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Ezel / Ethics Opinions / OSB
OSB August 2005

Can a county counsel's office communicate ex parte with, and prepare draft findings for, a county land-use hearing officer it helped hire?

Short answer: Yes, qualified. Ex parte communication between county counsel and the planning division, hearing officer, or commissioners is not improper if authorized by ordinance or other law, by extension of the rule allowing such contact for state agency counsel. County counsel may advise and prepare documents for the hearing officer because the county, not the hearing officer, is the client, so there is no multiple-client conflict and no confidentiality problem.

Apply this to your situation

This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A private-practice lawyer is hired by a county board of commissioners as a part-time land-use hearing officer, after being interviewed and screened by county counsel and with a salary paid from the county counsel budget. County counsel advises the commissioners, the planning division, and the hearing officer in land-use cases, and often prepares draft findings and recommended orders for the hearing officer, who is not required to follow them. The planning division's decisions are reviewed first by the hearing officer, then by the commissioners. The opinion asks whether county counsel's communications with these officials are improper ex parte contact, and whether county counsel may advise and draft documents for the hearing officer; it answers no (qualified) to the first and yes to the second.

On ex parte communications, the opinion applies Oregon RPC 3.5(a) and (b), which bar seeking to influence an official by prohibited means or communicating ex parte on the merits during a proceeding unless authorized by law or court order. Relying on OSB Op. 2005-83, which held that an Attorney General's office lawyer may communicate ex parte with a hearing officer where the applicable statutes permit it as "authorized by law," the opinion extends the principle: city or county counsel may engage in similar contact if it is authorized by ordinance or other law.

On advising the hearing officer, the opinion concludes this does not make the hearing officer county counsel's client. Absent additional circumstances, county counsel's client is the county; because county counsel has only one client, there is no multiple-client conflict, and the lawyer serving as hearing officer does not represent any client. No issue of information relating to the representation of a client is present, so no Oregon rule is violated.

In practice

The opinion holds that, under the Oregon rules as they stood at the time, county counsel's dual support of multiple county bodies in a land-use case is permissible: ex parte contact is allowed where local law authorizes it, and advising the hearing officer does not create a separate client or a conflict because the single client is the county. Per the opinion, the analysis turns on whether the ex parte contact is "authorized by law" and on the identity of county counsel's client. Verify the current text of Oregon RPC 3.5, and the applicable local ordinances, before relying on any specific point.

Common questions

Q: Is it improper ex parte contact for county counsel to talk to the hearing officer and commissioners in a land-use case?

A: Not necessarily. The opinion concludes such communication is not improper if authorized by ordinance or other law, extending the rule that allows similar contact for state agency counsel.

Q: Can county counsel advise the hearing officer and draft findings for them?

A: Yes. The opinion concludes county counsel may do so, and that this does not make the hearing officer a client; absent other circumstances, the client is the county.

Q: Does advising multiple county bodies create a conflict?

A: No. Per the opinion, county counsel has only one client, the county, so there is no multiple-client conflict, and the hearing officer represents no client.

Background and rules framework

The opinion interprets Oregon RPC 3.5(a) and (b) (improper influence and ex parte communication with officials), corresponding to Model Rule 3.5, together with the "authorized by law" exception and the rule that a government lawyer's client is the governmental entity.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 3.5(a), (b) / Model Rule 3.5 (impartiality; ex parte communication)

Other opinions cited:

  • OSB Formal Ethics Op. No. 2005-83 (ex parte contact with an administrative law judge)
  • OSB Formal Ethics Op. No. 2005-67 (county counsel; who is the client)
  • OSB Formal Ethics Op. No. 2005-122 (rev 2026) (single government client)

See also

Source

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