Who represents the agency at your administrative hearing

It is a rule about who sits on the other side of the table when you litigate against an agency in an administrative forum. The Act gives executive-branch agencies three options — request an attorney from the Department of Justice, use their own employed attorneys, or contract attorneys for professional services — without having to request a dispensation. That matters to you for two practical reasons: you will know who you are negotiating with, and you will know that attorney cannot close a deal on their own.

The rule applies to executive-branch agencies and to proceedings before administrative forums, “whether before the agency itself or before another agency with power to regulate, investigate or adjudicate.” For you as a citizen there is no requirement to meet: it is a rule about the government’s legal representation, not a procedure you apply for.

Information pending verification.

Information pending verification.

1. 1

   Step 1: The attorney across from you may not be from Justice

   The Act opens three routes and puts them in the same sentence: “executive-branch agencies shall have the option of requesting the Department of Justice’s services or of being represented by agency-employed attorneys or attorneys contracted for professional services, without having to request any kind of dispensation or permission to that effect.” Previously a dispensation had to be arranged; now it does not. The only thing the agency must do if it chooses that alternative is notify its decision in writing to the Department of Justice.

2. 2

   Step 2: The point that most matters to you: the deal does not close there

   If you are negotiating with the agency’s attorney, this sentence changes your expectations: “every settlement, transaction, stipulation or agreement related to the object of the legal action in adjudicative proceedings, made by the administrative body’s representation before the corresponding agency, must have the prior approval of the Department of Justice.” Four distinct words — settlement, transaction, stipulation, agreement — all fall under the same prior-approval requirement. A handshake does not end the case.

3. 3

   Step 3: If the agency uses contracted attorneys, there is a quarterly report

   The Act adds a follow-up duty for one of the three options: “When an agency is represented by its attorneys contracted for professional services before an administrative proceeding, it must report the case status quarterly to the Assistant Secretariat for Civil Affairs of the Department of Justice.” That duty falls on the agency, not on you, and it creates no right of yours to receive that report: the Act does not say so.

4. 4

   Step 4: Three case types still go to Justice

   The flexibility has a ceiling and the Act lists it: “the following cases must be referred to the Department of Justice: 1) cases invested with high public interest; 2) cases carrying important decisions on the establishment of general government public policy; and 3) when it is necessary to seek judicial review of an administrative determination, for which the Secretary of Justice may grant a dispensation.” Note the third: if the case goes to judicial review, Justice comes back in, with the possibility of the Secretary granting a dispensation.

5. 5

   Step 5: What did not change: who is the government’s legal representative

   The first paragraph of Article 4 is unchanged and worth keeping in mind: “The Secretary is the legal representative of the Government of Puerto Rico, of its agencies and of the People of Puerto Rico in civil, criminal, administrative and special suits and proceedings in which it is a party and that are brought in the courts or other forums in or outside the jurisdiction of Puerto Rico. The Secretary shall exercise this representation personally or through the attorneys, prosecutors and advocates or through the Solicitor General.” The new rule is an option within that framework, not a replacement of it.

6. 6

   Step 6: Municipalities remain mentioned separately

   The article closes by listing whom the Secretary is to represent, and subsection (c) of the enacted text reads: “municipalities, when the conditions established by Act 107-2020, as amended, known as the ‘Municipal Code of Puerto Rico’ and this Act are present.” We did not read the Municipal Code, so we publish no list of those conditions.

7. 7

   Step 7: The regulation coming, and its deadline

   Section 2 orders: “The Department of Justice is ordered to amend its regulations in accordance with the provisions of this Act, within a term not exceeding ninety (90) days from its approval.” The Act took effect immediately upon approval. We did not read that amended regulation and do not know whether it has been adopted, so we publish no content from it.

There is nothing to apply for: this Act governs the government’s legal representation, not a citizen procedure. Your case proceeds in whichever administrative forum applies. The Department of Justice is the one that receives the agency’s written notice, the quarterly report when there are contracted attorneys, and the request for prior approval of any settlement.

• Treating a deal with the agency’s attorney as closed: every settlement, transaction, stipulation or agreement needs the Department of Justice’s prior approval.
• Assuming the person opposing you is a Justice attorney: it may be an agency-employed attorney or one contracted for professional services.
• Believing the agency needed a dispensation to use its own attorneys: the Act expressly says it no longer does.
• Expecting the agency to give you the quarterly report: that duty runs to Justice’s Assistant Secretariat for Civil Affairs, not to you.
• Thinking Justice is out of the case: it still comes in for high-public-interest cases, general public policy cases, and when judicial review is needed.
• Looking in this Act for your administrative hearing’s procedure: that is in another Act we did not read.

These are the government pages this guide is based on.

• Departamento de Justicia de Puerto Rico

  Justicia

  bvirtualogp.pr.gov