1. (a) Standards of conduct during adjudicative proceedings.

   1. (1) The hearings examiner 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. (2) Party representatives shall maintain high standards of professionalism during the administrative process and promote an atmosphere of civility and fairness.
   3. (3) A party representative shall use these rules for legitimate purposes and not for dilatory purposes or to harass or intimidate other participants.

2. (b) Exclusion or disqualification of party representatives.

   1. (1) Contemptuous conduct. A hearings examiner may exclude or disqualify a party representative from participating in an agency hearing for contemptuous conduct. The hearings examiner shall warn the party representative prior to exclusion, if possible. Contemptuous conduct includes:

      1. (A) actual or threatened physical assault of any participant to the proceeding;
      2. (B) knowingly or recklessly making a false statement of material fact or law to the hearings examiner;
      3. (C) counseling or assisting a witness to testify falsely;
      4. (D) knowingly offering or using false evidence;

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

         1. (i) primarily for the purpose of harassing or maliciously injuring another person; or
         2. (ii) 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;
      6. (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 proceeding;
      7. (G) continually violating an established rule of agency procedure or of evidence;
      8. (H) raising superfluous objections or otherwise unreasonably delaying the proceeding or increasing the costs or other burdens of the proceeding;
      9. (I) misrepresenting, mischaracterizing, or misquoting facts or law to gain unfair advantage;
      10. (J) except as otherwise permitted by law, communicating or causing someone else to communicate with the hearings examiner without the knowledge and consent of opposing party representatives in order to gain unfair advantage or to influence the proceeding;
      11. (K) using vulgar or abusive language during the proceeding; and
      12. (L) engaging in disruptive conduct.

   2. (2) Conflicts of interest. A hearings examiner may disqualify a party representative from participating in a proceeding if the hearings examiner decides that the party representative has a conflict of interest. Conflicts of interest can be, but are not limited to, the following:

      1. (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;
      2. (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;
      3. (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;
      4. (D) when an attorney engages in the practice of law while under suspension or in violation of a disciplinary order or judgment; and
      5. (E) any other conflict of interest that, in the opinion of the hearings examiner, offends the dignity and decorum of the proceeding.

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

      1. (A) Notice. The hearings examiner shall state the specific reason for excluding or disqualifying a party representative on the record or in a written order. The hearings examiner shall notify the affected party and party representative of the exclusion or disqualification personally or by certified mail.
      2. (B) Reasonable time for substitution. After the hearings examiner has excluded or disqualified a party representative, the affected party or party representative shall have reasonable time to appeal to the commissioner. If the commissioner sustains the exclusion or disqualification, the party shall have a reasonable time to substitute a new representative. In determining a reasonable time, the hearings examiner shall consider the right of opposing parties to have the proceeding resolved without undue delay. The hearings examiner may therefore align the affected party with another party in interest instead of permitting a substitution.
      3. (C) Appeal to the commissioner. A party or party representative may appeal the exclusion (if it is for a period of more than eight hours) or disqualification to the commissioner. The motion shall be filed with the commissioner within five working days after actual notification of the exclusion or disqualification. If the commissioner does not act within 10 days after the motion is filed, the motion is overruled by operation of law. The commissioner may, however, extend the time for taking action on the motion.
      4. (D) No further participation. After being disqualified from a proceeding, a party representative may not provide further assistance, either directly or indirectly, to any party with regard to the proceeding, except to the extent reasonably necessary to appeal to the commissioner and to complete the withdrawal and substitution of a new party representative.
      5. (E) No recusal. The exclusion or disqualification of a party representative by a hearings examiner is not a ground for recusal of the hearings examiner in the same or any subsequent proceeding.

Source Note:The provisions of this §157.1046 adopted to be effective April 7, 1993, 18 TexReg 1928.