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HomeMy WebLinkAbout93-605 KorposhSeptember 22, 1993 Michael J. Korposh, Esquire Tucker Arensberg, P.C. 116 Pine Street Harrisburg; PA 17101 Dear Mr. Korposh: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL 93 -605 Re: Attorney, Counsel to the President Pro Tempore, Pennsylvania State Senate, Representation, Section 3(g). This responds to your letter of September 20, 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 upon termination of your employment as Counsel to the President Pro Tempore of the Pennsylvania State Senate. Facts: You state that you have terminated your employment as Counsel to the President Pro Tempore of the Pennsylvania State Senate, Senator Robert J. Mellow, as of September 6, 1993. You joined the law firm of Tucker Arensberg, P.C. as an associate. Your practice with Tucker Arensberg will be in the areas of administrative law, corporate and business law, litigation and government relations. You have included your employment history with the Pennsylvania State Senate in your letter and such information is incorporated herein by reference. Based upon the fact that your areas of practice may cause you to come in contact with members of the Senate and their staff, you request advice from the State Ethics Commission as to restrictions or prohibitions under the Ethics Law as it relates to your employment as a private attorney. Discussion: As Counsel to the President Pro Tempore of the Pennsylvania State Senate you were a public employee as that term is defined under the Public Official and Employee Ethics Law and the Regulations of this Commission 65 P.S. 5401, et sea.; 51 Pa. Code 511.1, et sea. However, the case of Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327, 62 Pa. Commw. 88 (1981), aff.d per curiam, 450 A.2d 613, 498 Pa. 589 (1982), Korposh, 93 -605 September 22, 1993 Page 2 dealt with the applicability of Section 3(e) of the Ethics Act of 1978 to attorneys in the regulation of their practice of law. Accordingly, you seek clarification on the applicability of the current Public Official and Employee Ethics Law to your situation and any restrictions that might be placed upon your conduct with respect to your practice of law and new work and /or employment. In Pennsylvania Public Utility Commission Bar Association, supra, the Court held that former Section 3(e) of the Ethics Act of 1978, the predecessor of Section 3(g), 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 the 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 before the Pennsylvania State Senate, the governmental body with which you have been associated while employed by the President Pro Tempore, 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 is considered by the Commission not to constitute the "practice of law" or not to be undertaken in the capacity as lawyer is lobbying. However, we will assume, for the purposes of this Advice, that you intend to undertake these activities in the capacity of a lawyer and that these activities would constitute the practice of law. Therefore the provisions of Section 3(g) of the Ethics Law, pursuant to the mandate of the Supreme Court's ruling, would be inapplicable. Andrews, Opinion 90 -018. In any event, you should be advised that your activity, even if Section 3(g) of the Ethics Law were to be applicable, would not regulate your conduct, except with respect to the Pennsylvania State Senate, the "governmental body" with which you were "associated" while employed by the President Pro Tempore. Therefore, any representation which you might undertake with Korposh, 93 -605 September 22, 1993 Page 3 respect to a client or employer before any entity other than your former governmental body would not be restricted by Section 3(g) of the Ethics Law in any event. 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. Further, since public employment has been terminated, as outlined above, the Ethics Law requires that a Statement of Financial Interests be filed for the year following termination of public service. 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. such. This letter is a public record and will be made available as 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 513.2(h). ry truly yours, incent Dopko Chief Counsel