Barring an individual from a PERB proceeding

Barring an individual from a PERB proceeding
Advisory Opinion of Counsel, 32 PERB 5001*

PERB’s counsel was asked if PERB or its administrative law judges “have the power” to issue an order disqualifying an attorney from representing a party based on a “potential substantive violation of the Code of Professional Responsibility”.

After noting that the Appellate Division is vested with the authority to discipline attorneys for alleged misconduct, Counsel pointed out that under Section 205(5)(j) of the Civil Service Law, PERB is not restricted from taking action to “exclude, suspend, or disbar any representative for misconduct in accordance with the Board’s rules.”

Section 207.4(j) of PERB’s rules [4 NYCRR 204.7(j)] provides:

Misconduct at any hearing before an administrative law judge shall be grounds for summary exclusion from the hearing. Such misconduct, if of an aggravating character and engaged in by an attorney or other representative of a party, shall be grounds for suspension or disbarment from further practice before the board after due notice and hearing.

Counsel concluded that although a violation of the Code might also constitute misconduct in a PERB proceeding, “for PERB’s purposes, the critical issue regarding such conduct would not be whether it violated the Code of Professional Responsibility, but whether it was misconduct that threatened a party’s rights, the Taylor Law, or PERB’s administration of that law.”

* Advisory Opinions of Counsel are not binding on PERB
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