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Administrative Law Judge Advisory Opinions

INDEX to ALJ ADVISORY OPINIONS

2006-01 TO 2009-01

DEFINITION OF ADMINISTRATIVE LAW JUDGE

2006-02 Although not an ALJ by job title, a hearing examiner or grievance evaluator, whose job description requires him/her to: adjudicate administrative hearings; research cases; review physical, financial or employment information; draft decisions; and make decisions based on admissible evidence, is an ALJ and subject to the Code of Conduct.

2008-01 & 2008-02  Although an ALJ by job title, attorney whose sole responsibility is to mediate cases is not subject to the Code of Conduct.  The attorney will not conduct hearings, adjudicate contested matters, make recommended findings of facts or conclusions of law, or issue judicial decisions

JURISDICTION

2006-02 Although not an ALJ by job title, a hearing examiner or grievance evaluator, whose job description requires him/her to: adjudicate administrative hearings; research cases; review physical, financial or employment information; draft decisions; and make decisions based on admissible evidence, is an ALJ and subject to the Code of Conduct

2008-1 & 2008-02 The Code of Conduct applies to contractors. 

2008-01 & 2008-02  Although an ALJ by job title, attorney whose sole responsibility is to mediate cases is not subject to the Code of Conduct.  The attorney will not conduct hearings, adjudicate contested matters, make recommended findings of facts or conclusions of law, or issue judicial decisions. 

OUTSIDE PRACTICE OF LAW

2006-01 ALJ may engage in the outside practice of law with certain conditions

2007-01 ALJ may engage in the outside practice of law so long as he does not allow his private practice to take precedence over his judicial duties

2007-01  ALJ may engage in the outside practice of law with certain conditions so as to avoid any conflict of interest

2007-01  ALJ may engage in the outside practice of law with certain conditions so as to avoid the use of public resources for private gain.

 2008-01 & 2008-02  Although an ALJ by job title, attorney whose sole responsibility is to mediate cases faces no restrictions on outside practice of law.  As with all mediations, however, should a case involving an employer or client arise, disclosure and recusal is required.

 2008-02         ALJ who divests herself of her practice of representing public employees may adjudicate cases for the state agency before which her former clients’ cases are pending without delay, with certain conditions so as to avoid any conflict of interest.

 2008-02         ALJ may engage in the outside practice of law so long as she does not practice before the employing state agency.

 2008-02         ALJ may engage in the outside practice of law so long as she does not accept the representation of a client who is a party before the state agency if there is a likelihood that such person will appear before the agency.   

CONFLICT OF INTEREST / RECUSAL

2006-01 When engaged in the outside practice of law and/or in volunteer/pro bono services, ALJ must take steps to avoid conflict of interest and recuse himself from presiding over cases involving his former or present clients, attorneys with whom he practiced within the past two years, and attorneys to whom he referred, or from whom he received referral of a case.

2006-02 ALJ whose sister works: for the same agency, is the agency’s representative at the hearing over which the ALJ presides, and whose decision the ALJ reviews must recuse himself from presiding over such cases.

2006-02 For purposes of Rule 4.3.d.1.E, the following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece.

2006-02 ALJ with actual bias or prejudice concerning a party, a party’s lawyer or a party’s representative shall disqualify her/himself.

2006-02 The fact that an ALJ’s impartiality might reasonably be questioned may require her/his disqualification.

2007-01  When engaged in the outside practice of law, ALJ must take steps to avoid conflict of interest and recuse himself from cases that involve attorneys, within the last two years with whom he practiced; against whom he practiced; to whom he referred a case; or from whom he received referral of a case.

2007-01  Since the ALJ presides over matters involving governmental employers, in his private practice the ALJ must not practice before any state agency, department, board, commission, college, university, institution, state board of education, department of education, county board of education, regional educational service agency or multi-county vocational center.

2008-02         An attorney who divests herself of her practice of representing public employees may preside over cases for the state agency before which her former clients’ cases are pending under the condition that she recuse herself from hearing any cases:   that involve attorneys within the last two years; with whom she practiced; against whom she practiced; to whom she referred a case; or from whom she received referral of a case; SEQ CHAPTER \h \r 1 in which a former or present client is a party; and in which she or an associate served as a lawyer in the case. 

 

REFERRALS

2006-01 ALJ’s contracts for the payment and acceptance of referral fees before the effective date of the Code of Conduct, coupled with his stated intention to discontinue such practice, render moot the question of whether the payment and acceptance of such referral fees violate the Code of Conduct.

2007-01  The Ethics Commission may refer inquiring ALJs to the WV State Bar for advice concerning compliance with the Rules of Professional Conduct.

RELIABLE SOURCES

2006-02 Although not bound by decisions of the Judicial Investigation Commission, the Ethics Commission may look to them for guidance.

REVOLVING DOOR

2008-02         There is no revolving door provision in the Code of Conduct.  An attorney who divests herself of her practice of representing public employees may adjudicate cases for the state agency before which her former clients’ cases are pending without delay, with certain conditions so as to avoid any conflict of interest.

MEDIATION

2008-01 & 2008-02  Mediation assists the parties in identifying, clarifying and resolving issues regarding a grievance at any stage of the grievance process.  A mediator does not conduct hearings, adjudicate contested matters, make recommended findings of facts or conclusions of law, or issue judicial decisions.

MISCELLANEOUS

2007-01   An employer may impose more stringent requirements on its ALJs than those set forth in the Code of conduct for ALJs.


View issued opinions in their entirety by clicking the links below (. PDF format ) 

 ALJ AO 2006-01 issued May 4, 2006

 ALJ AO 2006-02 issued October 5, 2006

ALJ AO 2007-01 issued November 1, 2007

ALJ AO 2008-01 issued September 4, 2008

ALJ AO 2008-02 issued September 4, 2008

ALJ  AO 2009-01 issued February 4, 2010

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