Advisory Opinion No. 1998-1

Application Of State Ethics Commission Advisory Opinion 97-9 To A CHRO
Hearing Officer/Attorney Who Limits His Practice Re: Discrimination
Matters To Appearances In Court

In State Ethics Commission Advisory Opinion No. 97-9, 58 Conn. L.J. No. 48, p. 3D (5/27/97) the Commission ruled that Commission on Human Rights and Opportunities (CHRO) hearing officers, and the law firms with which they were associated, could not practice law before the CHRO.

A newly appointed hearing officer, Joseph N. Varon, Esq., has now asked whether A.O. No. 97-9 precludes his current practice of representing plaintiffs in employment discrimination cases. Specifically, it is Attorney Varon’s practice initially to file his clients’ discrimination claims with the CHRO, but then to remove these cases to superior court at the end of the Agency’s mandatory review period. See, Conn. Gen. Stat. § § 46a100 and 101, which provide for such removal after a 210 day waiting period.

Attorney Varon’s course of conduct is based on the judicial determination that the CHRO may grant back pay only in employment discrimination cases and is not authorized to award compensatory damages or attorney’s fees. As a consequence, Attorney Varon has never represented a client before a CHRO hearing officer. Additionally, he states that, given his appointment, he would withdraw from the case, if a client insisted on proceeding at the Agency level.

The Commission’s Ruling in A.O. No. 97-9 was premised on the following factors: first, the hearing officer could establish Agency precedent thereby potentially affecting the outcome in parallel or analogous cases where the individual was acting as a private attorney; secondly, the hearing officer was in the position of ruling on cases where the decision could directly affect the success, and possibly the compensation of a fellow hearing officer/attorney, a fellow hearing officer who could well have the opportunity to similarly affect his colleague’s casework in the future; and, finally, the hearing officer/attorney’s practice before the Agency could not help but be improperly benefited by his public authority over his area of private employment.

By strictly limiting his practice before the CHRO to the mandatory filing of claims, which filings serve as the necessary prerequisite to transferring his client’s cases to court, Attorney Varon will avoid the above enumerated conflicts of interests.

Therefore, as long as he adheres to this course of conduct, and engages in no substantive legal representation before the Agency, he may continue to serve as a CHRO hearing officer while practicing employment discrimination law in the Courts.

By order of the Commission,

Stanley Burdick
Chairperson