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HomeMy WebLinkAbout86-528 LascowPaul Lascow, Esquire Rohert Morris Ruilding Suite 1100 17th & Arch Streets Philadelphia, PA 19103 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 March 17, 1986 ADVICE OF COUNSEL 86 -528 Re: Attorney, Chief Counsel, Department of Insurance, Representation, Section 3(e) Dear Mr. Lascow: This responds to your letter of Fehruary 11, 1986, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissihle scope of your practice of law upon termination of your employment with the Pennsylvania Department of Insurance. Facts: You have advised that effective January 31, 1986, you terminated your employment with the Commonwealth of Pennsylvania, Insurance Department. You served as Chief Counsel to that department. As Chief Counsel to the Pennsylvania Insurance Department you were responsible for providing legal advice and representation to the Insurance Department and its commissioner. You generally managed the legal division for the Insurance Department and directed and supervised the Deputy Chief Counsel, the Chief of Litigation and Assistant Counsel. Effective February 3, 1986, you began employment with the Insurance Federation of Pennsylvania Incorporated. This corporation has, as its stated purpose, the advancement of the welfare of insurance policy holders and those engaged in all branches of the insurance business in Pennsylvania. You are employed as counsel to the federation. Your duties with the federation, therefore, include all aspects of rendering legal services to the federation including in administrative actions, the rendering of legal opinions on specific questions, advocacy of the federation's legal position. Paul Lascow, Esquire March 17, 1986 Page 2 You have now requested the advice of the State Ethics Commission as to the extent of any restrictions that may he imposed upon you within the purview of the State Ethics Act. As you have indicated in your letter of request, you are familar with the Supreme Court decision in Pennsylvania Puhlic Utility Rar 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 applicahility 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 applicahility of the Ethics Act to your situation and any restrictions that might he placed upon your conduct with respect to your practice of law and new work or employment. Discussion: In light of the recent decision in Pennsylvania Public Utility Commission Rar 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 Insurance Department, the agency 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 he 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 he regulated hy 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 Insurance Department 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 hefore the Insurance Department -- the governmental hody with which you have been associated while employed hy the Commonwealth of Pennsylvania -- do not fall within the category of the "practice of law" the prohibitions of Section 3(e) of the Ethics Act might he applicable. Activities which might he considered, by the Commission not to constitute the "practice of law" or to he 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 this Advice, that you intend to undertake your new employment only 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, he inapplicable. Paul Lascow, Esquire March 17, 1986 Page 3 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 Insurance Department -- the "governmental body" with which you are "associated" while employed by the Commonwealth of Pennsylvania. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the Insurance Department 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 enforcement proceeding initiated by the Commission, and evide conduct in any other civil or crimi nal proceedi ng, providi ng disclosed truthfully all the material facts and committed the of in reliance on the Advice given. defense in any nce of good faith the requestor has acts complained This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have challenge same, you may request that the full Commission revi personal appearance before the Commission will be scheduled a Opinion from the Commission will be issued. Any such appeal writing, to the Commission within 15 days of service of this to 51 Pa. Code 2.12. Si nc onti no Gen- al Counsel any reason to ew this Advice. A nd a formal must be made, in Advice pursuant