ethical issues in state utility commission proceedings
Post on 21-Jun-2015
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Ethical Issues In State Utility
Commission Proceedings
Richard J. Johnson
Moss & Barnett
Summary
• Purpose: to present a reminder of basics
• Topics – Conflicts
– Ex parte contacts
– Contacts with represented intervenors
• Key points – Complying with rules vs. client relations
– Consents are needed and cure most conflicts
– Local practice is key to managing contacts
Conflicts
• ABA Model Rule 1.7
– Consent is key
– Addresses rules and client relations
• Situations that are not a conflict
– Utility law firm represents utility customers in other matters
• Applies to virtually all firms
• Analysis similar to large class actions
Possible Direct Conflicts
• Utility law firm represents intervening utility customers in other matters
– Conflict may depend on identity of intervenor
– Size of group and role of customer-client
• Attorney for customer group whose members have conflicting interests
– Cost allocations
Positional or Issue Conflicts
• Advocating for different sides of an issue
– Representing customer groups and utilities.
– Representing different customer groups
– Representing different utilities
• Comment 24 criteria
– Same or different forums and times
– Degree of difference in positions
– Significance of issue
“Imposed” Conflicts
• Utility attorney with customer clients who intervene unexpectedly – Scope of intervention re adversity
• Utility attorney with other utility clients who may intervene – Degree of adversity, consent
• Significance of unforeseeable changes – Restrictions may be lessened
Ex parte and other restrictions
• ABA Model Rule 3.5, Agency ex parte rules – Disclosure as a typical remedy
• Agency codes of conduct, ethical codes – Personal financial interests
• “Routine” ex parte issues during advocacy – Advocacy vs. advisory functions
– Procedural vs. substantive topics
– Hearings directly before commissioners
Ex parte and other restrictions
• ABA Model Rule 4.2
– Advocacy policy makers vs. witnesses
– Limits on attorneys vs. regulatory department personnel
• Attorney-directed contacts prohibited
– ABA Model Rule 8.4(a) and Rule 4.2, comment 4
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