Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
|
May an attorney representing a party at a conference between an injured worker and employer conducted by a rehabilitation consultant for the State Rehabilitation Bureau communicate ex parte with the consultant during the pendency of the proceeding?
It is not a violation of the California Rules of Professional Conduct for an attorney to communicate ex parte with a rehabilitation consultant during the pendency of such proceeding. A rehabilitation consultant is not a "judge or judicial official" as used in California Rule of Professional Conduct 7-105(B) and therefore that rule's prohibition against ex parte communications would not be applicable.
Rule 7-108(B) of the Rules of Professional Conduct of the State Bar of California.
Rule of Professional Conduct 7-108(B) provides in pertinent part as follows:
A member of the State Bar shall not directly or indirectly in the absence of opposing counsel, communicate with or argue to a judge or judicial officer, upon the merits of a contested matter pending before such judge or judicial officer, except in open court; nor shall he, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or judicial officer concerning the merits of a contested matter pending before such judge or judicial officer. The rule shall not apply to ex parte matters.
Under the above-quoted rule, the prohibition against ex parte communications applies only to those communications with "a judge or judicial officer." We must determine, therefore, whether a rehabilitation consultant is, for some or all purposes of rule 7-108(B), "a judge or judicial officer."
This Committee recently considered a similar question in the context of administrative hearing officers and agency heads. In Formal Opinion No. 1984-82 the Committee addressed whether hearing officers (administrative law judges) or agency heads constitute "judges" or "judicial officers" within the meaning of rule 7-108(B). After noting the judicial nature of the functions performed by administrative hearing officers under the Administrative Procedures Act (Gov. Code, 11500 et seq.) and evaluating the due process considerations involved, (Fremont Indemnity Company v. Workers Compensation Appeals Board (1984) 153 Cal.App. 3d 964 [200 Cal.Rptr. 762]), the Committee concluded that "a hearing officer should be considered a 'judge or judicial officer' within the meaning of rule 7-108(B) . . . and that the underlying policy considerations compel application of the rule to ex parte communications with such officers."
The Committee recognized the need for an unimpeded normal working relationship between the agency and its staff attorney and declined to find that such persons are, for all purposes, acting as "judges or judicial officers" within the meaning of those terms as used in rule 7-108(B). However, it did find that under certain circumstances, an agency head is performing functions equivalent to a judge or judicial officer and would then be subject to the rule (e.g., during the limited period of time when the case is pending decision before that official or when the adoption, modification, or rejection of the proposed decision is under consideration).
An evaluation of the nature of the functions of rehabilitation consultants reveals little, if any similarity to those of a hearing officer or administrative law judge. Qualifications and duties for any sort of hearing officer may be established by statutory law. If no statutory requirements exist, then any person may be qualified to serve as a hearing officer so long as he or she is impartial. While the California Legislature has enacted a comprehensive statutory scheme governing the functions of hearing officers and adjudicatory proceedings held pursuant to the Administrative Procedure Act (Gov. Code, 11500 et seq.), the functions of a rehabilitation consultant are not a matter of statute; rather agency practice including the functions of the consultants responsible for presiding over conferences have been defined by internal regulations promulgated by the Rehabilitation Bureau.
Under those regulations, the functions of a rehabilitation consultant differ substantially and are less judicial than either a hearing officer or an agency head. In the conferences with the parties, a consultant neither acts nor is intended to act as a hearing officer during an adjudicatory proceeding. The purpose of the conferences is "to promote informal administrative solutions to problems or disputes between the parties and encourage participation and open communications between the parties." (Rehabilitation Bureau Regulation 8-60-04.) Thus, no oaths are administered, rules of evidence are not invoked and court reporters are flatly prohibited; the consultant must decline a conference if a party requests a reporter. Moreover, since the consultant's decision is non-binding, if appealed, the appellant is automatically entitled to a trial de novo.
The thrust of these regulations is to emphasize a conciliatory rather than adversary posture which will facilitate compromise over confrontation, rendering the subject conferences less like a hearing and more like an informal meeting. This is borne out by regulation 8-60-11 of the regulations which provides:
The Bureau will encourage and engage in communications with and between the parties which facilitate the expeditious return of injured worker's to suitable gainful employment and the expeditious and equitable resolution of disputed rehabilitation issues and problems. The Bureau will receive and/or provide information relevant to rehabilitation issues to/or from the parties both jointly and severally in a consistent [sic] objective manner.
