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HomeMy WebLinkAbout84-524 EdgertonAdele P. Edgerton 662 Arlington Road Camp Hill, PA 17011 Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 February 10, 1984 ADVICE OF COUNSEL RE: Attorney, Representation, Section 3(e) Dear Ms. Edgerton: 84 -524 This responds to your letter of January 18, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether Section 3(e) of the Ethics Act applies to you or restricts your activities in respect to the practice of law before the governmental body with which you had been associated. Facts: You state that you had been employed by the office of Chief Counsel, Department of Revenue, since July 5, 1983. As of January 20, 1984, you ceased working for the Department of Revenue and assumed a position as an associate - attorney in the law firm of Rhoads, Sinon & Hendershot. While employed by the Department of Revenue you were employed as an attorney and classified as the Technical Assistant to the Chief Counsel. While employed by the Office of Chief Counsel your responsibilities were primarily in the personal income tax, corporate net income tax, and other general corporate tax areas. You were occassionally involved in sales tax, inheritance tax, and lottery matters. In this capacity you prepared internal memoranda, gave oral advice, prepared private letter "rulings ", prepared chief counsel memoranda, crafted legislation, drafted regulations, and reviewed tax instruction booklets for distribution. In your new position as an associate with the law firm where you will begin work as of February 6, 1984, you will be involved in federal and state tax matters, state planning, some general trust and estate work, and general corporate matters. Finally, you note that while you were employed with the Department of Revenue, your contacts with Rhoads, Sinon & Hendershot were unofficial in nature, limited to writing one letter, the two employment interviews and phone conversations relative to those interviews. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Adele P. Edgerton February 10, 1984 Page 2 Discussion: Initially we note that Section 3(e) of the Ethics Act is applicable to persons who may become "former public employees" and may impose restrictions upon those persons activities within the first year after they leave puhlic employment. However, it must be recognized that the applicability of Section 3(e) of the Ethics Act, 65 P.S. 403(e) has been limited by court rulings. Specifically, the decision of the Commonwealth Court in Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa. Cmwlth. 88, 434 A.2d 1327 (1981), affirmed per quriam without opinion, Pa. , 450 A.2d 613 (1982), indicates that Section 3(e) of the Ethics Act could not be applied to certain persons given that it was an impermissible intrusion to the Supreme Court's authority to regulate an attorney's conduct. Consequently, the State Ethics Commission has applied this decision to mean that there can be no prohibitions imposed or restrictions applied pursuant to Section 3(e) of the Ethics Act upon your conduct upon leaving public service insofar as that conduct constitutes the practice of law. Therefore, insofar as your conduct before the Department of Revenue or as an associate with Rhoads, Sinon & Hendershot would constitute the practice of law, Section 3(e) of the Ethics Act cannot be applied to restrict you in any respect as to that activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote No. 7, 434 A.2d at Page 1331 - 1332. In this note, the Court indicates that any activity in which an attorney purports to render professional services to a client may be regulated only 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 Department of Revenue or otherwise, Section 3(e) of the Ethics Act would not bar such activity. If, however, the activities that you intend to undertake do not fall within this category, the restrictions of Section 3(e) of the Ethics Act would apply. Activities which might be considered by the Commission not to constitute the practice of law might include activities such as lobbying, negotiating on contracts, etc. However, we will assume for the purposes of this Advice, that you are not intending to undertake any activities which would not constitute the practice of law. Therefore, you would face no restrictions upon your activity given the above discussion. Conclusion: The Ethics Act does not bar your representation of any person or client insofar as that activitity constitutes the practice of law. This Advice assumes that you are planning to undertake, as an associate- attorney, activities which constitute the practice of law and, therefore, this response does not treat the question of whether any non-practice-of-law activities would be barred under Section 3(e) of 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. Adele P. Edgerton February in, 1984 Page 3 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. SSC /rdp cc: Honorable James Scheiner Robert L. Liken Joseph C. Bright Sincerely, Sandra S. Christianson General Counsel