DATE: October 16, 1998

CASE NUMBER 97-CAA-12

In the Matter of

MARK DUNCAN,
    COMPLAINANT,

    v.

SACRAMENTO METROPOLITAN AIR QUALITY
MANAGEMENT DISTRICT,
    RESPONDENT.

   The above-captioned matter arises from a complaint filed with the Secretary of Labor under section 322 of the Clean Air Act, 42 U.S.C. §7622, by Complainant Mark Duncan and two co-workers: Eric Munz and Linda Clark. A trial on the merits of the complaint commenced on November 3, 1997 and was recessed on November 7, 1997 after the receipt of five days of testimony. Thereafter, the trial was scheduled to resume in Sacramento, California, at 9:00 a.m. on February 17, 1998. At approximately 7:00 a.m. on the morning of February 17, 1998, Complainant Clark faxed a 19-page letter and 21 pages of various other documents to the San Francisco office of the undersigned administrative law judge. In the letter, Complainant Clark asserted that John Simonson, the attorney who was then representing all three of the complainants, had been "deliberately negligent" in his representation of her interests, that her case was being "sabotaged" so that the other two complainants could get a "larger

payoff," and that she has been "screwed over" by Mr. Simonson "in collaboration with" the Respondent and its attorneys. In addition, Complainant Clark also represented that Complainant Duncan had told her during a conversation on October 10, 1997 that he felt that he could successfully lie under oath when called to testify in this proceeding.

   When the trial resumed in Sacramento at 9:00 a.m. on February 17, Clark was present but did not provide anyone with copies of the foregoing faxes.¹ As a result, no one other than Clark knew the full contents of these documents. However, since it was known by the undersigned that a lengthy document had been faxed to San Francisco, Clark was directed to make copies available to Mr. Simonson, the undersigned, and the other parties. That evening Clark faxed a copy of the letter and other documents to Mr. Simonson, who provided copies to the undersigned and to the other parties during the course of the trial on the following day, February 18. A copy of these materials was subsequently marked and admitted into evidence as Administrative Law Judge Exhibit (ALJX) 1.² After review of these materials, it was determined that the allegations they contained, including the allegation concerning Duncan, created apparent conflicts of interest that made it necessary to consider the propriety of Mr. Simonson's continued simultaneous representation of both Duncan and Clark. Tr. at 2069-95. After these apparent conflicts were explained to Duncan and Mr. Simonson, they conferred in private for about an hour and, as a result of that consultation, Duncan explicitly waived any right he had to representation that was free from conflicts arising out of Mr. Simonson's representation of Clark. Tr. at 2096-97. Since Clark failed to attend any of the trial sessions after February 17, it was not possible to ask her if she too was willing to waive any conflict of interest.³ However, on March 25, 1998 she unequivocally terminated Mr. Simonson's authority to continue representing her and thereby mooted any question about such a waiver. ALJX 5. See also Tr. at 2167-68 (verbal order granting Mr. Simonson's motion for leave to withdraw as Clark's attorney).

   In a post-hearing brief filed on July 8, 1998, Duncan requested that the undersigned administrative law judge "issue an order of mistrial and recuse [himself] from any further proceedings in this action." As grounds for such motion it was asserted that the undersigned's use of Clark's February 17 fax during the trial "irreparably prejudiced Duncan's interest and demonstrated ...bias against Duncan as well as his attorney." In particular, it was alleged that Clark's fax was misused in two respects. First, the brief alleged that it was improper to respond to the fax by informing the parties that the allegations in the fax created possible conflicts of interest that might preclude Mr. Simonson from continuing to represent both Duncan and Clark unless the conflicts were knowingly waived. Second, it was asserted that it was improper for the undersigned administrative law judge to have allegedly asked Duncan "why he had not confronted Clark about her lying allegations" because "one of the answers Duncan couldn't give was that he was advised by counsel to avoid any discussion about the letter with Clark" (emphasis in original).

   First, there was absolutely no impropriety whatsoever in pointing out that the allegations in Clark's fax created a conflict of interest that would have to be addressed by Clark and Duncan before Mr. Simonson could be allowed to continue representing both parties.⁴ Indeed, the Ninth Circuit has held that administrative law judges have an affirmative duty to inquire into an attorney's potential conflicts of interest and to either ensure that there is "informed consent" to such conflicts, if they are found, or, in the absence of such informed consent, disqualify the attorney. Smiley v. Director, OWCP, 984 F.2d 278, 281-83 (9th Cir. 1993). Failure to fulfill this duty can constitute reversible error. Id.

   Second, there was no impropriety in the undersigned's questions to Duncan concerning Clark's allegations. As provided in the applicable regulations, administrative law judges have the clear authority to question witnesses, including parties. 29 C.F.R. §18.29(a)(2). See also United States v. Liddy, 509 F.2d 428, 440 (D.C. Cir. 1974) (holding that "[w]here a trial judge is concerned with a witness's reliability, he may insist on supplemental questioning."); United States v. Pierce, 62 F.3d 818, 834 (6th Cir. 1995) (holding that questioning by a trial judge is appropriate since "[t]he trial judge's duty is to conduct a trial in an orderly fashion and obtain truth and justice"). Moreover, Duncan's post-trial brief misrepresents the nature of the allegedly prejudicial question asked of Duncan. Although Duncan's post-trial brief implies that in some indirect way Duncan was called upon to divulge the contents of a purportedly privileged conversation by allegedly being asked "why he had not confronted Clark about her lying allegations," in fact the question actually asked clearly sought only non-privileged information---whether or not Duncan had in fact confronted Clark about the allegations.⁵ At no time was Duncan asked to explain why he had not confronted Clark. In any event, if Duncan or his counsel thought that any one of the undersigned's questions called for disclosure of a privileged communication, they had many options during the course of the trial for dealing with such questions. For example, Duncan could have invoked the privilege when applicable, his attorney could have objected to the questions when asked, or after consultation they could have decided that it would be more advantageous to simply waive the privilege, as had been done on at least one prior occasion. See Tr. at 73 (statement of Duncan's attorney waiving attorney-client privilege as to a letter). Their failure to pursue any of these options until after the record closed (i.e., their apparent decision to use a post-trial brief as a forum for waiving any privilege concerning advice Duncan was given about having discussions with Clark) is no one's fault but their own.

   Accordingly, Duncan's request for a mistrial and the recusal of the undersigned administrative law judge is denied.

      Paul A. Mapes
      Administrative Law Judge

¹ During early February, Complainant Munz and the Respondent entered into a proposed settlement agreement and, therefore, when the trial resumed on February 17, only the complaints of Complainants Duncan and Clark were still in issue.

² The materials provided by Mr. Simonson are identical to the documents faxed to San Francisco except for the cover sheets and the markings showing when the materials had been faxed.

³ Because Clark's failure to appear after February 17 was contrary to a series of orders specifically directing her to so appear and testify, her complaint was dismissed with prejudice on May 29, 1998.

⁴ In this regard, it is noted that the following statement in Duncan's post-trial brief apparently amounts to an acknowledgment by Duncan and his attorney that the allegations in Clark's fax did in fact create a conflict of interest: "The court knew Simonson lacked subpoena power over Clark and that Simonson, more significantly, could not otherwise attempt trial impeachment of Clark because her letter was written and sent during her representation by Simonson." Brief at 30.

⁵ The question actually asked is as follows: "So you didn't say to her why in the world would you send some fax to the judge saying that I could lie?" Tr. at 2627.