117 N.J.L.J. 395
March 27, 1986
Ex parte Communications
with Professional Boards
in Disciplinary Proceedings
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
settlement in disciplinary proceedings involving a licensee of the
agency. This agency head sits in judgment over matters which are
ultimately not settled and is, therefore, a quasi-judicial
The first inquiry seeks to determine the propriety of a Deputy Attorney General (DAG), who is involved in prosecuting the matter before the agency, making ex parte contact with the agency head to determine the acceptability of a particular settlement or the agency's position on settlement. The first issue is whether the DAG who is prosecuting a matter before an agency may have ex parte communication with the agency head regarding issues in the matter.
Related to the issue of the prosecuting DAG engaging in such ex parte communication, is the situation where another DAG, from the same division of the Attorney General's office as the prosecuting attorney, who acts as a prosecutor in other cases which come before the agency and who shares the same office with the prosecuting attorney, engages, in similar ex parte communication.
In our opinion, both of the above inquiries are answered by RPC 3.5, which provides in part as follows:
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;
(b) communicate ex parte with such a person except as permitted by law;
We hold that in both instances, ex parte communications in the above instances violate the provisions of RPC 3.5(a) and (b) and are improper.
The California State Bar Standing Committee on Professional Responsibility and Conduct, Opinion 1984-82 held that:
... when an agency has elected to have the case heard before the agency itself, the agency head is performing functions equivalent to a judge or judicial officer, and must be considered a judicial officer within the meaning of 7-108(B)... Furthermore, 7-108(B) applies to communications with the agency head during the limited period when the adoption, modification, or rejection of the proposed decision of the hearing officer is under consideration. Neither the trial attorney for the agency nor the attorney for the interested party should communicate with an agency head with respect to the case during these periods....
In our view, an agency head or hearing officer is a judicial officer or equivalent to a judge and that ex parte communications with that officer are improper. We subscribe to the holding of the above cited California opinion.