The Second District Court of Appeal, in Sabey v. City of Pomona (B239916), remanded a decision related to discipline of a police officer on the basis that his due process rights were violated when one partner from a law firm represented the Police Department in the officer's arbitration matter, and a different partner from the same firm represented the city council in the officer's appeal of his termination. Even though there was no evidence of bias, the court believed the risk of bias, when two partners from the same firm were involved in different levels of the contested hearing, "too high to be acceptable under constitutional principles." As explained by the court, "[t]he rule we announce is simple. Agencies are barred from using a partner in a law firm as an advocate in a contested matter and another partner from the same law firm as an advisor to the decision maker in the same matter."
Due process requires impartiality in administrative hearings, and prevents an attorney from performing dual roles in contested quasi-judicial hearings such as administrative, disciplinary or code enforcement hearings. Based on that principle, agencies have used one attorney to represent the agency in an administrative hearing, while allowing another attorney to represent the board that reviews the decision stemming from that hearing. This approach was permissible as long as there existed "assurances that the adviser for the decision maker is screened from any inappropriate contact with the advocate." (Howitt v. Superior Court (1992) 3 Cal.App.4th 1575.) "Ethical walls" were set up by law firms in order to comply with Howitt and to ensure an attorney did not communicate about the matter or access the files of the other attorney participating in the matter.