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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 in...
Conflicts
• ABA Model Rule 1.7
– Consent is key
– Addresses rules and client relations

• Situations that are not a confli...
Possible Direct Conflicts
• Utility law firm represents intervening
utility customers in other matters
– Conflict may depe...
Positional or Issue Conflicts
• Advocating for different sides of an issue
– Representing customer groups and utilities.
–...
“Imposed” Conflicts
• Utility attorney with customer clients who
intervene unexpectedly
– Scope of intervention re adversi...
Ex parte and other restrictions
• ABA Model Rule 3.5, Agency ex parte rules
– Disclosure as a typical remedy

• Agency cod...
Ex parte and other restrictions
• ABA Model Rule 4.2
– Advocacy policy makers vs. witnesses
– Limits on attorneys vs. regu...
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Ethical Issues in State Utility Commission Proceedings

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Richard J. Johnson presentation to Energy Bar Association 2013 Mid-Year Meeting & Conference on October 24, 2013.
Purpose: To present a reminder of basics
Topics: conflicts, ex parte contacts, and 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

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Ethical Issues in State Utility Commission Proceedings

  1. 1. Ethical Issues In State Utility Commission Proceedings Richard J. Johnson Moss & Barnett
  2. 2. 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
  3. 3. 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
  4. 4. 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
  5. 5. 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
  6. 6. “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
  7. 7. 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
  8. 8. 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

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