 |
NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics
Opinion #767 – 10/08/2003
|
Topic: Part-time public official or employee; Conflicts of interest;
Advertising
|
|
Digest: Certified impartial hearing officer may not represent clients
in hearings in same school district or if other conflict of interest
exists; may include certification in advertising.
|
|
Code: DR 1-102(A)(5), 2-101(A), 5-101(A), 8-101(A)(2), 9-101(B)(1),
(3)(a), (C), EC 8-8, 9-1, 9-2, 9-4, 9-6, Canon 9
|
|
CJC: N.Y. Comp.
R. & Regs. tit. 22, §100.6(B)(2), (C).
|
QUESTION
A lawyer is certified by the New York State Commissioner of Education
as an impartial hearing officer (“IHO”) to hear disputes
between school districts and parents of students with disabilities
regarding the identification, evaluation and educational placement of
such students.
- May the lawyer, in addition to acting as an IHO, also in private
practice represent parents in such hearings?
- May a lawyer so certified refer to the certification in
advertising?
OPINION
Background
The inquirer practices
primarily in the area of special education law, representing parents of
students with disabilities. When those parents disagree
with a determination made by a school district regarding the education
of their child, they are entitled to a hearing before an
IHO. To be
eligible to serve as an IHO, a person must (1) be a New York lawyer in
good standing with a minimum of two years practice and/or experience in
the areas of education, special education, disability or civil rights,
or have been certified as an IHO on or prior to September 1, 2001; (2)
have access to the support and equipment necessary to perform the duties
of an IHO; (3) be independent, not be an officer, employee or agent of
the school district or of the board of cooperative educational services
of which such school district is a component or an employee of the State
Education Department, not have a personal or professional interest in
conflict with his or her objective in the hearing, and not have
participated in the formulation of the recommendation to be reviewed;
and (4) be certified by the Commissioner of Education as an
IHO. To be
certified as an IHO, the individual must (1) successfully complete a
training program conducted by the Department of Education, (2) attend
periodic update programs, and (3) annually submit a certification that
the IHO meets the foregoing eligibility requirements. N.Y. Comp. Codes R. &
Regs. tit. 8, §200.1(x).
Each school district is required to maintain a list setting forth the
name of each IHO certified by the Commissioner of Education who is
available to serve in the district. N.Y. Comp. Codes R. &
Regs. tit. 8, §200.1(e). The list is prepared by the New York
State Department of Education for each county so that individual school
districts do not have the discretion to add or subtract names from the
list. An individual IHO may request that his or her name be
removed from the list for a particular school district.
Appointment of IHOs by a school district may only be made from that
district’s list and the appointments are made on a rotating basis
by alphabetical order. N.Y. Comp. Codes R. & Regs. tit. 8,
§200.1(e)(ii). If a particular IHO declines appointment or
fails to respond to a request to serve within 24 hours or is unreachable
after reasonable efforts, the next IHO on the list will be offered the
appointment. N.Y. Comp. Codes R. & Regs. tit. 8,
§200.1(e)(ii).
Question One: May a lawyer certified as an IHO also
represent parents of students with disabilities in private
practice?
The inquirer is considering applying to the New York State
Commissioner of Education to be certified as an IHO, but desires to
maintain a current practice of representing parents of students with
disabilities. Although we see no need for a per se prohibition against a lawyer who acts as
an IHO from also representing parents of disabled students before
individual school districts, there are instances in which the inquirer
would be precluded from representing parents of a disabled child in a
particular matter or acting as an IHO.
Representing parents in a school
district which includes the lawyer on its list of certified
IHOs.
DR 1-102(A)(5) provides that a lawyer shall not engage in conduct
that is prejudicial to the administration of justice. Canon 9
exhorts a lawyer to avoid even the appearance of impropriety. EC
8-8 states: “A lawyer who is a public officer . . . should
not engage in activities in which the lawyer’s personal or
professional interests are or foreseeably may be in conflict with the
lawyer’s official duties.” EC 9-1 provides:
“Continuation of the American concept that we are to be governed
by rules of law requires that the people have faith that justice can be
obtained through our legal system. A lawyer should promote public
confidence in our system and in the legal profession.” See also EC 9-2 (improper conduct by lawyers
erodes public confidence in the law); EC 9-4 (public confidence in legal
system undermined by lawyer stating he or she can circumvent procedures
designed to accomplish impartiality); EC 9-6 (every lawyer has a duty to
uphold the integrity of the profession).
For the same lawyer to one day be an adjudicator and the next day be
an advocate in the same school district presents an appearance of
impropriety and is prejudicial to the administration of justice.
The lawyer acting as an IHO is a part-time public official. If the
lawyer could simultaneously represent clients in the same school
district, positions the lawyer advocates for those clients could easily
influence decisions made in the school district as an IHO, thereby
bringing the lawyer’s professional interests in conflict with the
lawyer’s official duties. The lawyer acting as both an
adjudicator and an advocate in the same school district certainly would
diminish the faith of the public that justice could be obtained in that
school district and would not promote public confidence in either our
system of justice or the legal profession. Consequently, if a
lawyer who is on the list of IHOs for a particular county desires to
represent clients in a school district within that county, he should
arrange to have his or her name removed from the list for that school
district.[1]
Related
Proceedings
DR 9-101(B)(1) provides that a lawyer may not represent a private
client in connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee.
