Utah State Bar
Ethics Advisory Opinion Committee
Opinion Number 15-01
Issued January 13, 2015
- The Utah Board of Pardons and Parole (the “Board”) and a private attorney have jointly requested the Ethics Advisory Opinion Committee issue an opinion on what constitutes a “matter” as discussed in Utah Rules of Professional Conduct 1.11(a)(2) and 1.12(a). Specifically, in light of the nature of Board proceedings, do all decisions involving an individual offender constitute the same “matter” for purposes of Rule 1.11(a)(2) and 1.12(a)? What are the limitations on a former member of the Board or hearing officer in representing offenders before the Board?
- A former member of the Board (or hearing officer) may not represent an offender before the Board without the informed written consent of the Board where the former Board member (or hearing officer) personally and substantially participated in prior Board proceedings involving the same offender. However, the specific facts and circumstances of the subsequent representation, including, without limitation, the lapse of time between the two Board proceedings and nature of the offenses involved, may often provide a basis for the Board to waive any potential conflict in such a situation.
3. The Board is an administrative agency of the Executive Department created by the Utah Constitution. Utah Const. Art 7, § 12. The Board is charged with determining “when and under what conditions, subject to this chapter and other laws of the state, persons committed to serve sentences in Class A misdemeanor cases at penal or correctional facilities which are under the jurisdiction of the Department of Corrections, and all felony cases except treason or impeachment or as otherwise limited by law, may be released upon parole, pardoned, ordered to pay restitution, or have their fines, forfeitures, or restitution remitted, or their sentences commuted or terminated.” Utah Code Ann. § 77-27-5(1)(a). In addition to the constitutional and statutory bases for its authority, the Board is also governed by its own rules under the Utah Administrative Code, Section R671, et seq. Currently, the Board is made up of a five-member panel who, by majority vote, make the aforementioned decisions. Additionally, the Board employs a number of hearing officers who assist the Board by conducting hearings and writing recommendations utilized in the Board’s decision-making process. When hearing officers or Board members write recommendations, those recommendations are not available to individuals outside of the Board and its employees, including the offender. The recommendations are classified as “protected” or as “non records,” pursuant to GRAMA. Additionally, the votes of individual members attached to these recommendations are not released to the offender or others. Board members and employees may not remove material from the files or retain photocopies of the information.
4. When an offender is first convicted of a Class A misdemeanor or felony and committed to the custody of the Department of Corrections, the Board opens a file on that offender. That file contains all of the records the Board possesses on the offender, including the offender’s criminal history, supervision history, and records pertaining to that offender provided by the Department of Corrections. The Board opens only one file on each offender. If an offender commits new offenses, is released on parole, etc., this additional information is added to the existing file. When the Board makes a decision regarding an offender, it considers the entire file. For example, the Board will consider previous convictions, even those that have terminated, and previous paroles in making a current decision regarding an offender. Of particular import, the Board member and/or hearing officer participating in a particular decision in an offender’s case has access to the confidential intra-Board memoranda containing recommendations and individual votes of each member regarding previous decisions. Further, the Board and hearing officers are able to access any other confidential information contained in the file, including information from confidential informants, etc. As necessary, Board members or hearing officers are occasionally recused from participating in any part of the decision-making process associated with a particular offender’s case. Once recused, the Board member or hearing officer is prohibited from accessing the offender’s file and participating in any future decisions regarding the offender.