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HomeMy WebLinkAbout85-548 WitmanH. John Witman, III, Esquire Suite 1 Fairless Hills Shopping Center Fairless Hills, PA 19030 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 29, 1985 ADVICE OF COUNSEL 85 -548 Re: Attorney, Township Director of Community Development, Representation, Section 3(e), Dear Mr. Witman: This responds to your letter of May 10, 1985, 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 Falls Township, Bucks County, Pennsylvania. Facts: From May 3, 1985 to May 3, 1985 you were employed by Falls Township, Bucks County as Director of Community Development. This was an administrative position. As part of your function you worked as the Director of Planning, and as zoning officer. You aslo headed a department which included the office of planning and zoning and the Code Enforcement Office. In this respect, you participated in proceedings before the Falls Township Board of Supervisors, the Township Planning Commission and the Zoning Hearing Board. You have recently obtained a position as an attorney with a private law firm and seek the advice of the Ethics Commission regarding any restrictions imposed by the Ethics Act upon your representation of clients before Falls Township governmental bodies. 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. H. John Witman, III, Esquire May 24, 1985 Page 2 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 office of community development, the zoning hearing board, planning commission or the board of supervisors, the governmental bodies 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 the above referenced governmental bodies 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 community development office, the planning and zoning office, the code enforcement office, as well as the planning commission, zoning board and board of supervisors -- the governmental bodies with which you have been associated while employed by the township -- 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 will be acting in the capacity of lawyer - client, and that these activities would constitute the practice of law. As such, 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 above mentioned township offiCes, hoards and commissions -- the "governmental body" with which you were "associated" while employed by the township. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the one's identified above would not be restricted by Section 3(e) of the Ethics Act in any event. H. John Witman, III, Esquire May 29, 1985 Page 3 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 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. JJC /sfb Si ncerel ohn J. Conti General C'. sel at