Baylor Law Professor's Analysis Imbedded in Controversial Texas Ethics Opinion

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A Baylor Law School professor's memorandum has provided support for an important ruling of the Texas Professional Ethics Committee of the State Bar of Texas.

The Professional Ethics Committee of the State Bar of Texas issued Opinion No. 587 in May, concerned with Rule 3.05 of the Texas Disciplinary Rules of Professional Conduct for lawyers practicing in the State of Texas. The specific issue concerns whether a lawyer, who plans to file a matter with a state administrative agency that has decision-making authority over that matter, could ethically communicate with the decision makers in that agency before the petition was formally filed with the agency.

The communication with the agency decision makers would be instituted for the purpose of ultimately obtaining a favorable decision from the agency. Such communications would be considered ex parte because they occur when a party to a legal matter, or someone involved with a party, communicates directly with the adjudicators ruling on that matter about the issues in the case without other parties' knowledge.

The Professional Ethics Committee said such communications is not allowed. Opinion No. 587 stated that Rule 3.05 requires that, absent any applicable law permitting such ex parte contacts, strict limits are in effect on ex parte communications with an agency's decision making personnel prior to filing the matter with the agency. However, Rule 3.05 did not prohibit such communications with agency personnel who are not the decision maker or a member of the applicable decision making body unless such communications are intended to be indirect ex parte communications with the decision maker for the purpose of influencing the outcome of the matter.

A legal memorandum by Baylor Law Professor Ron Beal supports the finding, and Beal has been invited to present a lecture on the Opinion at the Texas Bar CLE Advanced Administrative Law Course to be held in Austin Sept. 17-18.

This issue is a controversial one since the Texas Supreme Court held in 1981, in Vandygriff v. First Savings & Loan Association of Borger, that the ex parte prohibitions within the Texas Administrative Procedure Act (APA) did not apply until the matter with the agency - the adjudicatory action - formally commences. Many administrative lawyers had construed this holding to allow ex parte communications prior to the commencement of the adjudicatory action.

In October 2007, Professor Beal submitted a legal memorandum as to the effect of Disciplinary Rule 3.05 in relation to the Texas Supreme Court holding in Vandygriff, concluding that the Vandygriff case could not be construed to condone or allow ex parte communications as a matter of law. His analysis showed that Disciplinary Rule 3.05 clearly applies and strictly prohibits such communications with the decision makers of an administrative agency. His views coincided directly with those of the Texas Ethics Committee, which solicited his input.

"Prof. Beal is the leading academic light on administrative law in Texas," said Baylor Law Dean Brad Toben. "Courts have consistently cited his work and lawyers in the profession look to him for guidance and counsel in this area of the law that has grown geometrically over the past decades. We are so proud of Ron and the positive focus he brings to our school."

"The Ethics Committee rendered their opinion based on their own analysis of the Vandygriff opinion and their own interpretation of Disciplinary Rule 3.05," Beal said. "I take no credit for their opinion but was honored to be asked to submit my analysis and I am overjoyed that we came to the same conclusion.

"It is critical that the integrity of the administrative process be protected. This issue was one of the last remaining 'wrinkles' that could cause a citizen to question the integrity and fairness of the administrative system. I applaud Randy Chapman, Executive Director of the Texas Legal Services Center, for submitting the issue to the Committee as well as the thorough and I believe legally correct analysis set forth by the Committee."