HomeMy WebLinkAbout84-630 McHughState Ethics Commission
J08 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108 -1470
December 5,1984
ADVICE OF COUNSEL
Patrick M. McHugh, Esq. 84 -630
Suite 601, Widener Building
1339 Chestnut Street
Philadelphia, PA 19107
Re: Attorney, Liquor Control Board Representation, Sec. 3(e),
Dear Mr. McHugh:
This responds to your letter of November 20, 1984, 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 Liquor Control
Board.
Facts: You indicate that you will or have resigned or left your position with
the Liquor Control Board, hereinafter, the LCB, as of October 26, 1984. While
employed with the LCB, you served as an attorney. As such, you were generally
responsible for:
a. Supervising other attorneys within the Office of Chief Counsel of the
LCB with total responsibility for highly complex and high impact
legal functions;
b. Conducting litigation of the upmost importance and complexity,
frequently involving large sums of money and legal principles not
clearly established or defined which may be contested by law firms of
outstanding abilty;
c. Supervising and interacting with staff attorneys, clerical and
support personnel engaged in the legal functions and supplying
legal advice to the LCB;
d. Rendering opinions on the legality and propriety of all the rules and
regulations of the LCB and advising the LCB on interpretations law
and courses of legal action;
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Patrick McHugh, Esq.
December 5, 1984
Page 2
e. Representing that the LCB and important hearings and investigations
before administrative tribunals;
f. Advising committees with reference to revision, codification or
ammendments to and drafting of existing or new legislation.
Upon leaving this position or employment, you will enter private practice
as an attorney. As such you will be responsible for or undertake such
activities as are generally related to this practice.
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 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 LCB 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 LCB 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
governmental body with which you have been associated - -the LCB -- 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
Mr. Patrick McHugh, Esq.
December 5, 1984
Page 3
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.
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 LCB -- the "governmental body" with which you are
"associated" while employed by the LCB. Therefore, any representation which
you might undertake with respect to a client or employer before any entity
other than the LCB would not be restricted by Section 3(e) of the Ethics Act
in any event.
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.
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 /sfd
Sincerely,
Sandra S. Chri tianson
General Counsel