Administrative Procedure and Legal Ethics
This domain tests how agency action is made and reviewed, and the professional-responsibility rules that govern labor and employment practice.
Administrative procedure
- Rulemaking: APA §553 requires notice, comment, and a concise general statement of basis and purpose; interpretive rules and policy statements are exempt.
- Adjudication: §§554–557 govern hearing procedures; the NLRB and many agencies make policy through adjudication rather than rulemaking.
- Judicial review: §706 sets the standards - arbitrary and capricious, substantial evidence, or de novo for constitutional facts. Loper Bright Enterprises v. Raimondo (2024) overruled Chevron, so courts now exercise independent judgment on statutory meaning while still respecting agency reasoning under Skidmore. Threshold doctrines - standing, finality, ripeness, exhaustion - decide many cases before the merits.
Ethics
Model Rule 1.1 requires competence, including technological competence; 1.6 governs confidentiality and the duty to notify on inadvertent receipt of privileged material; 1.7 and 1.9 cover concurrent and former-client conflicts, with 1.10 imputing conflicts firmwide; 1.13 addresses organizational clients and Upjohn warnings; 4.2 bars contact with represented persons; 5.3 requires supervision of nonlawyer staff; Rule 11 permits a 21-day safe harbor before sanctions.
Worked example
You defend an employer in an NLRB unfair labor practice case. The HR director forwards you a memo from outside counsel, and opposing counsel accidentally emails you the charging party's medical records. Analysis: the memo remains privileged if confidential legal advice within the corporate client, so the disclosure to HR does not waive it. For the medical records, Rule 4.4(b) requires prompt notice to the sender and forbids using them. On the merits, the ALJ's statutory interpretation is now reviewed without Chevron deference, so preserve the argument that the agency misread the statute.
Traps
- Assuming Chevron deference still applies.
- Treating interpretive rules as requiring notice and comment.
- Failing to send a Upjohn warning to employees interviewed by counsel.
- Using inadvertently disclosed privileged material.
- Missing the Rule 11 safe-harbor period.