Advisory Opinion No. 2021-49 Rhode Island Ethics Commission Advisory Opinion No. 2021-49 Approved: August 17, 2021 Re: The Honorable Steven A. Moretti QUESTION PRESENTED: The Petitioner, an Associate Judge of the Cranston Municipal Court, a municipal appointed position, who in his private capacity is a practicing attorney, requests an advisory opinion regarding whether the Code of Ethics prohibits him from representing clients before the Cranston Probate Court, the Cranston Zoning Board of Review, and the Cranston City Council, and from representing clients charged with criminal offenses by the Cranston Police Department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an Associate Judge of the Cranston Municipal Court, a municipal appointed position, who in his private capacity is a practicing attorney, is not prohibited by the Code of Ethics from representing clients before the Cranston Probate Court, the Cranston Zoning Board of Review, and the Cranston City Council, and from representing clients charged with criminal offenses by the Cranston Police Department, provided that the representation is not related to a matter in which he is involved as an Associate Judge of the Cranston Municipal Court or over which the Cranston Municipal Court has jurisdiction. The Petitioner was recently appointed by the Cranston City Council (“City Council”) to serve as an Associate Judge of the Cranston Municipal Court (“Municipal Court”). According to the City of Cranston’s website, in addition to the Chief Judge and the Senior Associate Judge, there are five Associate Judges who serve on the Municipal Court, which is authorized toadjudicate certain state moving traffic violations, all local Cranston ordinance offenses (such as parking and zoning), and minimum housing code violations.[1] The Petitioner states that no bail hearings are conducted in the Municipal Court. The Petitioner further states that police officers in the City of Cranston (“City” or “Cranston”) have the discretion to summon individuals who are issued traffic tickets to either the Municipal Court or to the Rhode Island Traffic Tribunal (“Traffic Tribunal”), but not both, explaining that the Municipal Court and the Traffic Tribunal have concurrent jurisdiction over traffic offenses. The Petitioner represents that, in his private capacity, he is an attorney with a busy general practice, and that many of his clients are Cranston residents and/or have matters which would involve an appearance before or contact with various Cranston agencies and City personnel. The Petitioner anticipates that he would be asked by clients to appear before the Cranston Probate Court, the Cranston Zoning Board of Review and, perhaps less frequently, before the City Council. The Petitioner explains that, due in large part to his present focus on corporate real estate work, when asked to represent clients charged with criminal offenses by the Cranston Police Department, he refers such matters to attorneys outside of his law firm (“referral counsel”). The Petitioner states that matters involving individuals charged with criminal offenses by the Cranston Police Department are primarily addressed in the District and Superior Courts, the Traffic Tribunal, and the Municipal Court. The Petitioner further states that the only circumstances under which the Petitioner would seek to represent an individual in such a matter (in all but the Municipal Court) would be if the attorney to whom he had referred the matter was unable to attend a hearing. Cognizant of the fact that he would be prohibited from representing clients before the Municipal Court, the Petitioner represents that, in the event that referral counsel is unavailable to attend a hearing in Municipal Court on behalf of a client that had been referred by the Petitioner, the Petitioner would not represent said client in referral counsel’s absence. He adds that, in the event that he is presiding in Municipal Court on a matter in which a litigant is represented by referral counsel, the Petitioner would recuse from participation in said matter. It is in the context of each of these representations that the Petitioner seeks guidance from the Ethics Commission regarding whether he may represent clients before the Cranston Probate Court, the Cranston Zoning Board of Review, and the City Council, and represent clients charged with criminal offenses by the Cranston Police Department in the District and Superior Courts and before the Traffic Tribunal. No person subject to the Code of Ethics shall engage in any business, employment, transaction or professional activity which is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a) (“Section 5(a)”). A substantial conflict of interest exists if a public official has reason to believe or expect that he, any person within his family, his business associate, or any business by which he is employed or which he represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, the Code of Ethics prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, any person within his family, his business associate, or any business by which he is employed or which he represents. Section 36-14-5(d) (“section 5(d)”). Further, the Code of Ethics provides that a public official shall not accept other employment that would impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. Section 36-14-5(b) (“section 5(b)”). The Code of Ethics also prohibits a public official from representing himself or any other person before a municipal agency of which he is a member, by which he is employed, or for which he is the appointing authority. Section 36-14-5(e)(1)& (2) (“section 5(e)”). A person represents himself or another person before an agency when he participates in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of that agency in his favor or in favor of another person. Section 36-14-2(12) & (13); Commission Regulation 520-RICR-00-00-1.1.4(A)(1) & (2) Representing Oneself or Others, Defined (36-14-5016). Under the Code of Ethics, a public official must also recuse himself from participation in a matter when his business associate or employer, or a person authorized by his business associate or employer, appears or presents evidence or arguments before his municipal agency. Commission Regulation 520-RICR-00-00-1.2.1(A)(2) & (3) Additional Circumstances Warranting Recusal (36-14-5002) (“Regulation 1.2.1”); Section 36-14-5(f). