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HomeMy WebLinkAbout92-601Louis R. Rizzuto, Esquire 92 -601 232 North Sixth Street Reading, PA 19601 Re: Attorney, Solicitor, County Board of Assessment Appeals, Representation, Section 3(g). Dear Mr. Rizzuto:: STATE ETHICS COMMISSION 309 FINANCE BUILRING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 16, 1992 This responds to your letter of May 13, 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 solicitor for a county board of assessment appeals. Facts: Noting that you have been active as the Solicitor for the Berks County Board of Assessment Appeals since August, 1988, . and that you will be leaving the position as of May 19, 1992, you request an advisory from this Commission regarding your representation of private clients before the Berks County Board of Assessment Appeals and before the Court of Common Pleas of Berks County beginning in June, 1992. You reference Section 3(g) of the Ethics Law, and the case of Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 434 A.2d 1327 (1981), which you believe sets forth an exception to Section 3(g). Based upon the above, you request an advisory from this Commission with regard to whether you are legally permitted to represent clients in cases involving appeals of tax assessments before the Berks County Board of Assessment Appeals and /or the Berks County Court of Common Pleas. Discussion: As Solicitor for the Berks County Board of Assessment Appeals, you 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. ©f 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., Louis R. Rizzuto, Esquire June 16, 1992 Page 2 State Ethics C â–ºispi pri, 544 A. 2d 1324, 1326 (1988) . Consequently, upon termination of public service, you would become a "former public employee." In Pennsylvania Public Utility Bar Association v. Thornburgh, 62 Pa. Cmwlth. 88, 434 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. As applied by this Commission, this judicial decision means 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. Soataro, 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 purports to render professional cervices to a client may only be regulated by the Supreme Court. The necessary conclusion is 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 Berks County Board of Assessment Appeals -- the governmental body with which you have been associated while employed as its Solicitor -- 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 Berks County Board of Assessment Appeals, the "governmental body" with which you are "associated" while employed as its Solicitor. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the Berks County Board of Louis R. Rizzuto, Esquire June 16, 1992 Page 3 Assessment Appeals -- such as the Berks County Court of Common Pleas -- 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 would not restrict your representation or your activities, as outlined above, insofar as those activities constitute the private 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. 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 52.12. Very truly yours, Vincent J). Dopko Chief Counsel 8