Can a school board's in-house lawyer also serve as the hearing officer in student suspension and expulsion hearings?

Plain-English summary

The opinion addresses a lawyer (Lawyer X) employed by a school board to provide in-house legal services to the board and administration, who is appointed by the superintendent as the hearing officer for initial student suspension and expulsion hearings. In those hearings she makes findings of fact, conclusions of law, and a discipline recommendation, before any appeal to the board. The question is whether she may serve in that adjudicative role. The opinion assumes no due process bar; if a court found the arrangement violated students' due process rights, the lawyer could not participate.

The opinion concludes she may serve, with conditions. Competent representation requires her to maintain neutrality and act impartially as hearing officer, both to fulfill the board's obligation to provide a fair hearing and to avoid exposing the board to later challenges or liability. If she reasonably believes she can provide competent and diligent representation to the board while serving as hearing officer, she may accept the role with the board's informed consent confirmed in writing (Rule 1.7(b)). Because the role creates an appearance of unfairness, the disclosure for consent must warn the board about the appearance problem, explain its practical legal effects, and advise that it could be avoided by retaining an independent, non-employee hearing officer. If the board consents after that disclosure, she may serve, and she must continually reassess her ability to stay neutral as her relationship with the board and administration changes.

The opinion distinguishes two authorities. Rule 1.12(b) (a judge or adjudicative officer may not negotiate for employment with a party before her) does not apply, because Lawyer X is already employed by the board and her decisions will not be swayed by employment offers. RPC 138 (barring a lawyer from arbitrating where a firm partner represents a party, based on the now-superseded Canon IX "appearance of impropriety" standard) also does not apply, both because the canons were eliminated in the 1997 revision and because here a single lawyer serves only as hearing officer rather than splitting advocate and adjudicator roles between firm members. The opinion does apply Rule 1.12(a): because she participated personally and substantially as an adjudicative officer, she may not later represent anyone in the same matter, so she may not become the board's advisor or the administration's prosecutor on appeal, or represent the board in a further appeal of a matter she initially heard, unless all parties give informed consent confirmed in writing.

In practice

Under the North Carolina rules as they stood at the time of the opinion, a board-employed lawyer may serve as a discipline hearing officer only if she can remain neutral and competently represent the board, and only with the board's informed written consent after a disclosure that flags the appearance of unfairness and the independent-officer alternative (Rule 1.7(b)). Per the opinion, she must keep reassessing her neutrality as her relationship with the board evolves.

Per the opinion, her role as adjudicator triggers Rule 1.12(a): she may not later advise the board or prosecute for the administration in the same matter on appeal, or represent the board in a further appeal of a matter she heard, unless all parties consent in writing.

Common questions

Q: Can a school board's own lawyer also act as the hearing officer in student discipline cases?

A: Yes, with consent. The opinion concludes she may serve if she reasonably believes she can remain neutral and competently represent the board, and the board gives informed written consent after disclosure of the appearance problem (Rule 1.7(b)).

Q: What must the board be told before it consents?

A: The appearance issue and the alternative. The opinion concludes the disclosure must warn the board of the appearance of unfairness, explain its practical legal effects, and advise that the problem could be avoided by retaining an independent, non-employee hearing officer.

Q: After serving as hearing officer, can the lawyer handle the case on appeal to the board?

A: No, absent consent. The opinion concludes that because she participated personally and substantially as an adjudicative officer, Rule 1.12(a) bars her from later advising the board or prosecuting the matter on appeal unless all parties give informed written consent.

Q: Does the appearance of impropriety alone disqualify her?

A: No. The opinion concludes the old Canon IX "appearance of impropriety" standard (and RPC 138 built on it) was eliminated in 1997, so if she can act impartially and the board consents after disclosure, there is no professional impropriety.

Background and rules framework

The opinion applies North Carolina Rule 1.7(b) (a lawyer may proceed despite a conflict if she reasonably believes she can provide competent and diligent representation and the client gives informed consent confirmed in writing) and Rule 1.12 (lawyers serving as adjudicative officers): Rule 1.12(b) (negotiating employment with a party, found inapplicable) and Rule 1.12(a) (no later representation in a matter the lawyer adjudicated absent all-party consent). These track Model Rules 1.7 and 1.12. The opinion also explains why the superseded Canon IX "appearance of impropriety" standard, and RPC 138 resting on it, no longer control.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NC Rule 1.7(b) (proceeding with informed written consent where the lawyer reasonably believes representation will be competent and diligent)
• MR 1.12 / NC Rule 1.12(a), 1.12(b) (lawyer as adjudicative officer; later representation; negotiating employment)

Cases:

• (The opinion assumes no due process bar and does not resolve that legal question.)

Other opinions cited:

• NC RPC 138: barred a lawyer from arbitrating where a firm partner represented a party, under the superseded Canon IX; distinguished and limited here.

See also

• NC 2008 FEO 2: School Board Lawyers in Administrative Proceedings
• NC 2007 FEO 16: Elected Official Cross-Examining Law Enforcement
• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2007-formal-ethics-opinion-10/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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.