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HomeMy WebLinkAbout83-538 BaldwinMr. William E. Baldwin, Member House of Representatives Commonwealth of Pennsylvania 302 Mahantongo Street Pottsville, PA 17901 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPI-jONE: (717) 783 -1610 April 20, 1983 ADVICE OF COUNSEL RE: Representative; Limitations on Law Practice Dear Representative Baldwin: 83 -538 This responds'to your letter of February 28, 1983, in_which you requested advice from the State Ethics Commission. Issue: You are interested in determining what limitations exist regarding your practice of law. Facts: You currently serve as a Member of the House of Representatives of the Commonwealth of Pennsylvania. You are of the current understanding that you are not precluded from handling criminal cases or civil actions in which the Commonwealth or a Commonwealth agency is named as a defendant as long as the matter is taken before a judicial tribunal, rather than a state agency in a position to exercise discretion in the decision making process. Your firm is handling a case about which you are particularly concerned. It involves a medical malpractice case against a doctor who treated a patient in the dispensary of one of the State Hospitals. The case is directed primarily against the physician, however it was also necessary to name the hospital as a defendant. You would like to know whether there is any problem with having either yourself or a member of the firm representing the plaintiff. You state that you understand that there are certain ministerial functions before a state agency on which you may represent a client, such as license applications, but that there are areas where the decision - making process is more of a discretionary nature and from which you would be precluded. You would like to know of the limitations on your representation in such areas, and you also would like to know whether your law firm would be subject to any limitations where you are personally precluded from representing a client. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. William E. Baldwin, Member April 20, 1983 Page 2 Discussion: Initially, the Ethics Commission notes that, as a statutory entity, its jurisdiction and its power is strictly limited to the authority granted it in 65 P.S. §401 et seq. Thus, it has no authority to interpret and /or enforce the provisions of other codes, for example, the Code of Professional Responsibility, and this advice should not be construed as clearance to act under other Commonwealth laws. We do note, however, that as an elected official you are considered a "public official" within the purview of the provisions of the Ethics Act. Addressing the concerns presented under the Act itself, it is clear that neither the Ethics Act nor any opinion of the Commission imposes a prohibition against your practice of law while serving as a legislator. In past decisions, the Commission has indicated that a legislator, for example, may serve simultaneously as a legislator and as a consultant without violating the Ethics Act. See Geist, 79 -011. See also Manderino, 80- 027 -C. A similar decision has been rendered in relation to an employee of a legislative committee seeking employment with another legislatively created commission. See Berson, 79 -039. r In addition, the Commission has determined that with reference to an analogous section of the Ethics Act, Section 3(e), 65 P.S. §403(e), any disqualification which might be applicable to a particular public employee or public official would not "taint" any member of the former public employee's or official's firm. Thus any prohibitions or requirements which might be imposed on a particular public employee or public official would not give rise to application of similar disqualifications as to members of the firm with which that particular public employee or official is or might become associated. See Morris, 80 -039 and Pratt, 82 -570. We do note that your question raises concerns relating to Section 3(a) and 3(b) of the Ethics Act, 65 P.S. §403(a) and (b) respectively. Specifically, there is a general question as to whether legislators may themselves serve as advocates before the State agencies. This matter has been the subject of extensive review by various states. However, the Pennsylvania State Ethics Commission has not provided any precedent in this matter which I may relate to you at this time. This general question, however, may be presented to the Commission for their potential review and disposition as necessary. Without a specific factual circumstance, I am unable to provide a general response as you request. Should you wish to pursue the question of whether you may personally appear and represent clients before state agencies, I suggest you present a specific case or question to the State Ethics Commission on this point. With regard to the specific court case with which you are concerned, the State Ethics Commission has produced no precedent which would preclude your representing the plaintiff in the medical malpractice case in court. In fact, the State Ethics Commission could not realisticly preclude practice or action Mr. William E. Baldwin, Member April 20, 1983 Page 3 before a judicial tribunal. It follows that because you are not personally precluded from representing the plaintiff in the above - mentioned court case, neither are the members of your 'firm precluded from such representation. In this regard, and with regard to appearance before State agencies even if you might be personally barred from representing a client, under the Ethics Act, your firm would not be restricted from such representation. Of course, Sections 3(a) and 3(b) of the Ethics Act mentioned above provide that no public official may use his public office or confidential information received through public office to obtain financial gain other than compensation provided by law for himself, his family, or a business with which he is associated. In addition, these Sections prohibit a public official or candidate for public office from receiving any thing of value, including the promise of future employment, on the understanding that his official conduct would be influenced thereby. See 65 P.S. §403(a) and (b). Any conduct undertaken must conform to these requirements. Conclusion: The Ethics Act does not prohibit simultaneous service as a member of the House of Representatives and as a member of a law firm. Any restrictions that might possibly be imposed upon a member of the House of Representatives are restricted to.the individual public official and do not disqualify the entire firm or impose any limitations upon the law partners of the public official. Assuming that the malpractice case with which you are concerned is to be tried before a judicial tribunal, the State Ethics Act and decisions of the State Ethics Commission impose no restriction upon your representation before a judicial tribunal in this or any matter. With regard to representation before state agencies, the Commission has not yet provided any precedent in the matter, thus, the question is still open for review and should you wish to provide a specific factual question or pursue this matter further, please advise and the question will be presented to the State Ethics Commission. This response is provided to answer as many items /issues you raise as possible. Pursuant to Section 7(9)(1i), 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. Mr. William E. Baldwin, Member April 20, 1983 Page 4 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request 4 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. CW /rdp Sincerely, Sandra S. Christianson General Coun el