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HomeMy WebLinkAbout89-506 SweetDavid W. Sweet, Esquire 89 -506 Suite 400 10 South Market Square P.O. Box 1181 Harrisburg, PA 17108 -1181 Re: Attorney, State Representative, Representation, Section 3(e) Dear Mr. Sweet: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 10, 1989 This responds to your letter of January 31, 1989, 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 Pennsylvania General Assembly. Facts: You state that you have left the Pennsylvania General Assembly on November 30, 1988 after twelve years of service wherein your tenure included service on a variety of committees and task forces and commissions as per an attached resume. During the 1987 -88 Legislative Session you note that you served as Chairman of the House Local Government Committee. After stating that you are an attorney at law admitted to practice in Pennsylvania, you indicate that you have recently become a partner in the firms of Pepper, Hamilton & Sheetz and are currently working out of the firm's Harrisburg, Pennsylvania Office. You then request advice under the Ethics Act as to the nature of the constraints which would be imposed upon you in terms of representing clients and the practice of law before agencies of the Commonwealth and secondly as to advocating the interests of those clients before the General Assembly or the Governor's Office. You specifically seek advice from the State David A. Sweet, Esquire February 10, 1989 Page 2 Ethics Commission relative to the Ethics Act and the precedent of prior Commission decisions as well as relevant decisional law. You finally express your understanding as to the provisions dealing with a good faith defense as set forth in Section 7(9) of the Ethics Act. 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. 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 Pennsylvania House of Representatives 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 Pennsylvania General Assembly 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 Pennsylvania House of Representatives -- the governmental body with which you have been associated while employed by Pennsylvania General Assembly -- 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 David A. Sweet, Esquire February 10, 1989 Page 3 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 Pennsylvania House of Representatives - -the "governmental body" with which you are "associated" while employed by the Pennsylvania General Assembly. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the Pennsylvania House of Representatives would not be restricted by Section 3(e) of the Ethics Act in any event. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the propriety of any other statute, code, regulation or ordinance other than the Ethics Act has not been considered. Specifically not addressed in this Advice is the applicability of the Legislative Code of Conduct, the Rules of Professional Conduct or the State Adverse Interest 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. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 David A. Sweet, Esquire February 10, 1989 Page 4 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, Vincent . Dopko, General Counsel