SECTION 157.1046. Conduct and Decorum

(a) Standards of conduct during the hearings process.

(1) The administrative law judge and the party representative should refer to the Texas Disciplinary Rules of Professional Conduct for guidance, regardless of whether all participants are licensed attorneys (Texas State Bar Rules, Article 10, §9).

(2) A party representative shall maintain high standards of professionalism during the administrative process and promote an atmosphere of civility and fairness.

(3) A party representative shall use these rules for legitimate purposes and not for dilatory purposes or to harass or intimidate other participants.

(b) Exclusion or disqualification of party representatives.

(1) Contemptuous conduct. An administrative law judge may exclude or disqualify a party representative from participating in the agency hearings process for contemptuous conduct. The administrative law judge shall warn the party representative prior to disqualification or exclusion, if possible. Contemptuous conduct includes:

(A) actual or threatened physical assault of any participant to the hearing;

(B) knowingly or recklessly making a false statement of material fact or law to the administrative law judge;

(C) counseling or assisting a witness to testify falsely;

(D) knowingly offering or using false evidence;

(E) filing a frivolous or knowingly false pleading or other document, or filing a frivolous or knowingly false defense. A frivolous filing is one:

(i) for which the party representative is unable to make a good faith argument consistent with existing law, or a good faith argument for an extension, modification, or reversal of existing law; or

(ii) primarily for the purpose of harassing or maliciously injuring another person;

(F) paying, offering to pay, or acquiescing in a payment or offer of payment to a witness based on the content of the witness' testimony or the outcome of the hearing;

(G) continually violating an established rule of agency procedure or of evidence;

(H) raising superfluous objections or otherwise unreasonably delaying the hearing or increasing the costs or other burdens of the hearing;

(I) misrepresenting, mischaracterizing, or misquoting facts or law to gain unfair advantage;

(J) except as otherwise permitted by law, communicating or causing someone else to communicate with the administrative law judge without the knowledge and consent of opposing party representatives in order to gain unfair advantage or to influence the hearing;

(K) using offensive or abusive language during the hearing;

(L) making inappropriate derogatory remarks about the commissioner, an administrative law judge, a party, a witness, or opposing counsel at a hearing or in documents filed with the agency; and

(M) engaging in disruptive conduct.

(2) Conflicts of interest. An administrative law judge may disqualify a party representative from participating in a hearing if the administrative law judge decides that the party representative has a conflict of interest. Conflicts of interest can be, but are not limited to, the following:

(A) when a party representative who previously acted as a public officer or employee on a matter later attempts to represent a private client on the same matter, unless the appropriate government agency consents;

(B) when a party representative who serves as a public officer or employee on a matter negotiates for private employment with a party or party representative involved in the same matter;

(C) when a party representative who serves as a public officer or employee participates in a matter involving a former private client whom he or she represented on the same matter, unless no one may legally act in the attorney's stead;

(D) when an attorney engages in the practice of law while under suspension or in violation of a disciplinary order or judgment; and

(E) any other conflict of interest that, in the opinion of the administrative law judge, offends the dignity and decorum of the hearing.

(3) Procedures for excluding or disqualifying a party representative.

(A) Notice. The administrative law judge shall state the specific reason for excluding or disqualifying a party representative on the record or in a written order. The administrative law judge shall notify the affected party and party representative of the exclusion or disqualification personally or by certified mail.

(B) Reasonable time for substitution. After the administrative law judge has excluded or disqualified a party representative, the affected party or party representative shall have a reasonable time to substitute a new representative. In determining a reasonable time, the administrative law judge shall consider the right of opposing parties to have the hearing resolved without undue delay. The administrative law judge may therefore align the affected party with another party in interest instead of permitting a substitution.

(C) No further participation. After being disqualified from a hearing, a party representative may not provide further assistance, either directly or indirectly, to any party with regard to the hearing, except to the extent reasonably necessary to appeal to the commissioner and to complete the withdrawal and substitution of a new party representative.

(D) No recusal. The exclusion or disqualification of a party representative by an administrative law judge is not a ground for recusal of the administrative law judge in the same or any subsequent hearing.

Source Note: The provisions of this §157.1046 adopted to be effective April 7, 1993, 18 TexReg 1928; amended to be effective July 20, 2004, 29 TexReg 6887