• California Supreme Court Rejects Ruling Against Attorneys' Dual Roles in Different Administrative Hearings
  • March 5, 2009
  • Law Firm: Best Best & Krieger LLP - Riverside Office
  • The California Supreme Court this week rejected a so-called “bright-line rule” that prevents attorneys from acting as advisor and prosecutor simultaneously before a state or local administrative body in different hearings.  (Morongo Band of Mission Indians v. State Water Resources Control Board, February 9, 2009, S155589). This is the latest decision in the Quintero v. City of Santa Ana line of cases discussing when permitting a public agency attorney to act in both capacities creates an unacceptable risk of bias.

    The decision stems from a State Water Resources Control Board (“State Board”) hearing held to consider the proposed revocation of a water rights license held by the Morongo tribe near Cabazon. The public agency attorney acting as the prosecutor in the Morongo case was also advising the State Board in a separate proceeding. Arguing this raised Quintero concerns, the tribe attempted to disqualify the attorney for acting simultaneously as a State Board prosecutor and advisor. The Court of Appeal held a bright-line rule exists in these cases, and the appearance of bias prevents attorneys from acting in both capacities at the same time.

    The state Supreme Court reversed the Court of Appeal, clarifying that the appropriate test is whether - based on the “totality of the circumstances” - allowing an attorney to act as both an advisor and prosecutor would create an unacceptable risk of bias.  In doing so, the Court disapproved of any language in the Quintero decision that indicated bright-line rules might exist. Accordingly, courts will evaluate these situations on a case-by-case basis and examine their unique facts. 

    The state Supreme Court noted that facts indicating the attorney had acted as both an advisor and prosecutor in the same case or that the attorney was the administrative body’s sole or primary advisor might create an unacceptable risk of bias.

    On the other hand, facts indicating the attorney was merely one of a group of attorneys advising the administrative body or that the attorney had limited experience advising the body might weigh against finding an unacceptable risk of bias.  In addition, it is clear that attorneys within the same firm or office may continue to act in both an advisory and prosecutorial capacity on the same case as long as adequate barriers exist to prevent improper communications between or among them.