Timothy B. McCormack, attorney at law, writes about: Administrative Law Legal Ethics


Timothy B. McCormack, attorney at law, writes about: This paper has two basic aims: the first aim is to highlight a range of ethical issues that can arise and have arisen in the practice of administrative law; the second aim is to provide a starting point for thought, discussion and research on the issues presented and addressed herein.

The paper presents twelve hypothetical fact patterns with suggestions for each hypothetical as to which Rules of Professional Conduct are most likely applicable (and the text of those rules). Likewise, each hypothetical is followed by a model "answer." Many of the answers are based on actual state bar ethics opinions addressing similar situations.

The "answers' provided should not be considered dispositive on any particular issue; they are intended as a reference and as a starting point of discussion.

Question No. 1

You are a lawyer recently admitted to the Washington State Bar and are working for a general practice law firm. Your aunt approaches you regarding an administrative child support hearing that she has been summoned to attend.

The administrative agency in this case allows claimants to be represented by a lawyer or by other nonlawyer agents such as friends and family members. In discussing strategy with your aunt, she mentions that she does not believe the other side is represented by an attorney. She suggests that if you don’t mention that you are a lawyer, the other side might think that you were simply a nonlawyer family member. In order to avoid a legal "escalation" where the other side might choose to be represented by an attorney, you decided to not mention that you are an attorney at the upcoming hearing. Is this ethical"

A week before the hearing, the other side asks your aunt if she is represented by an attorney. She tells them no but mentions a family member will be speaking for her at the upcoming hearing. She tells you about the conversation. Do you have an ethical dilemma?"

At the hearing, the state's attorney asks you if you are a lawyer and whether you are acting in a representative capacity. “What do you say?"

Would the situation be any different if you were representing a client at an administrative rule making hearing?

Question No. 1

Applicable Rules of Professional Conduct

Rule 3.3(a) Candor toward the Tribunal

(a) A lawyer shall not knowingly:

(1) Make a false statement of material fact or law to a tribunal;

Rule 3.9 Advocate in Non-adjudicative Proceedings

A lawyer representing a client before a legislative or administrative tribunal in a non-adjudicative proceeding shall disclose that the appearance is in a representative capacity . . .

Rule 4.1(a) Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) Make a false statement of material fact or law to a third person [.]

Rule 8.3(a) Reporting Professional Misconduct

A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, should promptly inform the appropriate professional authority.

Rule 8.4(c) Misconduct

It is professional misconduct for a lawyer to:

(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation

Question No. 1

Suggested Answer

Based on Michigan Bar Opinion, R1-55

Under Rule 3.3 a lawyer is probably under no affirmative obligation to suasponte disclose, in all employment undertaken, the possession of licensed professional status. Any affirmative misrepresentation, or deliberate concealment, such as failing to respond to inquiries as to professional status, done in conjunction with any legal matter on which the lawyer has been employed, however, is likely a violation of the Washington Rules of Professional Conduct.

The Rule 3.3 is applicable to adjudicative hearings while Rule 3.9 concerns non-adjudicative proceedings. Under Rule 3.3 a lawyer must disclose all "material fact[s]" but is not necessarily required to disclose his or her professional status. Under Rule 3.9 a lawyer representing a client before a non-adjudicative administrative proceeding or a legislature is not required to inform the legislative or administrative tribunal of all material facts known to the lawyer but is required to disclose whether they are acting in a representative capacity.

A lawyer may not make a false statement of material fact or law to a tribunal, RPC 3.3(a), or to a third person, RPC 4.1(a). In proceedings before an Administrative Law Judge, the fact that a client's representative is a lawyer may be "material fact,"

Provided by McCormack Intellectual Property PS and written by Timothy B. McCormack, attorney at law and intellectual property lawyer.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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