Can a state agency staff lawyer also sit as a hearing officer on the panel that reviews protest matters involving his own agency?

Plain-English summary

A lawyer on a state agency's legal staff normally represented the agency in procurement-protest matters before the state procurement review panel. He was appointed by the governor to serve as an administrative hearing officer on that same panel, which regularly hears protests involving agency contracts. He asked whether he could serve on the panel and, if so, in what matters he and his colleagues could still represent the agency.

The committee concluded he cannot serve on the panel and continue handling procurement matters for the agency. The core problem is that he cannot be both an impartial hearing officer and a zealous advocate for an agency that regularly appears before the panel, an arrangement the committee analogized to a sitting Supreme Court Justice practicing law in the state's courts. Under Rule 1.7(b), his duty of strict impartiality to the panel directly conflicts with his duty to act zealously for the agency, and the committee concluded the conflict cannot be waived because each role necessarily and adversely affects the other. It also relied on In re Friday, which prohibits a lawyer from acting as both judge and advocate in the same matter.

Accordingly, if he serves on the panel he may not represent the agency before the chief procurement officer (whose decisions he would review), before the panel, or in the circuit court (where he would defend his own decisions as hearing officer). Under Rule 1.10(a), because the agency's legal department is a "firm," the disqualification is imputed to the other agency staff lawyers, who therefore may not represent the agency in matters reviewable by the panel; nor can they avoid that disqualification by limiting their role to supervision, since disqualification bars all involvement. The committee strongly recommended consulting the State Ethics Commission and the Canons of Judicial Conduct, which are outside its purview.

Currency note

This opinion was issued in 1994, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 agency lawyer also be a hearing officer on the panel reviewing his agency's cases?

A: The committee concluded no, while he continues to represent the agency, because impartiality and zealous advocacy conflict unwaivably under Rule 1.7(b).

Q: Does the conflict reach the rest of the agency's legal staff?

A: Yes. The committee said Rule 1.10(a) imputes the disqualification to the agency's other staff lawyers in matters reviewable by the panel.

Q: Can colleagues just supervise outside counsel instead?

A: No. The committee said a disqualification that allowed supervisory involvement would be meaningless; it bars all involvement, so the agency may not appear before him through supervised outside counsel.

Background and rules framework

The opinion applied Rule 1.7(b) (representation materially limited by responsibilities to a third person, here the duty of impartiality) and Rule 1.10(a) (imputed disqualification within a firm, including a government legal department), each corresponding to the like-numbered Model Rule, and relied on In re Friday.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7(b) / Model Rule 1.7: representation materially limited by other responsibilities.
• South Carolina RPC 1.10(a) / Model Rule 1.10: imputed disqualification within a firm.

Cases:

• In re Friday, 208 S.E.2d 535 (S.C. 1974): a lawyer may not act as both judge and advocate in the same matter.

See also

• SC Bar Ethics Op. 95-10: Public Defender and School Counsel
• SC Bar Ethics Op. 94-32: Volunteer Prosecutor Defending

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-33/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 94-33

Attorney A is employed by a state agency ("Agency") as a member of its legal staff. The Agency periodically enters into procurement contracts and is therefore sometimes involved in protests concerning the letting of those contracts. The protest process is a special administrative procedure that begins with a hearing before the state's chief procurement officer, who is an employee of the state office of general services. The decisions of the chief procurement officer are reviewed by the state procurement review panel ("Panel"), and its decisions are likewise reviewed by the circuit court. Attorney A has been appointed by the governor to serve as an administrative hearing officer on the Panel, which regularly hears protests involving contracts. In his capacity as staff counsel, Attorney A normally represents the Agency before the Panel.

Questions:
1) Do the Rules of Professional Conduct prevent Attorney A from serving as a panel hearing officer?
2) If Attorney A serves on the Panel, may he continue to represent the Agency in protest matters (a) before the chief procurement officer, (b) before the Panel, and (c) before the circuit court?
3) If Attorney A serves on the Panel, may other members of the Agency legal staff appear before the Panel to represent the Agency in protest matters?
4) If Attorney A serves on the Panel, what involvement, if any, can he have in procurement matters involving the Agency?
5) If Attorney A serves on the Panel, may the Agency appear before him if it is represented by outside counsel who would nonetheless be supervised by members of the Agency's legal staff?

