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