The Bureau will not engage in prejudicial communications or base its determination on information not available to all parties. (Emphasis added.)
This latter section does not expressly limit or prohibit ex parte communications. While it requires that information be received in an objective manner and that communications not be prejudicial, these requirements, lacking more specific definition, do not appear to be tantamount to a prohibition on ex parte communications. Likewise, the prohibition proscribing consultant from basing a decision on information which is not available to other parties, does expressly ban ex parte communications or render them unethical since it seeks to regulate the conduct of the consultant rather than the attorneys.1 At most, that prohibition could serve as grounds for appeal if a decision were based on ex parte communications not available to the other party.
The case of Fremont Indemnity Company v. Workers Compensation Appeals Board, supra, 153 Cal.App.3d 964 supports our analysis as to rehabilitation consultants. In that case, the court determined that referees appointed by the Workers Compensation Appeals Board (hereinafter "WCAB") to be judges or judicial officers for purposes of the Code of Judicial Conduct which forbids ex parte communications. The functions of consultants are separate and distinct from WCAB referees, Although both are under the jurisdiction of the WCAB, rehabilitation consultants are appointed by the Director of the Rehabilitation Bureau pursuant to Labor Code section 139.5 which authorizes the appointment of "appropriate professional staff" and are not appointed pursuant to Labor Code section 5310, which authorizes the WCAB to appoint referees, whose status as judicial officers has been judicially established. (Fremont Indemnity Company v. Workers Compensation Appeals Board, supra, 153 Cal.App.3d 964.) Both positions are distinct in terms of authority and duties as reflected in the general enabling legislation for each found respectively in Labor Code sections 5310 and 139.5 which provide in pertinent part as follows:
The [workers compensation] appeals board may appoint one or more referees in any proceedings, as it may deem necessary or advisable . . . The administrative director may appoint general referees. Any referee appointed by the administrative director has the powers, jurisdiction, and authority granted by law, order of appointment, and by the rules of the appeals board.
* * *
The administrative director [of the Rehabilitation Bureau] shall establish within the Division of Industrial Accidents a rehabilitation unit, which shall include appropriate professional staff, and which shall have all of the following duties:
To foster, review, and approve rehabilitation plans developed by a qualified rehabilitation representative of the employer, insurance carrier, state agency or employee ....
While referees function pursuant to a broad legislative mandate of adjudicatory powers, rehabilitation consultants exercise more limited discretionary powers of review and approval of rehabilitation plans. The functions of referees therefore are more characteristic of those of an APA hearing officer since they are authorized to conduct hearings, render findings, orders, decisions and awards, administer oaths and issue subpoenas, all of which are judicial or quasi-judicial powers' (Cf. Cal. Code of Jud. Conduct, canon 3 (A) (4).)2 On the other hand, consultants are "staff" and by order of statute, under the line authority of the Director of the Bureau and consequently, distinct from referees.
As further support for our conclusion, under Evidence Code section 703.5, no person presiding at any judicial or quasi-judicial proceeding shall be competent to testify in any subsequent civil proceeding as to any statement or conduct occurring at the prior proceeding. Regulation 8-60-10 of the Rehabilitation Bureau Regulations requires that a rehabilitation consultant respond to all questions posed by a workers compensation judge pertaining to Bureau actions, decisions and the rationale for them in cases which are appealed to the Board. If a rehabilitation consultant were equivalent to a hearing officer, regulation 8-60-10 would conflict with Evidence Code section 703.5 since consultants would be required to testify on issues otherwise barred by the Evidence Code.
This opinion is issued by the Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
*Reference hereafter to ex parte communications shall not include such communications in ex parte matters.
1 We do not purport to interpret the administrative intent of regulation 8-60-11. That is a function appropriate to the Department of Rehabilitation, the administrative agency which promulgated the regulation.
2 Canon 3 (A) (4) of the California Code of Judicial Conduct provides as follows:
A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communication concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties member of the State Bar.
| . |