Advisory Opinion No. 96-22

Re: Mark A. McSally, Esq.

A. QUESTION PRESENTED

The Narragansett Town Solicitor requests an advisory opinion as to whether he and other members of his law firm, including two Assistant Town Solicitors who prosecute misdemeanor cases brought by the Narragansett Police Department, may represent defendants in felony and breathalyzer refusal cases in the same jurisdiction.

B. SUMMARY

The Narragansett Town Solicitor and other members of his law firm are prohibited from representing defendants in felony and breathalyzer refusal cases in Narragansett given that he and other members of his law firm prosecute misdemeanor cases as Town Solicitors. This opinion is based on the appearance of impropriety, the use of office to achieve financial gain, and the likelihood that the private employment will either impair the petitioner's independence of judgment or induce disclosure of confidential information. R.I. Gen. Laws § 36-14-5(a),(b)&(d).

C. DISCUSSION

1. Facts

The petitioner, Mark A. McSally, is an attorney with Kelly, Kelleher Reilly & Simpson. Petitioner is also the Town Solicitor of Narragansett. Two members of the firm are Assistant Town Solicitors. In their role as Town Solicitors, petitioner and his associates prosecute misdemeanor cases brought by the Narragansett Police Department.

The Attorney General's Office prosecute all felony and breathalyzer cases in Narragansett.

The petitioner requests an opinion as to whether he or the Assistant Solicitors in his law firm can represent a defendant on a felony case arising out of an incident in Narragansett. Petitioner also requests guidance as to whether he or the Assistant Solicitors may represent defendants in breathalyzer cases in Narragansett. And, in the event the petitioner is precluded from representing defendants in the above mentioned cases, petitioner requests the guidance as to whether other attorneys in the firm who are not Solicitors can handle those matters.

2. Analysis

At issue in this advisory opinion request is whether Mark A. McSally, the other Assistant Town Solicitors or any other member of Kelly, Kelleher, Reilly & Simpson may represent defendants in Narragansett felony and breathalyzer matters where the petitioner and other members of the firm represent Narragansett in misdemeanor matters as Town Solicitors.

The Code of Ethics provides a policy "...that public officials...adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety, and not use their position for private gain or advantage" R.I. Gen. Laws § 36-14-1 Additionally, the Code of Ethics prohibits a public official 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. 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 §§ 36-14-5(a), 36-14-7(a). A public official is also prohibited from using his position or confidential information received through his position to obtain financial gain for himself or for any business by which he is employed. See R.I. Gen. Laws § 36-14-5(d). And finally, pursuant to R.I. Gen. Laws § 36-14-5(b), a public official 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 acquired by him in the course of his official duties.

In the current matter, the petitioner and two members of his law firm serve as Narragansett Town Solicitor and Assistant Town Solicitors. This includes the preparation and prosecution of misdemeanor matters in District Court. These cases rely on the testimony of Narragansett Police Officers. At the same time, the petitioner seeks advice as to whether he or his business associates can represent defendants in other Narragansett criminal matters prosecuted by the Attorney General's Office which may also rely on the testimony of Narragansett Police Officers.

It is probable that given the size of Narragansett, petitioner or his business associates may work with a police officer as Town Solicitor and then as a defense attorney impeach the same officer's credibility or discredit police department evidence in a felony or breathaylzer case. This would likely create an appearance of impropriety for the petitioner by police officers and the citizens of Narragansett. Additionally, through working with that police officer, an attorney may learn confidential information that may impact his strategy in another case or at least impair his independence of judgment. Similarly, based on the foregoing, this private employment may impede the proper discharge of his duties in the public interest.

The Commission has found conflict of interest violations probable when considering similar circumstances with regard to Town Solicitors defending criminal matters. The Commission concluded that a Town Solicitor could not represent private clients in criminal matters while serving as the Town Solicitor. See A.O. 81-73. Similarly, the Commission made an exception allowing the Town Solicitor to represent one criminal defendant that he had represented before being appointed as Town Solicitor where the matter was pending trial and it would be a severe hardship for that defendant to engage alternate counsel at that time. See A.O. 89-9 The Commission has also found no violation where a Town Solicitor would provide criminal defense services where his duties as Town Solicitor were entirely civil in nature. See A.O. 81-12, A.O. 83-32, and A.O. 81-20.

Underlying other advisory opinions has been the potential for public officials to enjoy an unfair advantage in terms of the ability to solicit private employment opportunities by virtue of their positions. The Commission has found such public official's proposed private employment raise the issue of using public office to obtain financial gain for him or a business associate. See A.O.95-93 and A.O. 93-69. For example, the Town Solicitor is privy to information concerning police and defendants and would be in a position to solicit such defendants or their colleagues for his or his associates' services as a private attorney.

These issues of impropriety, independence of judgment, and use of office do not exist where a former Town Solicitor represents defendants in that town's criminal or other court proceedings. See A.O. 91-76, A.O. 91-03, A.O. 89-44, A.O. 87-07.

The same concerns and reasoning apply to the Assistant Town Solicitors defending criminal matters.

As to other members of the petitioner's law firm who are not Narragansett Town Solicitors, the Commission has concluded that where the petitioner is precluded from representation, his business associates are also prohibited from such representation as they stand in the place of the petitioner. Further, this representation would result in a monetary gain for the business associates that ultimately accrues to the petitioner. Therefore, the prohibitions contained in R.I. Gen. Laws § 36-14-5(a),(b) & (d) necessarily extend to the petitioner and to the members of his law firm. See A.O. 95-108, A.O. 90-83.

After considering the petitioner's request and applicable provisions of the Code of Ethics, the Commission concludes that the petitioner, Mark McSally, may not represent defendants in felony and breathalyzer matters in Narragansett while serving as Narragansett Town Solicitor. Similarly, other members of the petitioner's law firm including the Assistant Town Solicitors cannot represent defendants in these matters.

Code Citations:

36-14-1

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Related Advisory Opinions:

95-108

95-93

93-69

91-76

91-3

90-83

89-44

89-9

87-7

83-32

81-73

81-20

81-12

Keywords:

private employment