Adjudicative Ethics: Dilemmas of Tribunal Counsel & Staff

1. Ethics in Administrative Justice Adjudicative Ethics:Dilemmas of Tribunal Counsel & Staff

2. Problem 1: Disclosure A staff member with a high-volume benefits tribunal likes to take the occasional coffee break in the public reception area. During one of these breaks, she notices a part-time tribunal member and counsel for one of the parties talking. She can’t hear the whole conversation but does hear the tribunal member say “Just don’t tell anyone around here where you heard it” as he departs. What should the staff member do, if anything, with this information.

3. Problem 1: Disclosure • Discussion Question: • Does the staff member have an obligation to disclose what she has heard?

4. Problem 1: Disclosure • Assume the staff member shared the overheard conversation with Tribunal Counsel • Should Tribunal Counsel approach the part-time member? • What are counsel’s obligations re solicitor-client privilege as between the staff member and the part-time member? • What is the obligation of Counsel (if any) to the Chair of the Tribunal?

5. Problem 2: Role of Counsel/Staff • At a busy provincial regulator, a part-time board member, X, sits occasionally on an adjudicative panel. Counsel to the regulator supports the adjudicative panel providing research, legal opinions and proof-reading, etc. Counsel is asked by X to “take a first cut” as drafting the decision in a relatively complex matter. Counsel assists, based on a discussion with X about the deliberations and the rationale for the decision. Counsel brings to X’s attention a previous decision of the Board on a similar matter and an apparent inconsistency. • X asks Counsel to “resolve the issue” describing it as “way over my head.” Counsel makes revisions to distinguish the earlier decision and leaves X with the draft. The decision is released under X’s name with no substantial modifications.

6. Problem 2: Role of Counsel/Staff Discussion Question: What are the ethical consequences, if any, from this scenario, and how ought they to be addressed?

7. Problem 3: Conflicting Hats • Susan Shahin, a lawyer for a large, adjudicative and regulatory Tribunal, is asked to provide a legal opinion on the scope of the Chair’s powers. Specifically, the Chair has asked whether she can issue a “Statement from the Chair” that would map out a new set of performance objectives, which will require, among other data, new kinds of disclosure from the industries regulated by the Tribunal.

8. Problem 3: Conflicting Hats • Susan’s opinion is qualified by a lengthy analysis which highlights the need to assess the impact of disclosure on particular companies, procedural rights, and the ambiguity of the statutory language, which simply provides that, “The Chair is the chief executive officer of the Board and, unless otherwise authorized by the Minister, shall devote his or her full time to the work of the Board.” By way of conclusion, however, the opinion states that “Under the Act, the Chair has broad powers in several different areas, and there is no provision precluding the Chair from undertaking a data collection initiative.”

9. Problem 3: Conflicting Hats • A month later, a dispute arose between the Chair and a Board member who is a well-known critic of the Chair about the data collection initiative which has been roundly opposed by industry and attacked as a thinly veiled “fishing expedition.” At a meeting of the Board, when challenged, the Chair waves a copy of Susan’s legal opinion in the air and declares, “our lawyer confirms I have these powers under the Act and I intend to use them.” • Susan believes the Chair has not fairly represented her opinion, and that her integrity is on the line. She feels she should take some kind of remedial action.

10. Problem 3: Conflicting Hats • Discussion Question: • What can (and should) Susan do?

11. Problem 4: Process • A front-desk staff member for a health tribunal is confronted by a rude and combative individual. He asks the staff member to help with filling out forms, including the summary of his position. The Staff member patiently explains that this is not her role and referred the individual to a pro bono program which might be able to assist him. He became agitated and security was called to escort him out of the tribunal premises. • The individual’s appeal to the tribunal is dismissed. Several weeks a later a hand-written letter of complaint is received. The letter is rambling but mentions the “cruelty” of the staff member and the fact that no attempt was made to accommodate his mental illness.

12. Problem 4: Process • Discussion Question: • How should the matter be investigated/addressed?