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HomeMy WebLinkAbout85-504 Fahey JrJohn G. Fahey, Jr. Esq. Attorney at Law 6901 Thomas Blvd. Pittsburgh, PA 15208 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 January 7, 1985 ADVICE OF COUNSEL 85 -504 Re: Attorney, Workers' Compensation Referee, Representation, Sec. 3(e), Dear Mr. Fahey: This responds to your letter of December 27, 1984, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissible scope of your practice of law upon termination of your employment with the Department of Labor and Industry. Facts: You indicate that you plan to retire from your position as a Workers' Compensation Referee serving within the Bureau of Workers' Compensation, hereinafter the Bureau, within the Department of Labor and Industry, hereinafter the Department. This retirement will be effective January 8, 1985. Following your retirement it is your intention to represent clients as a practicing attorney before the Bureau and its referees and the Workers' Compensation Appeal Board. You are probably aware of the case entitled Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327, 62 Pa. Cmwlth. 88 (1981), affirmed per curiam 450 A.2d 613, 498 Pa. 589 (1982) which deals with the applicability of Section 3(e) of the Ethics Act to attorneys in the regulation of their practice of law. However, you seek clarification of the question of the applicability of the Ethics Act to your situation and any restrictions that might be placed upon your conduct with respect to your practice of law and new work and /or employment. Mr. John G. Fahey January 7, 1985 Page 2 Discussion: In light of the recent decision in Pennsylvania Public Utility Commission Bar Association, supra, where the Court held that Section 3(e) of the Ethics Act, 65 P.S. 403(e), was an impermissible intrusion upon the Supreme Court's authority to regulate an attorney's conduct, the State Ethics Commission has applied this decision to mean that there are no prohibitions under Section 3(e) of the Ethics Act upon your conduct insofar as that conduct constitutes the practice of law. Therefore, insofar as your conduct before the Bureau in particular, the agency or entity with which you were associated, would constitute the practice of law, Section 3(e) of the Ethics Act cannot be applied to restrict that proposed activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote 7, 434 A.2d at page 1331 - 1332. In this note, the Court indicates that any activity in which the attorney proports to render professional services to a client may only be regulated by the Supreme Court. The State Ethics Commission, therefore, must conclude that to the extent that you would represent a client, as a lawyer, before the Bureau or otherwise, Section 3(e) of the Ethics Act would not operate to bar such activity. If, however, the activities that you intend to undertake before the Bureau -- the governmental body with which you have been associated while employed by Department -- do not fall within the category of the "practice of law" the prohibitions of Section 3(e) of the Ethics Act might be applicable. Activities which might be considered, by the Commission, not to constitute the "practice of law" or to be undertaken in the capacity as lawyer - client, might include activities such as lobbying and negotiating on contracts. However, we will assume, for the purposes of this Advice, that you intend to undertake these activities in the capacity of lawyer - client, that these activities would constitute the practice of law, and that the provisions of Section 3(e) of the Ethics Act, pursuant to the mandates of the Supreme Court's ruling would, therefore, be inapplicable. In any event, you should be advised that your activity, even if Section 3(e) of the Ethics Act were to be applicable, would not regulate your conduct, except with respect to the Bureau -- the "governmental body" with which you are "associated" while employed by the Department. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the Bureau would not be restricted by Section 3(e) of the Ethics Act in any event. Conclusion: Section 3(e) of the Ethics Act does not restrict your representation or your activities, as outlined above, insofar as those activities constitute the practice of law. Mr. John G. Fahey January 7, 1985 Page 3 Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. SSC /sfd This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. Sincerely, /Sandra S. Chris ianson General Couns