Issued January 30, 2003
1 Issue: May a Utah Assistant Attorney General serve as a hearing officer or other adjudicator for a Utah government agency on a matter for which the Office of Attorney General, which employs the attorney, may eventually undertake an advocacy role?
2 Conclusion: Yes. Under the Utah Rules of Professional Conduct, a lawyer’s employment by the Office of Attorney General does not, by itself and without the lawyer’s personal involvement in the matter before him, preclude the lawyer from serving as a hearing officer for a governmental agency in a matter the Office of Attorney General may later undertake as an advocate for the agency.
3 Background: From a roster the Utah State Office of Education maintain,1 an attorney in the Utah Attorney General’s office was randomly selected to serve as a hearing officer in a due-process hearing arising under the Individuals with Disabilities Education Act (“IDEA”).2 Petitioners were the parents of a disabled child. Respondent was the affected school district. The child’s parents were opposed to any Assistant Attorney General serving as a hearing officer because they claimed a potential conflict of interest between the Assistant Attorney General’s role as an impartial hearing officer and loyalty to his employer, which eventually might represent the school district in an advocacy role. Accordingly, Petitioners requested the Assistant Attorney General to recuse himself as a hearing officer.
4 On October 10, 2002, the hearing officer issued a “Decision on Petitioners’ Motion to Recuse Hearing Officer,” granting the Petitioner’s Motion to Recuse, though he concluded “Respondents’ arguments [against recusal] are far more persuasive and logically correct” than Petitioner’s arguments. Notwithstanding what he viewed as Respondent’s superior arguments, the hearing officer recused himself because, among other reasons, he felt there is “a lack of clear guidance on the conflict of interest issue, and the current lack of any safe harbor from an ethics complaint.” The hearing officer subsequently requested an Ethics Advisory Opinion from the Committee on this issue.3
5 Analysis: At the outset, we stress our opinion on the issue stated is necessarily limited to the scope of our jurisdiction—namely, whether an Assistant Attorney General who serves as a hearing officer under the facts summarized above will be in violation of the Utah Rules of Professional Conduct. We do not opine on how the IDEA, its supporting regulations and case law, the Utah Code of Judicial Conduct or public policy may bear on the issue. Our analysis and conclusion are, therefore, intentionally narrow and should not be construed otherwise.
6 The primary rule applicable to this issue is Rule1.12 of the Utah Rules of Professional Conduct.4 By its terms, Rule1.12 prohibits an Assistant Attorney General from serving as a hearing officer and later representing either party in any subsequent dispute. The rule likewise prohibits any law firm an Assistant Attorney General may later join from representing either party in the same matter, unless he is screened and apportioned no fee, and the firm provides notice to the appropriate tribunal. Rule1.12 does not, however, preclude the Assistant Attorney General from serving as a hearing officer when no other lawyer in the Attorney General’s office will represent either party before that Assistant Attorney General when acting as a hearing officer. An Assistant Attorney General’s employment with the Attorney General’s office does not, by itself and without personal involvement in the matter as an Assistant Attorney General on behalf of the Attorney General’s Office, violate Rule1.12.