Can an Attorney General's staff lawyer give a trial judge ex parte advice on the merits of a case in which the state is a party but not yet represented by the AG?

Plain-English summary

The inquiry asked whether a member of the Attorney General's staff may engage in ex parte communication with a trial judge about the merits of a pending case in which the state is a party but is not presently represented by the AG. The opinion assumed that within the AG's office a "division" is the functional equivalent of a law firm for imputation purposes.

The opinion concluded that such a communication is barred if it is likely that the consulting lawyer, or a member of the lawyer's division, will be called upon to represent the state on appeal. In that situation the staff member must be treated as the alter ego of counsel for the state in the trial court, so the communication is tantamount to an illicit ex parte communication by the state's lawyer under Rule 7.10(b). The lawyer would also be disqualified for conflict of interest, because the ability to give the court disinterested advice would be materially limited by the expectation that the lawyer or the lawyer's division would take a partisan role for the state on appeal, citing Rule 5.1(b).

Because the committee has previously determined that the AG's office is not treated as a monolithic law firm (RPC 55), there is no ethical impediment to the AG advising a trial judge in a case where the state has an interest, provided the state will not be represented on appeal by the consulting lawyer or a member of that lawyer's division. The consulting lawyer is then treated as belonging to a "firm" separate from the division that will handle the appeal. The opinion added that once a staff member consults with a trial judge ex parte, neither that lawyer nor any other member of the lawyer's division should represent the state on appeal, to avoid the appearance of impropriety under Canon X. It noted that Rule 9.2(a), while not dispositive, is supportive: the consulting lawyer in effect provides the services of a law clerk, and Rule 9.2(a) prohibits a lawyer who participated in a matter as a judge's law clerk from later representing anyone in the same matter, with that disqualification imputed to the lawyer's firm.

Finally, the opinion is inapplicable to communications that are not ex parte; the trial court can avoid disqualifying AG staff from later serving as advocates by ensuring that all parties to the pending case are also parties to the communication.

Currency note

This opinion was issued in 1992, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct, and it rests in part on the former "appearance of impropriety" standard of Canon X. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can an AG staff lawyer privately advise a trial judge on a pending case the state is involved in?

A: Only sometimes. The opinion held the lawyer may not do so ex parte if the lawyer or the lawyer's division would likely represent the state on appeal, because the lawyer is then the alter ego of the state's counsel.

Q: Why is the ex parte contact barred in that situation?

A: The opinion held it would be an illicit ex parte communication under Rule 7.10(b) and a conflict of interest under Rule 5.1(b), since the lawyer could not give disinterested advice while the lawyer's division expects to advocate for the state.

Q: When is consulting the judge permissible?

A: The opinion held it is permissible where neither the consulting lawyer nor the lawyer's division will represent the state on appeal, since the AG's office is not treated as a single monolithic firm (RPC 55).

Q: What is the effect of consulting the judge ex parte?

A: The opinion held that once a lawyer consults ex parte, neither that lawyer nor the lawyer's division may then represent the state on appeal, drawing support from the law-clerk disqualification rule, Rule 9.2(a), and Canon X.

Q: How can the court avoid the problem entirely?

A: The opinion held the court can ensure all parties to the case are parties to the communication, so it is not ex parte and the opinion's restrictions do not apply.

Background and rules framework

The opinion applied North Carolina Rule 7.10(b) on ex parte communication with an adjudicative official (corresponding to Model Rule 3.5), Rule 5.1(b) on conflicts of interest (corresponding to Model Rule 1.7), and Rule 9.2(a) on the disqualification of a former judicial law clerk and its imputation to the lawyer's firm (corresponding to Model Rule 1.12), together with the former Canon X appearance-of-impropriety standard and the rule from RPC 55 that the AG's office is not a single firm. The analysis turns on treating each AG division as the functional equivalent of a firm.

Citations and references

Rules of Professional Conduct:

• MR 3.5 (impartiality of the tribunal; ex parte communications)
• MR 1.7 (conflict of interest; disinterested advice)
• MR 1.12 (former judge, arbitrator, or law clerk; imputation)
• North Carolina Rule 7.10(b) (ex parte communication in an adversary proceeding)
• North Carolina Rule 5.1(b) (conflict of interest)
• North Carolina Rule 9.2(a) (disqualification of a former judicial law clerk)

Other opinions cited:

• North Carolina RPC 55 (AG's office not treated as a monolithic law firm)

See also

• NC Ethics Op. RPC 132: communications with government officials
• NC Ethics Op. RPC 131: representing the county while suing its department of social services

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-122/

Original opinion text

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

Inquiry:

May a member of the attorney general's staff engage in an ex parte communication with a trial court judge concerning the merits of a case pending before that judge in which the state, though a party, is not presently represented by the attorney general?

Opinion:

Note: For the purposes of the Rules of Professional Conduct, disqualification is generally imputed within a law firm or its functional equivalent. Here it is assumed that within the organizational structure of the attorney general's office, a "division" is the functional equivalent of a law firm.

A member of the attorney general's staff may not engage in such an ex parte communication if it is likely that that lawyer or a member of his or her division within the attorney general's office will be called upon to represent the state in the event of an appeal. Under such circumstances the member of the attorney general's staff must be treated as the alter ego of counsel for the state in the trial court, and any such communication would be tantamount to an illicit ex parte communication by the state's lawyer. Rule 7.10(b). The member of the attorney general's staff would also be disqualified for reasons of conflict of interest. The ability of such a lawyer to give the court disinterested advice would be materially limited by the fact that that lawyer or another member of that lawyer's division within the attorney general's staff would be expected to take a partisan role on behalf of the state on appeal. Rule 5.1(b).

The ethics committee has previously determined that the attorney general's office will not be treated as a monolithic law firm for the purposes of the Rules of Professional Conduct. RPC 55. Therefore, there is no ethical impediment to the attorney general offering advice to a trial court judge in any case in which the state has an interest if the state will not be represented on appeal by the consulting lawyer or a member of the consulting lawyer's division within the attorney general's office. Under such circumstances the consulting attorney, though a member of the attorney general's staff, would be considered as belonging to a "firm" which is separate and apart from the division or "firm" within the office of the attorney general for which the lawyer ultimately assigned responsibility for the appeal works.

Once a member of the attorney general's staff undertakes to consult with a trial court judge on an ex parte basis, neither that lawyer nor any other member of that lawyer's division within the attorney general's office should undertake to represent the state on appeal. This is necessary to avoid the appearance of impropriety. Canon X. Rule 9.2(a), though not dispositive, is supportive of this conclusion. In advising the court the consulting lawyer is in effect providing the services of a law clerk. Rule 9.2(a) prohibits a lawyer who has participated in a matter as a judge's law clerk from representing anyone in the same matter. The disqualification, which was designed to avoid the appearance of impropriety, is imputed to the other members of the lawyer's firm. The same concern justifies disqualification of the consulting lawyer and the other members of his or her division in the instant case.

The foregoing opinion is inapplicable to communications that are not ex parte. The trial court may avoid putting members of the attorney general's staff in the position of being precluded from participation in the case as advocates for the prosecution after having participated as advisors to the court by ensuring that all parties to the pending case are also parties to the communication.