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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