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HomeMy WebLinkAbout97-521 PokornySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 10, 1997 Peter Pokorny 1849 Creek View Drive New Cumberland, PA 17070 97 -521 Re: Attorney, Legislative Reference Bureau, Representation, Section 3(g). Dear Mr. Pokorny: This responds to your letter of January 8, 1997, 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 Legislative Reference Bureau. Facts: You terminated your position as Drafting Attorney with the Legislative Reference Bureau (LRB) effective January 15, 1997. The LRB is the agency which drafts all legislation introduced into the General Assembly and does work for both parties and both Chambers. You state that you were hired and paid by the LRB and report directly to the Assistant Director. You indicate that your position has no job classification, however, you enclosed a copy of your position description which is incorporated herein by reference. On January 13, 1997, you began working for the Pennsylvania Bar Association (PBA) as a Legislative Liaison. Your duties with the PBA will include monitoring legislation affecting the Bar Association, helping the committees draft legislation, and advocating the positions of the PBA. You will also be required to do some lobbying before the General Assembly. You state that you are aware of the restrictions of Section 3(g) of the Ethics Law and specifically inquire as follows: 1. Would Section 3(g) would prohibit you from representing the PBA before the General Assembly for a period of one year following termination of service with the LRB? 2. Would your former governmental body be the LRB or the General Assembly? 3. Does Section 3(g) apply to attorneys? Pokorny, 97 -521 February 10, 1997 Page 2 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 to 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 1 978, 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 LRB -- the governmental body with which you have been associated while employed by the LRB -- 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 the LRB, the "governmental body" with which you are "associated" while employed by the LRB. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the LRB 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. Pokorny, 97 -521 February 10, 1997 Page 3 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 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. Vincent J. Dopko Chief Counsel