Loading...
HomeMy WebLinkAbout83-531 KennardMailin Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 April 8, 1983 ADVICE OF COUNSEL Mr. Norman James Kennard Pennsylvania Public Utility Commission 107 North Office Building Harrisburg, PA 17120 Re: Attorney, Representation before former governmental body Dear Mr. Kennard: 83 -531 This responds to your letter of February 24, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask whether Section 3(e) of the Ethics Act applies to you in your practice of law before your former governmental body. Facts: You are currently employed as legal counsel to one of the Commissioners at the Pennsylvania Public Utilities Commission (PUC). You will apparently be terminating your employment as such, and you are concerned about the applicability of §403(e) of the Ethics Act to any future outside practice of law you may have before the PUC. Discussion: As you recognized in your request for advice, the applicability. of §3(e) of the Ethics Act, 65 P.S. §403(e), has been limited by recent court decisions. In light of the decision of the Commonwealth Court in Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa. Cmw_lth. 88, 434 A.2d 1327 (1981), aff'd. per curium without opinion, Pa. , 450 A.2d 613 (1982), 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 attorney conduct, the State Ethics Commission has applied this decision to mean that there can be no prohibitions imposed under the Ethics Act upon your conduct insofar as that conduct constitutes the practice of law. Therefore, insofar as your conduct before the PUC would constitute the practice of law, Section 3(e) of the Ethics Act cannot be applied to restrict that activity. Particular reference should be made to the decision of the Commonwealth Court at footnote 7, 434 A.2d at 1331 -1332. In this note the Court indicates that any activity in which an attorney purports 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 State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Norman James Kennard April 8, 1983 Page 2 you would represent a client as a lawyer before the PUC, Section 3(e) of the Ethics Act would not bar such activity. If, however, the activities that you intend to undertake before the PUC -- the governmental body with which you were associated -- do not fall within this category, the Section 3(e) restrictions would apply. Activities which might be considered by the Commission not to constitute the practice of law might include activities such as lobbying, negotiating on contracts, etc. However, we will assume that for the purposes of this Advice you are intending to undertake activitie$ which would constitute the practice of law. While there is some question regarding whether, as legal counsel to a particular Commission, you were associated with the PUC or the Office of one Commissioner, as a "governmental body," the Commission need not undertake full treatment of that question in this Advice because you as an attorney are not subject to the restrictions delineated by Section 3(e) in your practice of law. Conclusion: The Ethics Act does not bar your representation insofar as that activity constitutes the practice of law before the PUC. This Advice assumes that you are planning to undertake activities which constitute the practice of law, and therefore this response does not treat the question of whether any non - practice -of -law activities would be barred before the PUC or the particular Commissioner whom you served as legal counsel. 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. KW /na tC ; S 4 &rrf'1 S '►'ear a-n Sincerely, aaridra S. stianson General Counsel