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HomeMy WebLinkAbout89-552 BlenkoSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 13, 1989 Andrew W. Blenko, P.E. Commonwealth of Pennsylvania Department of Environment Resources Bureau of Water Quality Management Highland Building 121 South Highland Avenue Pittsburgh, PA 15206 -3988 Re: Attorney, DER, Representation, Section 3(e) Dear Mr. Blenko: 89 -552 This responds to your letter of May 16, 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 Environmental Resources. Facts: You state that you are currently employed as a Sanitary Engineer III with the Department of Environmental Resources hereinafter DER. After noting that you work in the Pittsburgh Office of the Bureau of Water Quality Management and function as a Project Manager in the Grants Section, you state that your duties and responsibilities involve technical review and approval of sewage treatment plant and sewer line designs. Additionally you note that during construction you provide administrative overview of financial and construction aspects of projects. You then advised that while employed with DER you attended evening classes at Duquesne University Law School and were admitted to the Pennsylvania Bar in November 1988. In your search for employment as an attorney, you state that you have had interviews with several firms that represent cases against DER in administrative and in litigation. After stating that any restrictions on you contact with DER would severely limit your desirability as a candidate for an attorney, you request an opinion from the Commission regarding any restrictions under the Ethics Act which you could supply to prospective employers. Andrew W. Blenko, June 13, 1989 Page 2 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 General Assembly 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 Bureau of Water Quality Management -- the governmental body with which you have been associated while employed by DER- - 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. Andrew W. Blenko, June 13, 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 Bureau of Water Quality Management -- "governmental body" with which you are "associated" while employed by the DER. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the Bureau of Water Quality Management 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 Rules of Professional Conduct. 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. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent . Dopko, General Counsel