California Supreme Court to Decide Whether Government Lawyers Are Disqualified from Serving Dual Roles in the Same Government Office

Posted By: Professor Patricia E. Salkin

On Wednesday of this week, the California Supreme Court heard oral arguments in Morongo Band of Mission Indians v. State Water Resources Control Board, addressing the question of whether a staff attorney for an administrative agency may serve as a prosecutor in one matter while simultaneously serving as an advisor to the agency as decision maker in an unrelated matter without violating the due process rights of parties that appear before the agency. 

If the Supreme Court agrees with the courts below that such conduct presents either real bias or the appearance of bias, it could have far-reaching impacts for state and local government lawyers.  After all, it is quite common for full-time government lawyers to serve the agency in a variety of capacities including prosecuting violators and providing advice to the regulated communities and to the agency. The 2007 decision of a divided panel of the 3^rd District Court of Appeal held it is a due process violation under the California Administrative Procedures Act to wear two hats.  In the case at bar, the agency attorney was working on a matter to revoke a water rights license held by the Morongo Band of Mission Indians while at the same time advising the State Water Resources Board on a separate matter concerning flows on the American River.

Advocates have asserted that legal work on behalf of governments, especially in small agencies and small municipalities, could come to a screeching halt with a lack of personnel and a lack of resources to hire more personnel or outside counsel to separate the functions of lawyers who serve as prosecutor and as legal advisers.

This case attracted a number of amicus curiae briefs including a brief submitted by the California League of Cities and the California State Association of Counties.

The letter to the Supreme Court from the California League of Cities urging the Court to consider the matter and setting forth the interests of California municipalities here.

Read about the oral argument here

Stay tuned.  A decision is expected in about 90 days.

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Posted in Ethics
Tags: california, Ethics, morongo, Patricia, Salkin