Ethics and Law: Understanding the Role of Government and Private Attorneys in Administrative Hearings


Ethicsbooks

Most attorneys have limited knowledge about the administrative process, despite how pervasively agencies at the state and local level regulate one’s everyday life. As a result, attorneys who represent a client before administrative agencies are often unprepared for what an administrative hearing may entail, resulting in poor representation for his or her client.

Administrative law is the procedure created by administrative agencies, which are governmental bodies of the city, county, state, or federal government. These procedures include licenses for professionals, such as a license to practice medicine, as well as the regulation of permits, applications, and other rules and regulations. Generally, the regulations of multiple administrative agencies, such as state and county, overlap with one another.

In a hearing before the Tennessee Board of Medical Examiners, for example, an attorney needs to be knowledgeable about not only the rules of evidence, but also the Uniform Administrative Procedures Act, the Rules of the Tennessee State Board of Medical Examiners, the body of case law consisting of Opinions from the Administrative Procedures Division, and the Uniform Rules of the Department of State Administrative Procedures Division.

Additionally, if an attorney represents a client before a city or county, the attorney also needs to be aware of the local rules governing the proceeding, including any internal rules in a particular department, for example, the Human Resources Rules for the County Police Department when representing a client appealing their employment suspension.

Government attorneys who represent an administrative agency such as the Tennessee Department of Health are well versed in the agency and state rules governing a proceeding, but they have the ethical dilemma of determining who their client is at any given moment. Agency attorneys often act as prosecutors, for example, pursuing a claim of overprescribing against a physician and presenting proof of his misconduct at a Board of Medical Examiners hearing. In a prosecutorial role, the agency attorney’s client is the agency head or commissioner, whose role is to protect and provide for the health of the citizenry. Agency attorneys also serve in advisory roles, advising boards on rule interpretation and creation. In this role, the agency attorney’s client is the board, though his or her interests should still align with the commissioner of the agency.

Awareness of the roles and obligations of government and private attorneys in administrative hearings is critical for those who engage in proceedings before an administrative board. For private attorneys, the importance of knowing how to ethically represent one’s client before an administrative hearing can make the vital difference in preserving a client’s ability to continue working in their chosen profession.