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HomeMy WebLinkAbout92-549John: B.: Dunn, Esquire Matergia . & Dunn Attorneys at Law 530 Main Street Stroudsburg, PA 18360 Dear Mr. Dunn: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL 'February 27 1992 92-54 Re: Attorney, Fortner County Solicitor, Representation, Section 3 =(g) This responds to your letter of January 23, 1992, 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 county solicitor. Facts: As the former Solicitor for Monroe County, you seek the advice of the State Ethics Commission. You were engaged as the Monroe County Solicitor through January 5, .1992, but are no longer employed or in any other way affiliated with the County as a practicing attorney. You currently have a client who is requesting your representation on a request for assessment relief before the Monroe County Board of Assessment and Appeals. The Board which would handle the request would be the County Commissioners sitting as the elected (as opposed to the appointed) Board of Assessment Appeals pursuant to the 4th through 8th =class county assessment code. You note that Section 3(g) of the Ethics Law gives you pause to undertake representation of your client before the Board of Assessment Appeals. You request an advisory as to whether you may seek assessment relief on behalf of your client before the ;elected .County Commissioners sitting, pursuant to statute as the County Board :of Assessment and Appeals. You direct the attention of the Commission to the case of Ballou v. State 'Ethics Commission, 491 Pa. 127 4 36 A.2d 186 (1981), and cases decided subsequent thereto. John B. Dunn, Esquire February 27, 1992 Page 2 Discussion: As the Solicitor: for Monroe. County, yom would be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the regulations of this Commission, and subject to the Ethics Law. 65 P.S. 5402; 51 Pa. Code S1.1. See. also, Spataro,. Opinion 89 -009 at 4; Maunus v. Com., State Ethics Commission 544 A.2d 1324, 1326 (1988). Consequently, upon termination of public service, you became a. "former public employee." In Pennsylvania Public Utilitv Bar Association v. Thornburgh, 62 Pa Cmwlth. 88, 434 A.2d 1327 (1981), affirmed per curiam, 498 Pa. 589, 450 A.2d 613 (1982), the Court held that Section 3(e) of former Ethics Act 170 of 1978, now Section 3(g) of reenacted and amended Act 9 of 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 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. at. pages 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 Monroe County Commissioners, or any other board or entity for which yoir served as Solicitor in your former capacity as Monroe County Solicitor, db not fall within that. 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 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 John B. Dunn, Esquire February 27, 1992 Page 3 ruling would, therefore, be inapplicable. An4rews, 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 "governmental body" with which you were "associated" while employed by Monroe County as its Solicitor. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the County Commissioners and /or any other board or entity which you served as ,Solicitor in your capacity as Solicitor for Monroe County 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 County Code and /or 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 S2.12. Very truly yours, Vincent J. Doak Chief .Counsel