Advisory Opinion No. 96-3

Re: Ernest J. Pratt, Esq.

A. QUESTION PRESENTED

The Municipal Court Judge for the City of Central Falls, a partner in a private law firm, requests an advisory opinion as to whether he will violate the Code of Ethics if his law firm associates with an attorney who also serves as the City Solicitor.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that a Municipal Court Judge for the City of Central Falls will not violate the Code of Ethics by virtue of the fact that his private law firm associates with the Central Falls City Solicitor. The petitioner is further advised that R.I. Gen. Laws § 36-14-5(f) requires that no business associate of the Petitioner may represent himself or herself or any other person before the Municipal Court unless (a) the business associate advises the Municipal Court of the nature of his or her business relationship and (b) the Petitioner recuses himself from the matter at issue. The Municipal Court Judge is advised to recuse from any matter in which the office of the City Solicitor entered an appearance or rendered advice to City officials and/or entities.

C. DISCUSSION

1. Facts

The Petitioner has served as Central Fall's Municipal Court Judge since 1988. The City recently hired a Solicitor and Assistant Solicitor. The Solicitor's office appears before the Municipal Court approximately eight to ten times a year on cases involving minimum housing requirements. As to criminal matters, the Petitioner advises that Police Officers handle all prosecutions.(1)

The Petitioner's firm is considering associating with an attorney who recently had been hired as the City Solicitor. The Petitioner advises that, if his firm hires the Solicitor, the Assistant Solicitor will make all appearances before the Municipal Court on behalf of the City. The Petitioner further advises that "as an extra added safeguard," the City would hire outside counsel for cases pending in the Municipal Court.

2. Analysis

At issue in this advisory request is whether the Code of Ethics prohibits the Petitioner, a Municipal Court Judge, from associating with an attorney who serves as the City Solicitor for the same municipality. Under the Code of Ethics, the Petitioner, as a Municipal Court Judge, 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. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a).(2) Pursuant to R.I. Gen. Laws § 36-14-5(b), the Petitioner may not accept other employment which will either impair his independence of judgment as to his official duties or require him or induce him to disclose confidential information. Further, a business associate of the Petitioner may not represent himself or herself or any other person before the Municipal Court unless a) the business associate advises the Municipal Court of the nature of his or her business relationship; and b) the Petitioner recuses himself from the matter at issue. See R.I. Gen. Laws § 36-14-5(f).

After considering the relevant provisions of the Code and the Petitioner's representations concerning the relationship between the Solicitor's office and the Municipal Court, we conclude that the Petitioner will not violate the Code if his firm associates with the Solicitor. This association, standing alone, does not implicate any of the prohibitions set forth in R.I. Gen. Laws § 36-14-5. See A.O. 78-4 (opining that no conflict of interest exists for the parties involved by virtue of the sole fact that business associates served as East Providence's Probate Judge and City Solicitor as long as neither official practiced before a Board, Commission, Department or Court of the City on which the other sat or to which the other rendered advice).(3)

We caution the Petitioner, however, that, if his firm hires the Solicitor, he should recuse himself from any case in which the office of the City Solicitor has either entered an appearance on behalf of the City or provided assistance to any City official or City entity as to such matter. See A.O. 79-2 and A.O. 78-4. As to such matters, the Petitioner should also notify the City Council and this Commission as specified in R.I. Gen. Laws § 36-14-6. Also, we caution the Petitioner that if he is forced to recuse on a frequent and regular basis, he may be found to have violated the provisions of Commission Regulation R.I. Gen. Laws § 36-14-5003, which prohibit an official from recusing with such frequency as to give the appearance of impropriety.

Footnotes

(1) During a phone conversation, the Petitioner indicated that the Solicitor's Office ordinarily does not advise members of the Police Department as to prosecutions pending in the Municipal Court.

(2) Substantial conflict is defined as a "direct monetary gain" or a "direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a).

(3) Although the Conflict of Interest Commission issued this advisory opinion interpreting the Conflict of Interest Law (the precursor to the Code of Ethics), this opinion is relevant to the issue raised in this request since the Commission had considered provisions similar to that now in effect in the Code of Ethics.

Keywords

Business Associate