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HomeMy WebLinkAbout87-600 McCarthyMichael T. McCarthy, Esquire 3813 Candle Light Drive Camp Hill, PA 17011 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 August 6, 1987 ADVICE OF COUNSEL 87 - 600 Re: Attorney, Office of State Senator, Representation, Section 3(e) Dear Mr. McCarthy: This responds to your letter of July 20, 1987, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissible scope of your practice of law upon termination of your employment with the Office of a Pennsylvania State Senator. Facts: You indicate that you are currently legal counsel to Pennsylvania State Senator Edward P. Zemprelli, who is the Democratic Leader of the State Senate. You also serve as the attorney to the members of the Democratic Caucus. You served in this capacity from February of 1980 to the present. You indicate that you will be taking a position with a law firm in Harrisburg and will be engaged in the practice of law wherein you will represent clients before the judicial, legislative and executive branches. You stated that you will be representing clients before the General Assembly, including Senator Zeaprelli's Office. You ask for an opinion, noting prior advices to attornys who have worked before the executive and legislative branches. Discussion: In light of the decision in Pennsylvania Public Utility Commission Bar Association, 62 Pa. Commw. 88, (1981), affirmed 498 Pa. 589, (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 an attorney's conduct, the State Ethics Commission has appplied 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. Michael T. McCarthy, Esq. August 6, 1987 Page 2 Therefore, insofar as your conduct before Senator Zemprelli's Office and offices of the members of the Democratic Caucus, hereinafter collectively called the Offices, would constitute the practice of law, Section 3(e) of the Ethics Act cannot be applied to restrict that proposed activity. If, however, the activities that you intend to undertake before the Offices - -the governmental body with which you have been associated while employed by the Commonwealth do not constitute the "practice of law" the prohibitions of Section 3(e) of the Ethics Act might be applicable. Activities which might be considered, by the Commission, not to constitute the "practice of law" or to be undertaken in the capacity as lawyer- client, might include activities such as lobbying and negotiating on contracts. 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 Offices - -the "governmental body" with which you are "associated" while employed by the Commonwealth. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the Offices, 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 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. Sincerely, .o Vincent . Dopko General Counsel