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In re Petition for Review of Opinion No. 583 of Advisory Committee on Professional Ethics

Decided: June 15, 1987.

IN THE MATTER OF PETITION FOR REVIEW OF OPINION NO. 583 OF THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS


On petition for review of an opinion of the Advisory Committee on Professional Ethics.

For modification -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

In response to an inquiry by the Medical Society of New Jersey, the Advisory Committee on Professional Ethics (Committee) issued Opinion No. 583, 117 N.J.L.J. 395 (1986), to address the propriety of ex parte communications between a Deputy Attorney General (DAG) who is prosecuting an administrative matter at the Office of Administrative Law (OAL), and the head of the administrative agency involved in the proceeding. Noting that the agency head will ultimately sit in judgment over the matter if it is not settled, the Committee concluded that all such ex parte communications between a DAG and an agency head in this context were improper and in violation of Rule of Professional Conduct 3.5. The Committee also found that it was improper for another DAG within the same division who shares an office with the prosecuting attorney to engage in such ex parte communication. We share the Committee's concern regarding potential conflicts that may arise where an agency head is both the "client" and the ultimate arbiter in the same proceeding. However, we hold that for limited purposes, ex parte communications are permissible between DAGs and agency heads while cases are being heard at the OAL. Accordingly, we modify Opinion 583.

I

The conflict at issue here arises out of the variety of roles performed by Deputy Attorneys General in administrative proceedings. A DAG's duties are defined in N.J.S.A. 52:17A-4(e), which provides that the Division of Law shall

[a]ct as the sole legal adviser, attorney or counsel * * * for all officers, departments, boards, bodies, commissions and instrumentalities of the State Government * * *.

When an agency is performing both prosecutorial and adjudicative functions in the same proceeding, the Attorney General's office appoints one DAG to serve as prosecutor and also provides counsel to advise the agency head in his adjudicative capacity. The issue before us is whether the impartiality of the

agency head would be impermissibly undermined if the prosecuting DAG were permitted to communicate ex parte with the agency head during the prosecutorial phase of the proceeding.

In 1978, the Legislature established the Office of Administrative Law in order to foster impartiality in administrative proceedings. L. 1978, c. 67. See In re Uniform Admin. Procedure Rules, 90 N.J. 85, 90-91 (1982) ("[T]he legislative goal in creating this new governmental office was to promote uniformity, efficiency, consistency, fairness, competence, and, most importantly, independence in the conduct of administrative hearings before State agencies."); cf. Mazza v. Cavicchia, 15 N.J. 498, 535-36 (1954) (Jacobs, J., dissenting) ("The most persistent criticism [of administrative process is] the continued legislative policy of concentrating, in a single administrator, wide powers of investigation, prosecution, hearing and determination * * *. [T]here are those who believe that without a corps of independent hearers * * * the basic problem will not be met despite such procedural gloss as may be imposed from time to time."). The OAL is an independent agency within the Department of State. N.J.S.A. 52:14F-1. It is comprised of Administrative Law Judges (ALJs) who are appointed by the Governor with the advice and consent of the Senate. N.J.S.A. 52:14F-4. Generally, when an adjudicative proceeding before a state agency is contested, see N.J.S.A. 52:14B-2(b), it is transferred to an ALJ designated by the Director of the OAL. N.J.S.A. 52:14B-10(c); see also N.J.S.A. 52:14F-8 (listing exceptions to general rule). The ALJ conducts hearings and issues a report and decision with recommended findings of fact and conclusions of law. N.J.S.A. 52:14B-10(c). This report is then reviewed by the head of the agency, who "shall adopt, reject or modify" it within forty-five days. Id. The agency head must base the final decision solely on the record established at the hearing. N.J.S.A. 52:14B-10(d). If the agency head does not act within forty-five days, the report is deemed to have been adopted. N.J.S.A. 52:14B-10(c).

As the attorney for the administrative agency, a DAG represents the agency in proceedings before the ALJ. During the course of those proceedings, the need may arise for the DAG to consult his client. For example, the DAG may be approached regarding the possibility of settlement. The issue then becomes whether a DAG in that situation may consult the agency head to determine the agency's position despite the fact that the agency head will ultimately decide the case if it is not settled. This is the issue raised in Opinion 583. As the Advisory Committee explained:

The inquirer states that:

"In administrative agencies, especially the professional boards, it is the head of the agency (i.e. President of the Board of Medical Examiners) who is consulted with respect to offers to [ sic ] settlement in disciplinary proceedings involving a licensee of the agency. This agency head sits in judgment over ...


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