HomeMy WebLinkAbout80-720 WagnerDear Mr. Wagner:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
October 16, 1980
ADVICE OF COUNSEL
Karl A. Wagner, Jr., Esquire
Beecher, Wagner, Rose & Klemeyer
Attorneys and Counselors At Law
402 Broad Street
Milford, PA 18337
RE: Solicitors, Dual Employment as Criminal Counsel
80 -720
This responds to your communication of September 22,
1980, in which you request an Opinion as to the duties and
obligations of the members of your firm under the Ethics
Act. •
Issue: In your communication you request an Opinion as to
the-existence of a conflict or an appearance of conflict
when members of your firm, retained as solicitor for a
township, also obtain employment as counsel for a defendant
in a criminal complaint where the complaint was filed by a
police officer for the township which you or a member of
your firm advised as solicitor.
Facts: You indicate that you or members of your firm are
solicitors for several townships and boroughs in Pike
County. Several of these townships and boroughs employ
policemen. These policemen, in the course of their duties,
register criminal complaints against individuals. On
occasion those persons named in the criminal complaints
filed by such policemen in the townships and boroughs for
which you are solicitor, seek to retain you or a member of
your firm as counsel.
Karl A. Wagner, Jr., Esquire
October 16, 1980
Page 2
Discussion: There is no particular provisions of the Ethics
Act which would prohibit such retention as counsel for the
criminal defendant per se. In fact, the Commission has
rendered opinions which indicate that a solicitor for a
borough, for example, may simultaneously represent two
different boroughs. See King, 79 -034.
However, the Ethics Act in Section 3(a) precludes a
public official from using his public office or any confi-
dential information gained through his public office to
obtain financial gain, other than the compensation provided
for him, for himself or any member of his immediate family
or a business with which he is associated. In addition,
Section 1 of the Ethics Act indicates that holders of public
office must avoid conflicts and the appearance of a conflict
with the public trust. Thus, while there is no inherent
conflict of interest in the employment of your firm or a
member of your firm as solicitor and council for criminal
defendants, such employment as criminal counsel cannot have
been secured by the use of your "public office," that is,
the solicitorship.
In addition, confidential information which may be
gained from your position as solicitor may not be used to
enhance the defense rendered in a criminal proceeding in
which you are counsel. For example, if, in your position as
solicitor your firm or a member thereof has rendered advice
to the municipality regarding the enforcement, defenses, or
legal objections to an ordinance, this information may not
be utilized by you in your defense of a criminal defendant
charged with violating that ordinance.
Finally, if you or a member of your firm, as solicitor,
had rendered advice on a particular matter in regard to an
individual complaint or person and that person is subsequently
named as a defendant in a criminal complaint, it is, of
course, clear that you may not act as counsel in such a
matter.
Conclusion: Employment by you or a member of your firm as
solicitor and as counsel for a criminal defendant is not per
se a violation of Act 170, even where the complaint registered
against the defendant was filed by a member of the police
force of the municipality which you serve as solicitor. In
regard to other areas of possible conflict of interest your
conduct and that of your firm should conform to the require-
ments outlined above.
Karl A. Wagner, Jr., Esquire
October 16, 1980
Page 3
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 avail-
able 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 may be scheduled and a formal Opinion
from the Commission will be issued. You should make such a
request or indicate your disapproval of this Advice within
the next 30 days.
SSC /rdp
Sincerely,
� C ; /
(:'2,
Sandra S. Christianson
General Counsel