny in total
      the relief sought by Party A. Then Party A filed exceptions
      to the recommendation of the hearing officer, and Assistant
      Attorney General, on behalf of the agency, negotiated a
      settlement agreement (" Agreement") with Party A. Under the
      Agreement, the agency would pay Party A a sum of money which
      was less than the amount of money which Party A requested,
      but more than the hearing officer recommended to be due under
      the agency's regulations. The Agreement also contained a
      provision which allowed-the agency to issue its final case
      decision from which Party A would not appeal. Party A signed
      the Agreement before the final case decision was entered, and
      the agency signed the Agreement the next day. The agency's
      case decision did not reflect the underlying settlement
      agreement and was written as if the agency took a final
      action on the claim in a manner completely adverse to Party
      A. You state that, basically, the decision held that
      absolutely no money was owed to Party A, and that the
      decision did not divulge the amount, agreed to in the
      settlement, paid to the entity.
        You further state that in another formal evidentiary
      hearing, before the same agency but involving a different
      entity, Party B, the same issue which was the subject of
      Party A's case arises. The same Assistant Attorney General
      represents the agency. Assistant Attorney General argues to
      the formal evidentiary hearing officer that the former case
      decision should control the hearing officer's decision.
      Finally, you indicate that when Party B attempts to put the
      former settlement agreement into evidence, Assistant Attorney
      General argues that the former settlement agreement is
      irrelevant and inadmissible in the present case.
        You have asked the committee to opine whether, under the
      facts of the inquiry, it is unethical for an assistant
      attorney general to argue in a formal administrative hearing
      before a state agency (1) that a prior case decision of that
      agency, adverse to a like-situated claimant which does not
      reflect that it was the product of a settlement agreement
      favorable to the other claimant, should control the decision
      in another case; and (2) that the prior settlement agreement
      is irrelevant and inadmissible.
        The appropriate and controlling Disciplinary Rule related
      to your inquiry is  DR:7-102(A) (2) which states that a
      lawyer shall not knowingly advance a claim or defense that is
      unwarranted under existing law, except that he may advance
      such claim or defense if it can be supported by good faith
      argument for an extension, modification, or reveral
      [reversal] of existing law. Further guidance is available
      through Ethical Consideration 7-20 which states, in pertinent
      part, that the adversary system contemplates that each lawyer
      will present and argue the existing law in the light most
      favorable to his client.
        Since the committee is of the opinion that the concept of
      zealous representation requires an attorney to argue
      vigorously for his client within the bounds of the law, the
      committee opines that it is not improper for an assistant
      attorney general to argue that a prior case decision of that
      agency should control the hearing panel's decision in another
      case, irrespective of the possibility that the prior case
      decision does not reflect that it was the product of a
      settlement agreement and not the product of a panel opinion.
      See LE Op. 1476 
        As to your inquiry regarding the relevance and
      admissibility of the prior settlement agreement, the
      committee finds that it raises an evidentiary question within
      the purview of the fact-finder and outside the committee's
        Committee Opinion
        March 9, 1994