Appellate Court Holds that Due Process Prevents Partners From the Same Law Firm From Serving as Adviser and Advocate on Contested Hearings
The Second District Court of Appeal, in Sabey v. City of Pomona (B239916), remanded a decision related to discipline of a police officer on the basis that his due process rights were violated when one partner from a law firm represented the Police Department in the officer’s arbitration matter, and a different partner from the same firm represented the city council in the officer’s appeal of his termination. Even though there was no evidence of bias, the court believed the risk of bias, when two partners from the same firm were involved in different levels of the contested hearing, “too high to be acceptable under constitutional principles.” As explained by the court, “[t]he rule we announce is simple. Agencies are barred from using a partner in a law firm as an advocate in a contested matter and another partner from the same law firm as an advisor to the decision maker in the same matter.”
Due process requires impartiality in administrative hearings, and prevents an attorney from performing dual roles in contested quasi-judicial hearings such as administrative, disciplinary or code enforcement hearings. Based on that principle, agencies have used one attorney to represent the agency in an administrative hearing, while allowing another attorney to represent the board that reviews the decision stemming from that hearing. This approach was permissible as long as there existed “assurances that the adviser for the decision maker is screened from any inappropriate contact with the advocate.” (Howitt v. Superior Court (1992) 3 Cal.App.4th 1575.) “Ethical walls” were set up by law firms in order to comply with Howitt and to ensure an attorney did not communicate about the matter or access the files of the other attorney participating in the matter.
The Sabey decision eliminates the ability of partners in private law firms from relying on Howitt, finding that unlike government attorneys who are directly employed by the agency, partners in a private law firm are fiduciaries who have incentives to increase business and to build the reputation of their employing firm. According to the court, when a partner reviews a decision of the lower body represented by a partner, the attorney “consciously or unconsciously” may seek to validate the job done by his/her partner. The Sabey decision does not impact attorneys who are direct employees of local agencies from relying on Howitt and setting up ethical walls. The Sabey court did not address the ethical duty each attorney has to his/her clients.
The Sabey court relies on the fact the two attorneys in this matter were “partners” in a law firm, and based on general business principles of “partnership,” each partner owed a fiduciary duty of loyalty and care to the other partner. However, regardless of an attorney’s title with a private law firm, this due process argument is likely to be raised by permit applicants, employees subject to discipline and other members of the public when attorneys from the same firm participate in two capacities in a contested quasi-judicial matter.