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HomeMy WebLinkAbout85-520 GmerekSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 March 4, 1985 ADVICE OF COUNSEL Richard J. Gmerek, Esquire 85 -520 111 State Street Harrisburg, PA 17101 Re: Attorney, Office of Senate Majority Leader, Representation, Sec. 3(e), Dear Mr. Gmerek: This responds to your letter of February 22, 1985, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissible scope of your activities upon termination of your employment with the Office of the Senate Majority Leader, hereinafter, the Office. Facts: You served as the former legal counsel to Pennsylvania Senator Robert C. Jubelirer. During this employment Senator Jubelirer was the Majority Leader in the Senate. You terminated this employment on February 13, 1985 and thereafter, assumed a position as an associate in a private law firm. As counsel to Senator Jubelirer you were generally responsible for the drafting of legislation, resolving legislative problems, dealing with lobbyist and association representatives and conducting legal research. In your current employment you are generaly engaged in the practice of law and you anticipate the representation of clients before the judicial, executive and legislative branches of the state government. You have specifically indicated that you may be representing clients before the legislature including the office of Senator Jubelirer. You inquire as to what, if any, restrictions may be placed upon you under the State Ethics Act. Richard J. Gmerek, Esquire March 4, 1985 Page 2 As noted in your letter, the case of 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) deals with the applicability of Section 3(e) of the Ethics Act to attorneys in reference to their practice of law. You seek clarification of the question of the applicability of the Ethics Act to your situation and any restrictions that might be placed upon you with respect to the practice of law in your new employment. Discussion: In light of the 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 Senate and the Office in particular, with which you were associated, would constitute the practice of law, Section 3(e) of the Ethics Act cannot be applied to restrict your 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 Senate and the Office 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 Senate or the Office -- the governmental body with which you were associated -- do not fall within the category of the "practice of law" the prohibitions of Section 3(e) of the Ethics Act might be applicable. In this respect, and only in reference to these types of activities, you would be restricted from representing any person before your former governmental body for a period of one year. This would not only include the office of Senator Jubelirer but in light of the nature of that office, it would also include the Senate as well. 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. Richard J. Gmerek, Esquire March 4, 1985 Page 3 Because you have sought only general advice and have not presented a specific question, the Commission at this time is only able to provide the guidelines set forth herein. Should a specific question arise in relation to your activites, you may desire to seek the further advice of the Commission. In any event, even if Section 3(e) of the Ethics Act were to be applicable, there would be no prohibition on your conduct, except with respect to the Senate or the Office -- the "governmental body" with which you were "associated." Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the Senate or the Office would not be restricted by Section 3(e) of the Ethics Act. 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. 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. 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 he 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. JJC /sfd Sincerely,