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
authority.
Committee Opinion
March 9, 1994
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