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HomeMy WebLinkAbout89-522 GalfandSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 27, 1989 Marvin F. Galfand, Esquire 89 -522 Suite 603 Center City One 1326 Spruce Street Philadelphia, PA 19107 Re: Attorney, Department of Revenue, Board of Appeals, Representation, Section 3(e) Dear Mr. Galfand: This responds to your letter of February 28, 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 Department of Revenue. Facts: You state that on February 9, 1989, you resigned as a member of the Board of Appeals in the Department of Revenue Commonwealth of Pennsylvania. You then indicate that you received a letter from the Secretary of Revenue stating that you could not appear before that agency for a one year period. You then reference an uncited case of Commonwealth Court which held that a judge would not be precluded from practicing before court because that was an unlawful regulation of the ability of attorneys to practice which could only be regulated by the Supreme Court. You conclude by requesting advice from the State Ethics Commission as to what position it takes so that you can proceed in a proper manner. 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 Marvin F. Galfand, Esquire March 27, 1989 Page 2 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 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 Board of Appeals of the Department of Revenue 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 Board of Appeals of the Department of Revenue 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 Board of Appeals -- the governmental body with which you have been associated while employed by Department of Revenue -- 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. Marvin F. Galfand, Esquire March 27, 1989 Page 3 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 Board of Appeals the "governmental body" with which you are "associated" while employed by the Department of Revenue. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the Board of Appeals 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 applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation 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. 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. such. This letter is a public record and will be made available as 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 52.12. Sincerely, Vincent J. Dopko, General Counsel