Advisory Opinion No. 98-142

Re: Joseph R. Paolino

QUESTION PRESENTED

The Petitioner, a Coastal Resources Management Council (CRMC) member, a state appointed official, requests an advisory opinion as to whether he may participate in matters presented by a law firm that employs his attorney and his niece.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the Petitioner, a Coastal Resources Management Council (CRMC) member, from participating in matters involving a law firm while he has an ongoing attorney-client relationship with a member of that firm. Here, the Petitioner's relationship with his attorney and his attorney's law firm falls within the definition of business associate as set forth in R.I. Gen. Laws § 36-14-2(3). As such, the Petitioner's participation in matters concerning his attorney and his attorney's firm is prohibited by R.I. Gen. Laws §§ 36-14-5(a) and 5(f).

Under the Code of Ethics, the Petitioner, as a member of CRMC, may not participate in a matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his public duties. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occur if the official has reason to believe or expect that he, a member of his family, or any business associate will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws §§ 36-14-5(a), 7(a). Commission Regulation 36-14-5005 extends the definition of family members to nieces, whether by blood, marriage or adoption.

Also, an official may not participate in a matter concerning or presented by a business associate unless the associate first advises the official's agency of the nature of the relationship and the official recuses himself from voting or otherwise participating in his agency's consideration of the matter at issue. R.I. Gen. Laws § 36-14-5(f). A business associate is defined as an individual or business entity joined with an official to achieve a common financial objective. See R.I. Gen. Laws §§ 36-14-2(3) and 2(7).

Previously, the Commission has concluded that an ongoing attorney-client relationship creates a business association that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(f). See e.g., A.O. 98-56 and A.O. 98-25. Specifically, the Commission has found that this relationship extends not only to the attorney that represents the interests of the official but also to the law firm to which his attorney is employed or professionally associated since there is a financial nexus between the official and the firm. See A.O. 95-81 (opining that a member of the Cranston Zoning Board may not participate and/or vote on a matter presented by a law firm when an attorney of that firm represents the Petitioner in an unrelated matter); Cf A.O. 96-76 (advising a member of the Health Services Council, who served as "of counsel" to a law firm, that he could not participate in matters involving his law firm or his law firm's clients).

The Petitioner seeks guidance as to whether he, as a member of CRMC, may participate in matters presented by an attorney associated with the law firm Hinckley, Allen & Snyder, a firm that employs between 80 and 90 attorneys, if he has an ongoing attorney-client relationship with a member of that firm and his niece is associated with that firm. After considering the relevant provisions of the Code and past advisory opinions regarding the attorney-client relationship, it is our opinion that the Petitioner may not participate in any matter involving an attorney associated with the law firm of Hinckley, Allen & Snyder, while his attorney is associated with that firm. We have consistently recognized that an official's relationship with an attorney and his firm constitutes a business association that triggers the prohibitions set forth in R.I. Gen. Laws §§ 36-14-5(a) and 5(f). See A.O. 95-81. Accordingly, the Petitioner must recuse himself whenever a matter involving the law firm of Hinckley, Allen & Snyder appears before CRMC.

(Note, this opinion, on the basis of his attorney-client relationship with the law firm of Hinckley, Allen & Snyder, advises the Petitioner to recuse himself from matters involving this firm. This opinion does not address whether the Petitioner's niece's relationship with the firm in and of itself would prohibit him from participating in matters involving that firm. There appears to be an inconsistency in the Commission's treatment and finding of financial nexus in matters involving a law firm in which an official has a business or professional business relationship and those in which he has a familial relationship. As detailed above, the Commission has required the official to recuse himself from any matter involving his attorney's firm, finding that there is a financial nexus between the official and the firm. However, the Commission has not found such a financial nexus to exist where an official's family member is employed by a law firm as an associate. Specifically, in D.R. 95-1, the Commission issued a Declaratory Ruling, contrary to a staff's recommendation, that advised the Legal Counsel for the Office of Governor that the state could retain the law firm that employed the son of the Governor as an associate (who did not share in the profits), Edwards & Angell, since any benefit that would inure to the Governor's son would not represent a "direct monetary gain" as specified in R.I. Gen. Laws § 36-14-7(a). However, in a previous advisory opinion, A.O. 95-114, the Commission concluded that a town council member could not participate in a matter where his attorney mother, a partner, or his mother’s law firm appeared before him.)

Code Citations:

36-14-2(3)

36-14-2(7)

36-14-5(a)

36-14-5(f)

36-14-7(a)

Related Advisory Opinions:

98-56

98-25

96-76

95-114

95-81

92-45

91-50

95-1

Keywords:

Business associate

Family: financial benefit

Recusal