Similarly, DR 9-101(B)(3)(a) states that a lawyer serving as a public
officer or employee shall not participate in a matter in which the
lawyer participated personally and substantially while in private
practice. Consequently, a lawyer could not represent the parents
of a child if the lawyer previously was an IHO in a matter in another
school district concerning the same child and disability.
Similarly, a lawyer could not act as an IHO in the matter if in another
school district the lawyer previously represented the parents of the
child regarding his or her disability.
Matters involving other certified
IHOs.
If a lawyer continues to represent parents of disabled students after
being designated an IHO, there will be times when the lawyer will be
representing those parents before other certified IHOs. There will
also be matters in which a lawyer is acting as an IHO when other lawyers
who are designated as IHOs may be representing private clients before
the lawyer. We do not believe it is necessary for a lawyer to
decline to represent a client in a particular matter merely because the
IHO assigned to that matter may have appeared before the lawyer in a
prior matter which is now concluded or may in the future appear before
the lawyer. Similarly, we do not believe it necessary that a
lawyer serving as an IHO recuse himself or herself in a matter merely
because the lawyer appearing on behalf of the parents may in the past
have served or may in the future serve as the IHO in a matter in which
the first lawyer appeared or may appear as the lawyer.
However, it would be impermissible for one lawyer to be hearing a
matter as the IHO when another lawyer in the matter is acting as an IHO
in a matter in which the first lawyer is appearing on behalf of a
party. It similarly would be impermissible for a lawyer to be
representing parents in a hearing if the IHO is appearing before the
lawyer in another matter in which the lawyer is the IHO. DR
5-101(A) provides that, as a general matter, a lawyer shall not accept
or continue employment if the exercise of the lawyer’s
professional judgment on behalf of the client will be or reasonably may
be affected by the lawyer’s own business or personal
interests. DR 8-101(A)(2) states that a lawyer holding public
office shall not use the public position to influence or attempt to
influence a tribunal to act in favor of a client and Canon 9 states that
a lawyer should avoid even the appearance of professional
impropriety. Even though both lawyers may be of the highest
integrity, the appearance of each acting as a judge while the other is
acting as a lawyer in concurrent matters is too unseemly.
In such cases, it would be best for the IHO in the matter arising
second to decline the matter so the private client need not find new
counsel for the hearing.
Question Two: May a lawyer utilize the IHO
certification in advertising?
It would not be improper for a lawyer to advertise certification as
an IHO provided that the advertising is not false, deceptive or
misleading. See DR
2-101(A).
DR 9-101(C) prohibits a lawyer from stating or
implying that the lawyer is able to influence improperly or upon
irrelevant grounds any tribunal or public
official. Consequently, it would be
improper for the lawyer to imply to any private client, whether through
advertising or otherwise, that the lawyer’s designation as an IHO
would enable the lawyer in any way to influence a school district or
another IHO.
CONCLUSION
1. A lawyer certified as an IHO by the New York State
Commissioner of Education to hear disputes between school districts and
parents of students with disabilities regarding the identification,
evaluation, or educational placement of students with disabilities may
also in private practice represent the parents of students with
disabilities in such hearings, but not (a) in any school district in
which the lawyer acts as an IHO, (b) if the lawyer previously acted as
an IHO in another school district concerning the same child and
disability, or (c) in any matter in which the IHO is concurrently
appearing as a lawyer in a matter in which the inquiring lawyer is
acting as the IHO.
2. A lawyer may use in advertising the fact that the lawyer has
been certified as an IHO.
(34-02)
[1] The Code of Judicial Conduct prohibits a part-time judge from
practicing law in the court on which he or she serves, N.Y. Comp. Codes
R. & Regs. tit. 22, §100.6(B)(2). However, the Code of Judicial
Conduct does not apply “to administrative law
judges unless adopted by the rules of the employing
agency”, N.Y. Comp. Codes R. & Regs.
tit. 22, §100.6(C) (emphasis added). It is uncertain (1) if the
term “administrative law judge” as used in the Code of
Judicial Conduct encompasses IHOs certified by the Commissioner of
Education, and (2) whether the Department of Education or the school
district is the “employing agency” of
IHOs. In any event, we are unaware of
either the Department of Education or any school district having adopted
the Code of Judicial Conduct. If the
Code of Judicial Conduct is applicable, we believe that the group of all
individuals certified by the Commissioner of Education to be IHOs does
not constitute a “court” thereunder but that the group of
IHOs designated on a list maintained by a particular school district
does constitute a “court.” See N.Y. State 543 (1982) (neither attorney who serves as hearing
officer in proceedings to review small claims real property tax
assessments nor the attorney’s firm may represent private clients
in such proceedings in the same jurisdiction); N.Y. Comp. Codes R. &
Regs. tit. 22, §122.10(c), (d). Consequently, we would reach
the same result under the Code of Judicial Conduct as we do under the
Code of Professional Responsibility.
Related Files
Opinion 767 (Adobe PDF File)
|
