Can attorneys who regularly practice before a state agency also serve under contract as the agency's part-time hearing officers?

Plain-English summary

The Taxation and Revenue Department proposed to contract with three or four attorneys who practice before the Department to serve as hearing officers when the Department's internal officer could not. The Department said it had designed a procedure to eliminate direct conflicts of interest, and asked whether the proposal created any appearance of impropriety.

The opinion concluded there was an appearance of impropriety. Quoting ABA Formal Opinion 161, it observed that one who acts as judge one day and advocate the next in the same judicial system faces inherent difficulties that ought to be avoided. Even if direct conflicts were avoided, there was no way to avoid the inevitable impression created by attorneys who advocate and adjudicate in the same forum. Because hearing officers, though not judges, fill judicial roles in a quasi-judicial administrative forum, the opinion looked to standards for judicial conduct, including the Model Code of Judicial Conduct's treatment of part-time and pro tempore judges, and authority such as In re Kenton County Bar Ass'n holding that a continuing part-time appointment precludes the appointee from practicing in the court over which he may preside.

The opinion reasoned that, to the public, an attorney who shares responsibility for hearing tax cases with two or three others might appear capable of gaining influence from that position, unavoidably and despite the absence of any direct conflict or improper motive. It tied this to Canon 9 and DR 9-101(C), which bar a lawyer from stating or implying an ability to influence a tribunal improperly. Because the implications of improper influence are so inescapable that judges are precluded from appearing before their own forums, the opinion concluded administrative hearing officers should likewise be precluded.

Currency note

This opinion was issued in 1985, when New Mexico lawyers were governed by the former New Mexico Code of Professional Responsibility, which the State Bar later replaced with the Rules of Professional Conduct; it also predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The rules it cites, including Canon 9 and DR 9-101(C), are no longer in force. Treat this page as historical context, not current guidance.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 a lawyer who practices before an agency also serve as its part-time hearing officer?

A: The opinion concluded the arrangement created an appearance of impropriety and that such hearing officers should be precluded from practicing before the agency, because advocating and adjudicating in the same forum creates an unavoidable impression of potential influence.

Q: Did the Department's screening of direct conflicts cure the problem?

A: No. The opinion concluded that even if direct conflicts were avoided, there was no way to avoid the untoward and inevitable impression created by attorneys who advocate and adjudicate in the same forum.

Q: Why did the opinion apply judicial-conduct standards to hearing officers?

A: Because hearing officers, though not judges, fill judicial roles in a quasi-judicial administrative forum, the opinion looked to judicial-conduct standards, under which a part-time judge should not practice in the court on which he serves.

Background and rules framework

The opinion interpreted the appearance-of-impropriety principle of the former New Mexico Code of Professional Responsibility, Canon 9 and DR 9-101(C) (not stating or implying an ability to influence a tribunal improperly), and drew on judicial-conduct standards (the ABA Model Code of Judicial Conduct on part-time and pro tempore judges) by analogy, in evaluating attorneys serving as quasi-judicial agency hearing officers.

Citations and references

Rules of Professional Conduct (former Code):

• Model Code DR 9-101 / NM Code Canon 9, DR 9-101(C) (avoiding even the appearance of improper influence on a tribunal)

Cases:

• In re Kenton County Bar Ass'n, 314 Ky. 664, 236 S.W.2d 906 (1951), a continuing part-time judicial appointee may not practice in the court over which he presides

Other opinions and standards cited:

• ABA Formal Opinion 161 (May 5, 1936): acting as judge one day and advocate the next in the same system should be avoided
• ABA Model Code of Judicial Conduct, Compliance Code (part-time and pro tempore judges)

See also

• NM Ethics Op. 1985-1: Insurer Defense Conflict

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1985/1985-7.pdf

Original opinion text

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

Advisory Opinion 1985-7
The Taxation and Revenue Department has requested an advisory opinion concerning a proposal to contract with three or four attorneys, who practice before the Department, to serve as hearing officers. According to the Department, the attorneys would be under continuing contracts, to serve as hearing officers when the Department's internal officer is unable to serve.
The Department indicates that it has designed a procedure to eliminate direct conflicts of interest. The question posed to the committee is whether this proposal creates any appearance of impropriety.
The committee finds that there is an appearance of impropriety. "[O]ne who assumes to act as judge on one day and as advocate the next in the same judicial system is confronted with inherent difficulties that ought to be avoided and deprecates the employment of such a system." A.B.A. Formal Opinion 161 (May 5, 1936). Although direct conflicts may be avoided by the hearing officers, there is no way to avoid the untoward and inevitable impression created by attorneys who advocate and adjudicate in the same forum.
Hearing officers for the Department are not judges, however, they would clearly be fulfilling judicial roles in a quasi-judicial administrative forum. Because of this, it is appropriate to look at standards for judicial conduct, when determining whether the proposed arrangement might appear improper. See, A.B.A. Model
that reason is less than that of a full-time judge; "a judge pro-tempore is a person who is appointed to act temporarily as a judge. A.B.A. Model Code of Judicial Conduct, Compliance Code Sections A, B. A continuous, although part-time, relationship would preclude the attorneys from representing clients before the Department: "if there is a continuing appointment with more or less permanent tenure of office, although subject to the pleasure of the judge or . . . [the agency] it is improper for the appointee to practice any case in the court over which he may preside, and until a reasonable time after he has severed his official connection with that court." In re Kenton County Bar Ass'n., 314 KY 664, 236 S.W.2d 906 (1951). To avoid appearances of impropriety, a part-time judge "should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves . . ." A.B.A. Model Code of Judicial Conduct, supra, Compliance Code Section A(2).
To the public, it would seem that an attorney who shares the responsibility for hearing tax cases with two or three others, might be capable of gaining some influence as a result of that position. Such would be unavoidable, despite the absence of any direct conflict or improper motive. Lawyers are prohibited from stating or implying that they are "able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official." Code of Professional Responsible Conduct, Canon 9, D.R. 9-101(C). The implications of improper influence are so inescapable that judges are precluded from appearing before their forums; the committee believes that administrative hearing officer should likewise be precluded.