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). Notices of recusal shall be filed consistent with the provisions of section 36-14-6. The Ethics Commission has consistently opined that the Code of Ethics does not prohibit municipal judges from representing clients in matters before other municipal bodies where said municipal judges do not have jurisdiction over such matters in their judicial roles. For example, in Advisory Opinion 2003-71, the Ethic Commission opined that a Tiverton Municipal Court Judge could represent private clients before the Tiverton Town Council, the Tiverton Zoning Board of Review, and other municipal bodies, including individuals charged with criminal offenses by the Tiverton Police Department, provided that the representation was not related to a matter in which the petitioner was involved in his capacity of Municipal Court Judge or over which the Tiverton Municipal Court had jurisdiction. See also A.O. 2007-12 (opining that a judicial candidate for the Providence Housing Court could continue his private practice of law before various agencies within the City of Providence if appointed to the Providence Housing Court, provided that he did not represent clients before the Providence Housing Court); A.O. 2005-29 (opining that a Glocester Probate Court Judge could represent private clients before the Glocester Zoning Board, provided that the cases were not related to matters in which the petitioner was involved as Probate Court Judge or over which the Probate Court had jurisdiction); A.O. 2003-34 (opining that a Newport Municipal Court Judge could represent clients before the Newport Zoning Board of Review, provided that the cases were not related to matters in which the petitioner was involved as Newport Municipal Court Judge or over which the Newport Municipal Court had jurisdiction). The Ethics Commission further determined in Advisory Opinion 2003-71 that the fact that the petitioner had received his appointment from the Tiverton Town Council did not per se prohibit him from appearing before other Tiverton agencies, absent some indication of the potential for improper influence. The Ethics Commission further opined that the prohibitions contained in sections 5(a), 5(b), and 5(d) of the Code of Ethics were not applicable simply because of the petitioner’s position as a municipal court judge and that the existence of prohibited conflicts of interest required a matter-by-matter analysis. Finally, because the petitioner was not a member or employee of the various municipal bodies before which he wished to appear, the prohibitions set forth in section 5(e) did not apply. Accordingly, based on the facts as represented, the relevant provisions of the Code of Ethics, and prior advisory opinions issued, it is the opinion of the Ethics Commission that the Petitioner may represent clients before the Cranston Probate Court, the Cranston Zoning Board of Review, and the Cranston City Council, and may represent clients charged with criminal offenses by the Cranston Police Department in the District and Superior Courts and before the Traffic Tribunal, provided that the representation is not related to a matter in which the Petitioner is involved as an Associate Judge of the Cranston Municipal Court or over which the Cranston Municipal Court has jurisdiction. Additionally, the fact the Petitioner received his appointment from the City Council does not per se prohibit him from appearing before the City Council or other Cranston agencies, absent some indication of the potential for improper influence. Also, the prohibitions contained in sections 5(a), 5(b), and 5(d) of the Code of Ethics are not applicable simply because of the Petitioner’s position as an Associate Judge of the Municipal Court. Rather, the existence of a prohibited conflict of interest requires a matter-by-matter analysis. Finally, since the Petitioner is not a member or employee of any of the municipal bodies before which he wishes to appear, the prohibitions set forth in section 5(e) do not apply. The Ethics Commission notes that a “business associate” relationship potentially could exist between the Petitioner and referral counsel, dependent upon the particulars of their financial relationship. The existence of such a relationship would additionally trigger the prohibitions contained in Regulation 1.2.1 and section 5(f) of the Code of Ethics, requiring the Petitioner to recuse from presiding over matters where his business associate represents himself/herself or others before the Municipal Court. The Ethics Commission recognizes and supports the Petitioner’s preparedness to so recuse in such a situation. This advisory opinion cannot anticipate every possible situation in which a conflict of interest might arise and, thus, provides only general guidance as to the application of the Code of Ethics based upon the facts represented herein. The Petitioner is encouraged to seek additional advice from the Ethics Commission in the future as more specific questions regarding potential conflicts of interest arise. 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 not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations: § 36-14-2(3) § 36-14-2(12) § 36-13-2(13)| § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-5(e) § 36-14-5(f) § 36-14-6 § 36-14-7(a) 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 520-RICR-00-00-1.2.1 Additional Circumstances Warranting Recusal (36-14-5002) Related Advisory Opinions: A.O. 2007-12 A.O. 2005-29 A.O. 2003-71 A.O. 2003-34 Keywords: Business Associate Private Employment [1] http://www.cranstonri.gov/municipal-court-directory/ (last accessed August 3, 2021).