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HomeMy WebLinkAbout90-018 AndrewsDear Mr. Andrews: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG. PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Daneen E. Reese DATE DECIDED: October 5, 1990 DATE MAILED: October 29, 1990 90 -018 Mr. W. Thomas Andrews 302 1st National Bank Bldg. New Castle, PA 16101 Re: Attorney, State Ethics Commission, Former Public Official, Commissioner, Solicitor, Domestic Relations Office, Representation, Section 3(g). This responds to your letter of August 29, 1990, in which you requested an opinion from the State Ethics Commission. What restrictions does the Public Official and Employee Ethics Law impose upon the permissible scope of the practice of law upon a former public official after termination of service with an independent agency of the Commonwealth of Pennsylvania and with a county domestic relations office. II. Factual Basis for Determination: You have served as Solicitor for the Lawrence County Domestic Relations Office from November 1983 until June 30, 1990. In that position your role was a neutral one with the exception of the prosecution of civil paternity cases and the enforcement of support orders through contempt of court proceedings. After noting that you will probably have occasion to represent clients in domestic relations cases, you advise that the Domestic Relations Office is an arm of the Lawrence County Court of Common Pleas which is administered by the President Judge. After referencing that your solicitorship was court - related employment, you express your belief that you should be able to practice before the Domestic Relations Office since it is adjunct of the Court of Common Pleas. Although you have not so noted, you served Mr. W. Thomas Andrews Page 2 as a Commissioner with this Commission from 1984 until June 30, 1990. You conclude by requesting an opinion as to the application of the Ethics Law to this matter. III. 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, Act 170 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, Act 9 of 1989, to your situation and any restrictions that might be placed upon your conduct with respect to your practice of law before the Lawrence County Domestic Relations Office, hereinafter DRO. In Pennsylvania Public Utility Commission Bar Association, supra, the Court held that Section 3(e) of the Ethics Act of 1978 was an impermissible intrusion upon the Supreme Court's authority to regulate an attorney's conduct; this Commission has applied this decision to mean that there are no prohibitions under Section 3(g) of the current Ethics Law upon activities insofar as that conduct constitutes the practice of law. Spataro, Opinion 89 -009. Therefore, insofar as your conduct before this Commission or the DRO with which you have been 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 bodies with which you have been associated, Section 3(g) of the Ethics Law would not operate to bar such activity. If, however, the activities that you intend to undertake before the governmental bodies with which you have been associated do not fall within the category of the "practice of law ", the prohibitions of Section 3(g) of the Ethics Law might be applicable. Activities which might be considered by this Commission, not to constitute the "practice of law" or to be undertaken in the capacity as lawyer - client, might include activities such as lobbying. However, we will assume, for the purposes of this Opinion, that you intend to undertake these activities in the capacity of lawyer- client, 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. 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 Mr. W. Thomas Andrews Page 3 regulate your conduct, except with respect to this Commission or the DRO which would constitute your former governmental bodies. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than noted above 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 been considered. Specifically not addressed in this Advice is the applicability of the Rules of Professional Conduct. IV. Conclusion: Section 3(g) of the Ethics Law does not restrict a former public official /employee from representation or other activities, as outlined above, insofar as those activities constitute the practice of law. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, ./f Robert W. Brown, Vice Chair