Advisory Opinion No. 2005-67 Re: Howard R. Croll, Esq. QUESTION PRESENTED: The petitioner, an appointee to the Woonsocket Personnel Board, a municipal appointed position, requests an advisory opinion as to whether he may serve on the Board given that in his private practice of law he represents Defendants who have been charged by the Woonsocket Police Department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, an appointee to the Woonsocket Personnel Board, a municipal appointed position, may serve on the Board notwithstanding the fact that he represents Defendants who have been charged by the Woonsocket Police Department. The petitioner informs that he was appointed to the City of Woonsocket Personnel Board; however, he states that he has not yet served. The petitioner represents that the Woonsocket Personnel Board sometimes hears and decides personnel matters relative to Woonsocket Police officers. Additionally, the petitioner represents that he is a practicing attorney in Woonsocket. He informs that he has a general practice that includes criminal cases. He informs that approximately 20% of his active cases involve Defendants charged by the Woonsocket Police Department. In many of these cases, the petitioner informs that the actions, observations, and character of an individual Woonsocket Police officer is an issue. For that reason, the petitioner represents that he will recuse himself from matters before the Board regarding police officers involved in active cases in which he is presently representing a client. Pursuant to the Code of Ethics, the petitioner may not participate 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. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if it is reasonably foreseeable that he or any family member or business associate, or any business by which he is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. A “business associate” is defined as any individual or entity joined with a public official “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). In past advisory opinions, the Commission has considered an attorney-client relationship to be a business association under the Code of Ethics. See A.O. 95-61 (opining that the relationship between an individual and an attorney who actively represents that individual is one of “business associate”). Here, the petitioner is a business associate of his clients, which include Defendants who have been charged by the Woonsocket Police Department. The decisions and actions of the Woonsocket Personnel Board regarding officers who are involved in the petitioner’s cases could have a direct financial impact on the petitioner’s case and thus directly financially impact his clients. See A.O. 95-17 (opining that a Town Councilor who was also an attorney should not participate as a Town Councilor in a liquor license application submitted by his client’s spouse given that he was representing his client in a marital dispute with the license applicant). Consequently, the Commission advises the petitioner to recuse himself from matters before the Woonsocket Personnel Board regarding officers who are involved in his active cases given that it is reasonably foreseeable that Personnel Board decisions regarding such officers will impact the criminal cases against his clients. Based his representation that he has approximately 14,000 closed cases to date, the petitioner indicates that it will be difficult for him to remember if an officer was involved in a case that he handled that is now closed or has reached adjudication. In past advisory opinions, the Commission has determined that when an attorney/client relationship has ceased, there is generally no continuing business association. See A.O. 88-48 (opining that an official could participate in a matter in which his former attorney appears before him given that the attorney withdrew from representing the official). Accordingly, with regard to the petitioner’s cases that are closed or have reached adjudication, the petitioner should first consider whether an attorney/client relationship still exists, and if so then determine whether it is reasonably foreseeable that his client will be financially impacted by a matter before the Board. If an attorney/client relationship exists and it is reasonably foreseeable that his client will be financially impacted by a matter before the Board, the petitioner must recuse himself from that matter. In summary, the Commission opines that the Code of Ethics does not prohibit the petitioner from serving on the Woonsocket Personnel Board; however, the Code of Ethics requires him to recuse from cases before the Board regarding officers who are involved in one of his cases if it is reasonably foreseeable that he or any of his clients will be directly, financially impacted as a result of his official activity. The petitioner must file notice of his recusal with the Woonsocket Personnel Board and the Rhode Island Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. The petitioner is advised that this opinion does not, and cannot, address whether the Rules of Professional Conduct, the Woonsocket City Charter, ordinances of Woonsocket, or any other state or local statutes, rulings, or policies prohibit such conduct. Code Citations : R.I. Gen. Laws § 36-14-2(3) R.I. Gen. Laws § 36-14-5(a) 36-14-6 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions : 95-61 95-17 88-48 Keywords : Financial interest Recusal