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HomeMy WebLinkAbout84-603 ThompsonSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 September 4, 1984 ADVICE OF COUNSEL Lawrence M. Thompson, Jr. 84 -603 Assistant Counsel Department of Revenue P.O. Box 1874 Harrisburg, PA 17105 Re: Attorney, Representation, Former Governmental Body, Department of Revenue Dear Mr. Thompson: This responds to your letter of August 30, 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 Revenue, hereinafter, the Department, as of August 8, 1984. While employed with the Department, you served as one of the attorneys in the Department's Office of Chief Counsel. As such, you were generally responsible for: 1. serving as staff attorney for the General Legal Division of the Office of Chief Counsel; 2. working under the supervision of and receiving assignments and projects from Assistant Chief Counsel, General Legal Division, and from the Chief Counsel; 3. drafting and composing legal memoranda, interpreting, summarizing and memorializing results of legal research in a concise and logical style; and 4. assisting Bureau of Administrative Services - escheat division's counsel. Lawrence M. Thompson, Jr. September 3, 1984 Page 2 As of August 8, 1984, you will be employed as General Counsel and Corporate Secretary for Penn Savings Bank. As such your duties will include: a. serving as corporate secretary and performing all applicable duties including attending all official bank meetings; preparing and maintaining official minutes and coordinating annual and special meetings of members, including required notifications; b. serving as the Bank's first and primary source of legal advice including coordinating files of all legal and regulatory notices; reviewing and advising on all bank contracts, leases, agreements, forms and documents, and new products; and, representing the Bank in foreclosures, bankruptcies, and other minor litigation; c. working with outside Counsel on special assignments; and d. serving as Bank Compliance Officer. 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 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 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 the Ethics Act upon your conduct insofar as that conduct constitutes the practice of law. Therefore, insofar as your conduct before the Department of Revenue in particular, the agency 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 Department of Revenue or otherwise, Section 3(e) of the Ethics Act would not operate to bar such activity. Lawrence M Thiolmison, Jr. eptember M. Page 3 If, however, the activities that you intend to undertake before the Department of Revenue -- the governmental body with which you have 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 activities in the capacity of lawyer- client and that these activities would constitute the practice of law and that the provision's 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 or employer before any entity other than the Department of Revenue would not be restricted by Section 3(e) of the Ethics Act in any event. Conclusion: 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. 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 full 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 /na cc: James Scheiner, Secretary, Revenue John Greecher, Director, Personnel, Revenue Sincerely, Aleit I' Sandra S. Christianson General Counsel