Advisory Opinion No. 2015-20

Rhode Island Ethics Commission 

Advisory Opinion No. 2015-20

Approved: April 14, 2015

Re:  Daniel P. McKiernan


The Petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from entering into a law partnership with two other attorneys who are registered legislative lobbyists.


It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a legislator serving in the Rhode Island House of Representatives, a state elected position, is not prohibited by the Code of Ethics from entering into a law partnership with attorneys who are registered legislative lobbyists.  Beyond that, pursuant to the Rhode Island Supreme Court’s decision Irons v. Rhode Island Ethics Commission, 973 A.2d 1124 (R.I. 2009), the Ethics Commission is prohibited from questioning or regulating the Petitioner’s legislative acts that may impact himself, his new law firm, its partners or their lobbying clients.[1]

The Petitioner is a newly elected member of the Rhode Island House of Representatives.  In his private capacity, the Petitioner is self-employed as an attorney-at-law who concentrates in the practice area of civil litigation.  He states that he is considering entering into a law firm partnership with two other attorneys, Patrick J. Quinlan (“Quinlan”) and Christy B. Durant (“Durant”).  The Petitioner states that both Quinlan and Durant are registered lobbyists who are paid by their lobbying clients to help persuade the General Assembly to act in ways that are consistent with their clients’ financial interests.

The Petitioner represents that the proposed partnership would include the following terms:  (a) the name of the law firm would be “Quinlan, McKiernan & Durant;” (b) each of the three partners would own an equal share of the law firm; and (c) each partner’s revenue from the firm would be attributable to either originating a client for the firm or performing work for a client that another partner originated.  Accordingly, a partner would not receive any revenue from clients that originated with other partners unless he or she directly worked on that client’s matter.  The Petitioner states that he would neither originate any lobbying clients for the firm nor perform any lobbying work for the firm’s clients.  Therefore, the Petitioner represents that he would not share in any of the firm’s revenue that is generated from legislative lobbying activities.

Furthermore, the Petitioner asserts that he intends to recuse from participation in all legislative matters that involve Quinlan, Durant or their lobbying clients.  He states that, at his request, he has not been assigned to those legislative committees (Corporations and Health Education & Welfare) before which Quinlan and Durant most often represent their lobbying clients.  Given these facts and representations, the Petitioner asks if the Code of Ethics prohibits him from entering into this proposed partnership.

The Code of Ethics prohibits a public official from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, business associate, or any business by which he is employed or which he represents.  R.I. Gen. Laws § 36-14-5(d).  More generally, a public official is prohibited from participating in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest.  Section 36-14-5(a).  A substantial conflict of interest occurs if the official has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity.  Section 36-14-7(a).  Under Commission Regulation 36-14-5002, a public official must also recuse if his employer or business associate appears or presents evidence or arguments before his agency.

Furthermore, a public official may not accept other employment that will either impair his independence of judgment as to his official duties or employment or require him to disclose confidential information acquired by him in the course of his official duties.  Section 36-14-5(b).  Finally, section 36-14-5(e) of the Code provides that a public official is not permitted to represent himself or any other person or entity before an agency of which he is a member or by which he is employed.

Here, none of the above provisions of the Code of Ethics prohibit the Petitioner from being a partner in a law firm that engages in legislative lobbying.  Instead, while the Code generally allows public officials to enter into most private business associations, once such associations are formed the Code acts to limit the public official’s ability to use his public office to benefit or impact such business associates.  This is accomplished by requiring the public official to recuse from participating in matters that are likely to involve or financially impact his business associate or employer.

For example, a very similar set of facts was raised in Advisory Opinion 2003-2, wherein a State Representative sought guidance as to any restrictions the Code of Ethics imposed on him in light of: (a) his private employment with an organization that employed lobbyists at the General Assembly; and (b) his wife’s employment as a legislative lobbyist before the General Assembly for a different Rhode Island organization.  The Commission did not find that the petitioner’s service as a State Representative was incompatible with his private employment or his wife’s employment or lobbying.  However, given such employment and lobbying activities the Commission advised the Representative that he would have to recuse from any House of Representatives votes, hearings or other legislative matters where his spouse or employer appeared to present testimony, support or opposition.  More generally, the Representative was cautioned to recuse from any matters in the House that were likely to financially impact him, his employer or his spouse.

Prior to 2009, we would have given similar advice to the instant Petitioner.  However, in that year the Rhode Island Supreme Court issued its decision in Irons, holding that the Ethics Commission no longer had the authority to question or regulate the legislative acts of members of the General Assembly.  973 A.2d at 1134.  Accordingly, while we note with support this Petitioner’s assertion that he plans to recuse from matters pending before the House of Representatives that involve his new firm, his intended law partners or their lobbying clients, we can no longer require that he do so or investigate whether or not he has.

In conclusion and summary, the Code of Ethics does not prohibit the Petitioner from entering into a law partnership with other attorneys who are legislative lobbyists.  Upon entering into such a partnership, the Petitioner’s ability to engage in legislative acts that may financially impact his firm, his law partners or their lobbying clients is not a matter that is currently within the jurisdiction of the Rhode Island Ethics Commission.  See Irons, 973 A.2d 1124.

This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics.  Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings.  Finally, this Commission offers no opinion on the effect that any other statute, rule, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. 

Code Citations:






Commission Regulation 36-14-5002

Related Advisory Opinions:

A.O. 2003-2


Business Association


Private Employment

[1] In his letter requesting the instant advisory opinion, the Petitioner also sought advice on a second question concerning whether the Code of Ethics allowed his service on a legislative commission that would investigate the activities of a board within the Department of Health, given that as a private attorney he represents the Rhode Island Dental Association in litigation against another board within the Department of Health.  Because service on a legislative commission is a core legislative act that is protected by legislative immunity under the Irons decision, the question of whether a legislator’s service on such a commission runs afoul of the Code of Ethics is beyond our post-Irons jurisdiction.  Irons v. Rhode Island Ethics Commission973 A.2d 1124 (R.I. 2009).