HomeMy WebLinkAbout85-529 BinnsJames J. Binns, P.A.
Attorney At Law
300 Walnut Street
Philadelphia, PA 19106
Dear Mr. Binns:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
March 28, 1985
ADVICE OF COUNSEL
85 - 529
Re: Legal Representation, State Athletic Commission Member
This responds to your letter of March 14, 1985, in which you requested
advice from the State Ethics Commission.
Issue: Whether you, as an attorney, may represent a witness before an
investigating commission, when you are a member of the State Athletic
Commission.
Facts: While you have not provided any facts regarding this request for
advice, we note that you have been issued a previous Advice of Counsel,
84 -614, on September 27, 1984. We will assume for the purpose of this advice,
that you are still a member of the Pennsylvania State Athletic Commission,
hereinafter, SAC. Generally, you indicate that you have been retained, in
your capacity as an attorney, to represent a witness who has been subpoenaed
to appear before the New Jersey State Commission of Investigation. The
investigation and general area of questioning will focus on the infiltration
of organized crime in the New Jersey boxing industry. You question whether
there is any conflict of interest in your representation of this individual in
your capacity as an attorney licensed to practice in Pennsylvania.
Discussion: At the outset, it must be noted that the particular question you
have posed, at least as it is presented, concerns a matter clearly outside of
the jurisdiction of the State Ethics Commission. The question of whether a
licensed Pennsylvania attorney may represent a client in the State of New
Jersey is a matter that should be addressed to the Supreme Court of the state
in which you seek to practice.
Mr. James J. Binns
March 28, 1985
Page 2
In order, however, not to cause any delay in this matter, we will assume
that you have presented this question in your capacity as a member of the
State Athletic Commission. In that capacity there is no doubt that you are a
public official as that term is defined in the State Ethics Act. 65 P.S. §401
et. seq.; Advice 84-614, Binns, As such, your activities in this capacity
must conform to the requirements of the State Ethics Act.
First, with regard to whether you may represent a particular client in
your capacity as an attorney, reference should be made to, Pennsylvania Public
Utilit Commission Bar Association v. Thornburg, 62 Comm. Ct. 88, 434 A.2d
1327, 1981 , wherein the Pennsylvania Supreme Court held that where an
attorney renders professional services to a client, the attorney's conduct in
this repsect is regulated by the Supreme Court. As such, the State Ethics Act
would impose no prohibitions in respect to your activities as an attorney.
We must, however, review this situation in light of your role as a public
official.
The State Athletic Commission administers the laws allowing and
regulating boxing, sparring, and wrestling matches in Pennsylvania. 71 P.S.
§663. Such regulation includes the issuance, revocation, and/or suspension of
licenses for promoters, managers, trainers, boxers, referee's, judges, and
other officials involved in such activity. 4. P.S. §30.304.
The Ethics Act provides that:
Section 3. Restricted activities.
(a) NQ public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
In addition to the foregoing, the Act allows the Commission to review
other areas of possible conflicts of interests. 65 P.S. §403(d).
While you have not supplied the facts necessary to make an actual
determination as to whether either of these provisions are implicated by the
current situation, certain circumstances could lead to the possibility of such
a conflict. For example, if in your capacity as a member of SAC, you
participated to any extent in a matter relating to or involving the client you
now seek to represent, such a conflict may exist. This is especially true if
this client will be paying for your services. In that case, the aforecited
section, 3(a) may be pertinent. As noted, however, you have not indicated if
this potential client is even a licensee in the Commonwealth of Pennsylvania.
As such, our advice can only give general guidelines.
Mr. James J. Rinns
March 28, 1985
Page 3
Additionally, you should remember that if you, in fact, represent this
individual, you must abstain in the future from any participation as a member
of SAC, in any matter that comes before SAC relating to this individual. See
Wright; 85 -508.
Finally, this advice only addresses your obligations or duties under the
Ethics Act. The Ethics Commission may not offer advice under or regarding any
other statute, regulation, or code of conduct.
Conclusion: The Ethics Commission may not regulate the conduct of attorneys.
However, in your capacity as a public official your conduct must conform to
the requirements of the State Ethics Act as outlined above.
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 be scheduled and a 'ormal
Opinion from the Commission will be issued. Any such appeal must be mace, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
JJC /sfd
Sincer3ly,
John J - Contino
General Counsel