Chasing the Atticus Code - Preserving Adjudication Integrity in Local Administrative Hearings
31 J. Nat'l Assn. Admin. L. Judiciary 443 (2011)
32 Pages Posted: 5 Dec 2010 Last revised: 11 Apr 2017
Date Written: March 14, 2011
In the United States administrative law realm, there purportedly exist more than 19 thousand municipal governments and 16 thousand town or township governments, together with three thousand county governments, 13 thousand school districts and 35 thousand special-district governments. This essay argues that these local adjudicative environments ignore ethically guiding or directing lawyers serving in government-official capacities while not holding elected nor judicial positions. For this paper, I dub these hired (or volunteer) attorney decision-makers “Atticus.” Citizens support the notion of external codes of professional responsibility for such persons not necessarily because they believe that “lawyering rules” are well-fashioned or appropriately enforced. External codes are popular where citizens doubt lawyers truly are self – governing in ways promoting fairness or advancing basic cultural values. The failure of the attorney regulatory process may especially be acutely felt in this local government administrative realm. There, attorneys adjudicate through informal administrative hearing processes while serving as unelected and sometimes ad-hoc temporary officials. Some citizens are intimately acquainted with those processes as direct participants, but many are not familiar with these processes or how they are intended to function, much less how the adjudicators are selected.
In these 90,000 such local jurisdictions, attorneys act as hearing officers in a variety of roles across many regulatory realms.. Some are independent contractors while others volunteer their services. Irrespective of compensation, however, I argue in this essay that, in a “non-counselor” role, traditional codes of attorney professional conduct are inapplicable to Atticus, creating potential for mischief. This risk is heightened by the failure of many communities to adopt standards of ethical behavior applicable to these contractors or volunteers. I argue that, in many instances, the lone governing ethic affecting such lawyers’ behavior in their hearing officers’ roles is oaths of admission they took as part of their licenses to practice at the bar. These oaths, sworn as a final act in bar admission, are marginalized (if not ignored altogether) in considering appropriate lawyer professional conduct where representing traditional clients is not involved. Ultimately, I recommend ways for communities and state supreme courts to implement standards appropriate for the attorney's role as local adjudicator that provide individual guidance while concurrently satisfying public expectations for their communities' local adjudicative leadership.
Keywords: Ethics, Hearing Officers, Administrative Law, Administrative Adjudication, Local Government, Municipal Government, Land Use, Medical Marijuana, Zoning, Regulatory Hearing, Professional Responsibility, Professional Ethics, Public Administration, oath of admission
JEL Classification: K23, R52
Suggested Citation: Suggested Citation