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HomeMy WebLinkAbout84-532 CarolCarol Cocheres, Esquire Baskin & Sears, P.C. P.O. Box 1150 Harrisburg, PA 17108 RE: Attorney, Representation, Former Governmental Body Dear Ms. Cocheres: MaJm Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 March 8, 1984 ADVICE OF COUNSEL 84 -532 This responds to your letter of February 20, 1984, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissable scope of your practice of law since termination of your employment with the Commonwealth of Pennsylvania. Facts: You indicate that you have resigned your position with the Department of Community Affairs, hereinafter the Department, as of January 31, 1984. While employed with the Department, you served as one of the attorneys in the Department's Office of Legal Services. As such, you were generally responsible for: providing legal advice to the Department's executive staff and bureaus; reviewing, drafting, and approving contracts with the Department's grant program; reviewing and approving notes and bonds issued by municipalities for the incurrence of debt under the Local Government Unit Debt Act; providing technical assistance to municipalities in the area of municipal law; and representing the Department in litigation at the administrative hearing level, in Commonwealth Court and in other courts as necessary. You have provided us with a copy of your job description which indicates the proportion of time spent on each of these tasks and that job description is incorporated herein by reference. However, you wish to hightlight two areas of responsibility in your former position. The first is your participation in the procedure when petitions for declaratory order or complaints were filed with the Department pursuant to the provisions of the Local Government Unit Debt Act. In such cases, a petition for declaratory order would usually assert the validity of the bonds or notes to be issued by a municipality. A complaint would challenge the validity of the notes and the bonds and would request the Department approve the municipality's application. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Carol Cocheres, Esquire March 8, 1984 Page 2 In such instances, you would be appointed as hearing examiner for the case, conduct a hearing, draft an opinion and an order for the case, and present them as recommendations to the Secretary of the Department. An opinion and order were then issued under the Secretary's signature with respect to the approval or disapproval of the validity of the notes and bonds to be issued by the municipality. The second area which you wish to emphasize is that you worked with contracts by drafting special contracts relating to the Department's grant programs and /or by assisting program bureaus with the drafting of such contracts. Although the selection of the grantees was the responsibility of the program bureaus, the Deputy Secretary's and the Secretary, you did participate in the drafting, review, and approval of standard contract forms for the Department's grant programs. As of February 1, 1984, you became associated in the practice of law with the firm of Baskin and Sears. You intend to practice law in the municipal finance division of the firm and your responsibilities will include preparation of documents for the issuance of notes and bonds by municipalities, municipal authorities, redevelopment authorities, school districts, and industrial development authorities. Depending on the type of notes and bonds, approval of the documents by Commonwealth agencies, including the Department of Community Affairs in the Department of Commerce may be required. If necessary, you will be called upon to submit the documents to these commonwealth agencies. For example, you indicate that municipalities generally need the approval of the Department of Community Affairs pursuant to the Local Government Unit Debt Act prior to the issuance of notes and bonds. Industrial development authorities, on the other hand, must seek and secure the approval of the Department of Commerce for the issuance of their bonds. Finally, you may also be called upon to help clients with the preparation of applications for additional state assistance and funds through the several grant programs within the jurisdiction of the Department of Community Affairs such as the housing and redevelopment assistance program, the small communities program, and the state planning assistance grant program. You indicate your awareness 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 the Ethics Act to attorneys in the regulation of their practice of law. However, you still seek clarafication of the question of the applicability of the Ethics Act to your situation and any restrictions might be placed upon your conduct with respect to your practice of law. Carol Cocheres, Esquire March 8, 1984 Page 3 Discussion: In light of the recent decision in Pennsylvania Public Utility Commission Bar Association, supra, where the Court held that Section 3(c) of the Ethics Act, 65 P.S. 403(e), was an impermissible intrusion upon the Supreme Court's authority to regulate attorney conduct, the State Ethics Commission has applied this decision to mean that there are no prohibitions under the Ethics Act upon your conduct insofar as that conduct constitutes the practice of law. Therefore, insofar as your conduct before the Department of Community Affairs in particular, 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 activitiy in which the attorney proports to render professional services to a client may only be regulated by the Suprenme 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 Community Affairs 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 Department of Community Affairs -- the governmental body with which you had been associated while employed by the Commonwealth -- do not fall within the category of the "practice of law" the prohibitions of Section 3(e) 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 are intending to undertake the activities outlined above in the capacity of lawyer - client and 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 Department -- the "governmental body" with which you are "associated" while employed by the Commonwealth. Therefore, any representation which you might undertake with respect to a client before the Department of Commerce or the Department of Environmental Resources, or any other entity other than the Department of Community Affairs would not be restricted by Section 3(e) of the Ethics Act in any event. Carol Cocheres, Esquire March 8, 1984 Page 4 Conclusion: The Ethics Act does not bar your representation or your activities, as outlined above, insofar as those activities constitute the practice of law. You are not prohibited from representing any person before the Department of Commerce or the Department of Environmental Resources in any event. It should be noted that any restrictions which might be imposed on your conduct under the Ethics Act are personal to you and do not affect or infringe upon the conduct of any of your associates or partners in 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. SSC /rdp Sincerely, C Z - i Sandra S. Christianson General Counsel cc: Shirley M. Dennis, Secretary Frederick Brooks, Jr., Chief, Personnel Management Division