Summary:
1) Attorney A cannot serve on the Panel and continue to handle procurement matters for the Agency.
2) If Attorney A serves on the Panel, he cannot also represent the Agency before the chief procurement officer, the Panel, or the circuit court.
3) If Attorney A serves on the Panel, other members of the Agency's legal staff will be disqualified from representing the Agency in matters reviewable by the Panel.
4) If Attorney A serves on the Panel, he cannot have any involvement as an advocate in matters reviewable by the Panel.
5) If Attorney A serves on the Panel, the Agency may not appear before him if represented by counsel who are supervised by members of the Agency's legal staff.

Opinion:
Although not entirely clear from this inquiry, the committee assumes Attorney A seeks to accept appointment to serve on the Panel while at the same time continuing his employment as staff counsel for the Agency.

The essential ethical issue is thus whether Attorney A can serve as a hearing officer on the Panel and still maintain a lawyer/client relationship with an Agency that regularly appears before the Panel. The obvious problems are Attorney A's potential for exhibiting adjudicative bias in favor of his Agency client, and his inability to zealously advocate the interests of his client while maintaining his judicial impartiality. An apt analogy would be Justice of the Supreme Court practicing law in the courts of this state during his tenure as a sitting Justice. The committee believes that the Rules of Professional Conduct squarely prohibit such an arrangement.

Rule 1.7(b) states that a lawyer may not represent a client "if the representation of that client may be materially limited by the lawyer's responsibilities ... to a third person." In the situation presented, the lawyer's responsibility to the Panel, best characterized as a duty of strict impartiality, directly conflicts with his responsibility to act zealously in support of his client's interests. The committee is of the opinion that such a conflict cannot be waived because representation of the client is by necessity adversely affected by the duties inherent in the position of the hearing officer and vice versa. See, Rule 1.7(b)(1).

In addition, In Re Friday, 208 S. E. 2d 535 (S.C. 1974), squarely prohibits a lawyer from acting as both a judge and an advocate in the same matter. Although decided under the Code of Professional Responsibility and based in large part on a state statute specifically addressing the conduct of magistrate judges, In Re Friday is nonetheless the Supreme Court's only reported decision touching the issue here and its unqualified prohibition against Attorney A's contemplated conduct should be considered applicable.

Accordingly, Attorney A cannot serve on the Panel and continue to represent the Agency in matters that are reviewable by the Panel. This includes representation before the chief procurement officer because as hearing officer the Attorney would be reviewing decisions in which he had participated as an advocate and also representation in the circuit court because he would then be advocating a position regarding his decisions as hearing officer.

Rule 1.10(a) states "While lawyers are associated in a firm, none of them shall knowingly represent a client when one of them practicing alone would be prohibited from doing so by Rule 1.7...". The "Definitions" section of the Rules state that the term "firm" includes lawyers who work together in the legal department of an organization or who are employed together in a legal services organization. Accordingly, the imputed disqualification of Rule 1.10(a) applies to other lawyers employed by the Agency.

As such, if the Attorney serves as a hearing officer on the Panel, the Agency's staff lawyers are disqualified from representing the Agency in matters reviewable by the Panel.

If members of the Agency's legal staff are disqualified from appearing before the attorney in his capacity as panel hearing officer, they cannot avoid that disqualification by limiting their role to one of a supervisory nature. If a lawyer is disqualified from handling a matter, that disqualification is meaningless unless it prohibits all involvement in the matter. Finally, this inquiry posits the essential question whether a judicial hearing officer may sit in judgment over controversies involving his employer when represented by himself, his co- workers, or his co-workers' underlings. While it is beyond the purview of this committee to interpret or issue opinions concerning the rules of the State Ethics Commission or the Canons of Judicial Conduct, it nonetheless strongly recommends that these authorities be consulted on this issue.