Opinion 2005-4
(April 2005)

The inquirer is an attorney who has been serving as a Pennsylvania Unemployment Compensation Referee with the Pennsylvania Department of Labor and Industry for a period of one (1) year. He would like to resign as Referee and resume the practice of law.1 Previously, the inquirer's practice has included only Pennsylvania workers compensation and unemployment compensation law.2 The inquirer is concerned that Rule 1.12 would preclude the practice of law in the substantive areas of workers compensation and unemployment compensation. He advises that non-attorneys are permitted to serve as workers compensation and unemployment compensation referees under some circumstances and notes that the conflict of interest rules would not apply to a non-attorney who has resigned as a Referee.

The inquirer has the following questions.

  1. Is the inquirer precluded or restricted from practice in unemployment compensation or workers compensation matters immediately upon resignation from his current Referee position?
  2. Do the Pennsylvania Rules of Professional Conduct (the "Rules") pertaining to negotiating for private employment while a government employee apply to the inquirer's situation?
  3. Is the inquirer precluded or restricted from practice in unemployment compensation or workers compensation matters while serving as Referee?

Rule 1.12 provides that:

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, third-party neutral (including arbitrator or mediator) or law clerk to such a person, unless all parties to the proceeding give informed consent.

(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or third-party neutral. A lawyer serving as a law clerk to a judge, other adjudicative officer or third-party neutral may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, other adjudicative officer or third-party neutral.

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which the lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule.

(d) An arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party.

Comment (2) to Rule 1.12 provides that:

Like former judges, lawyers who have served as arbitrators, mediators or other third-party neutrals may be asked to represent a client in a matter in which the lawyer participated personally and substantially. This Rule forbids such representation unless all of the parties give their informed consent. See Rule 1.0(e). Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. See Rule 2.4. [Lawyer Serving as Third-Party Neutral]

As regards the inquirer's first question, the Committee advises that he is precluded under Rule 1.12 from representing anyone in connection with a matter in which the inquirer participated personally and substantially in his capacity as Referee. However, as per Rule 1.12a and Comment 2, if informed consent is obtained from all the parties to the proceeding this limitation does not apply. The Committee draws the inquirer's attention to the fact that if he is disqualified under Rule 1.12(a) and the exception within that rule does not apply, the other lawyers in the inquirer's law firm (if the inquirer is not a sole practitioner), are also disqualified unless there is proper screening and notice in accordance with 1.12(c)(1) and (2).

The Committee finds that the quantity of elapsed time between involvement in a matter as a Referee and involvement as an advocate is immaterial to this inquiry. The prohibitions in Rule 1.12 would result in the same answer whether the inquirer sought to engage in prohibited conduct immediately upon resignation from the Referee position or a significant length of time thereafter. The Committee also notes that because the inquirer is a licensed attorney (assuming within the Commonwealth of Pennsylvania) that any analysis applicable to non-lawyers is irrelevant to the inquiry.

Turning to the inquirer's second question, the rules pertaining to negotiating for private employment do apply to the inquirer. However, as per Rule 1.12(b), the inquirer is only precluded from negotiating for employment with a person who is involved as a party or as a lawyer for a party during the period of time in which the matter is pending or proceeding before the inquirer as a Referee. Once the matter has concluded, the inquirer is not precluded from negotiating for employment with such a person.

The inquirer's final question is not directly addressed in the Rules. Since a Referee is also a public employee, Rule 1.11d(1) applies as far as the inquirer's personal ethical obligations. That Rule states,

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee

(1) is subject to Rules 1.7 and 1.9.

However, it is likely that Department of Labor and Industry policy would consider the proposed representation to be a conflict of interest on a number of levels and preclude this possibility. The Committee strongly urges the inquirer to review state ethics rules and all rules and policies promulgated by the Department of Labor and Industry with regard to the question of simultaneous employment as a Referee and acting as an advocate in such administrative matters.

Notes

1. It is unclear from the facts whether the inquirer intends to practice in the public sector or private sector. The inquirer states only that the inquirer "--was a practicing WC attorney for about 6 years prior to taking the UC Referee post." This opinion assumes the inquirer seeks to resume practice in the private sector.

2. The inquirerÂ’s comment suggests that he does not intend to practice law in substantive areas other than workers compensation or unemployment compensation.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.