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

by Timothy McCormack

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.

LOADING PDF: If there are any problems, click here to download the file.

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.

© Timothy McCormack, McCormack Intellectual Property PS | Attorney Advertising

Written by:

Timothy McCormack

McCormack Intellectual Property PS on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.