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HomeMy WebLinkAbout93-518 HagartyLois S. Hagarty, Esquire Pepper, Hamilton & Scheetz 200 One Keystone Plaza North Front & Market Streets P.O. Box 1181 Harrisburg, PA 17108 -1181 Dear Ms. Hagarty: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 23, 1993 93 -518 Re: Former Public Official; House of Representatives; Representative; Attorney; Private Practice of Law; Representation; Section 3(g). This responds to your letter of January 5, 1993, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding the permissible scope of your practice of law given the termination of your service as a Representative with the Commonwealth of Pennsylvania, House of Representatives. Facts: You state that you left the Pennsylvania General Assembly on November 30, 1992, after twelve years and eight months of service. During your tenure in the Legislature, you served on a variety of committees, task forces, and commissions. You have submitted a copy of your resume which document is incorporated herein by reference. Your resume indicates that you served as a Member of the House of Representatives commencing in 1980. You state that you are an attorney at law-admitted to practice in Pennsylvania. On January 4, 1993, you joined the law firm of Pepper, Hamilton & Scheetz and are working out of the firm's Harrisburg and Philadelphia offices. You request an opinion outlining the nature of any constraints which might restrict your eligibility to represent clients in practice before any agency of the Commonwealth or to advocate the interests of those clients before the General Assembly or the Governor's Office. You state your understanding that the response to your request will be an opinion based upon the State Ethics Law administered by the State Ethics Commission and as construed by Id. Lois S. Hagarty, Esquire February 23, 1993 Page 2 that Commission, as well as relevant appellate court decisions. Furthermore, it is your understanding that one may reasonably rely upon the opinion letter provided and that conformity with the instructions contained therein constitutes an absolute defense against charges or complaints questioning that behavior that are adjudicated by the Commission. Discussion: Before addressing your specific inquiry, three points must initially be noted. First, although you have requested an opinion, your inquiry has been docketed for an Advice of Counsel because the statutory and regulatory criteria -- rather than the requestor -- determine which type of document shall be issued. See, 65 P.S. SS407(10), (11); 51 Pa. Code § §2.11 -2.12, 2.14. Second, as to the effect of an Advice of Counsel, 65 P.S. S407(11) provides, in pertinent part: . . . It shall be a complete defense in any enforcement proceeding initiated by the commission, and evidence of good faith conduct in any other civil or criminal proceeding, if the requester, at least 21 working days prior to the alleged violation, requested written advice from the commission in good faith, disclosed truthfully all the material facts and committed the acts complained of either in reliance on the advice or because of the failure of the commission to provide advice within 21 days of the request or such later extended time. . . . Third, you have posed a narrow inquiry as to your proposed conduct which would constitute the private practice of law. This advisory shall be limited to responding to that narrow inquiry. However, you may wish to review Nahill, Advice No. 92 -659, as to the restrictions imposed upon a former Representative by Section 3(g) of the Ethics Law with regard to conduct which would not constitute the private practice of law. Having set forth the above three initial points, your inquiry will now be addressed. In Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327, 62 Pa. Commw. 88 (1981), affirmed per curiam 450 A.2d 613, 498 Pa. 589 (1982), the Court held that Section 3(e) of the Ethics Act of 1978 (the predecessor of Section 3(g) of Act 9 of Lois S. Hagarty, Esquire February 23, 1993 Page 3 1989) 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(g) of the current Ethics Law upon your conduct insofar as that conduct constitutes the practice of law. Spataro, Opinion 89 -009. Therefore, insofar as your conduct before an agency or entity with which you were associated, would constitute the practice of law, Section 3(g) of the Ethics Law cannot be applied to restrict that proposed activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote 7, 434 A.2d at page 1331 -1332. In this note, the Court indicated that any activity in which the attorney purports to render professional services to a client may only be regulated by the Supreme Court. We must conclude that to the extent that you would represent a client, as a lawyer, before the governmental body with which you were associated, Section 3(g) of the Ethics Law would not operate to bar such activity. Thomas, Opinion 90 -018. If, however, the activities that you intend to undertake do not fall within the category of the "practice of law ", the prohibitions of Section 3(g) of the Ethics Law might be applicable. An activity 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 be lobbying. However, we will assume, for the purposes of this Advice, that you intend to undertake these activities in the capacity of lawyer- client, that these activities would constitute the practice of law, and that the provisions of Section 3(g) of the Ethics Law, pursuant to the mandate of the Supreme Court's ruling would, therefore, be inapplicable. Andrews, Opinion 90 -018. In any event, you should be advised that, even if Section 3(g) of the Ethics Law were to be applicable, said Section would not regulate your conduct except with respect to the "governmental body" with which you were "associated" while serving with the General Assembly. The Commission has previously determined that the "governmental body" with which a member of the House of Representatives has been associated upon leaving the House of Representatives includes the House itself, any entity on which the member served as ex officio member and any entity on which the member served by virtue of legislative appointment.' See, Seltzer, Opinion 80 -004; Goebel, Opinion 80 -045; Geesev, Opinion 80 -046; and Geesev, Opinion 80 -057. See also, Barber, Advice No. 86 -635; Nahill, Advice No. 92 -659. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the "governmental body" with which you were associated would not be restricted by Section 3(g) of the Ethics Law in any event. Lois S. Hagarty, Esquire February 23, 1993 Page 4 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the propriety of any other statute, code, regulation or ordinance other than the Ethics Law has not been considered. Specifically not addressed in this Advice is the applicability of the Rules of Professional Conduct. Conclusion: Section 3(g) of the Ethics Law does not restrict your representation or your activities, as outlined above, insofar as those activities constitute the practice of law. Pursuant to Section 7(11), 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. Very truly yours, Incent J. lfopko Chief Counsel