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HomeMy WebLinkAbout95-621 NivenKatherine L. Niven, Esquire Law Offices of Thomas S. Cook 212 Locust Street Suite 601 Harrisburg, PA 17101 Dear Ms. Niven: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 30, 1995 No. 95 -621 Re: Attorney, Labor and Industry, Workers' Compensation, ALJ, Representation, Section 3(g). This responds to your letter of October 30, 1995, 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 a Workers' Compensation Judge with the Commonwealth of Pennsylvania. Facts: You have resigned from your position as a Workers' Compensation Judge with the Commonwealth of Pennsylvania and have joined, as a licensed attorney, the Law Offices of Thomas S. Cook & Associates. You seek advice on the restrictions and their duration, as imposed by the Ethics Law. Discussion: 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), dealt with the applicability of Section 3(e) of the Ethics Act of 1978 to attorneys in the regulation of their practice of law. However, 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 Com Niven, No. 95 -621 November 30, 1995 Page 2 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 Department of Labor and Industry (L &I) -- the governmental body with which you have been associated while employed by L &I -- 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 your activity, even if Section 3(g) of the Ethics Law were to be applicable, would not regulate your conduct, except with respect to L &I, the "governmental body" with which you are "associated" while employed by L &I. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than L &I 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. Niven, No. 95 -621 November 30, 1995 Page 3 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787- 0806) . Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. erely, V "ncent © D pko Chief Counsel