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

1. Ethical Issues In State Utility
Commission Proceedings
Richard J. Johnson
Moss & Barnett

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. 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. 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. 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. “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. 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. 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