Advisory Opinion No. 99-19

Re: John S. DiBona, Esq.

QUESTION PRESENTED

The petitioner, the Cranston Probate Court Judge, a municipal appointed position, requests an advisory opinion as to 1) whether he may represent private clients before the Cranston City Council, Planning Commission and Zoning Board of Review, and 2) whether his law firm associates may appear before the Cranston Probate Court.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the petitioner, the Cranston Probate Court Judge, a municipal appointed position, from representing private clients before the Cranston City Council, Planning Commission and Zoning Board of Review, provided that the case is not related to a matter in which he is involved as Probate Court Judge or over which the Probate Court has jurisdiction. As to the second inquiry, it is the Commission’s opinion that the petitioner’s law firm associates, with whom he is joined in a real estate partnership, may appear before the Probate Court, provided that a judge other than the petitioner presides. Because the petitioner and his partners in the real estate holding are business associates he should recuse himself from participating in their matters in the Probate Court.

The petitioner advises that he wishes to represent clients in his private law practice before the Cranston City Council, Planning Commission and Zoning Board of Review while serving as Probate Court Judge within the same municipality. He indicates that the Probate Court has no jurisdiction over the matters that he wishes to handle. He represents that he shares a law office and common office expenses with R. Raymond Greco, Michael Ialongo, Jr. and John S. Petrone. They each maintain separate law practices and do not share in legal fees. The petitioner further advises that a partnership he formed with Mr. Greco and Mr. Ialaongo owns the property in which the office is located.

Under the Code of Ethics, the petitioner may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a) and 7(a). He may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself or a business associate. See R.I. Gen. Laws § 36-14-5(d). The Code further prohibits him from representing himself or any other person before the agency of which he is a member or by which he is employed and for one year after leaving his public position. See R.I. Gen. Laws §§ 36-14-5(e)(1), 5(e)(2), and 5(e)(4). Finally, Section 5(f) provides that the petitioner should recuse from participation where a business associate appears before the state or municipal agency of which he is a member.

The Commission concludes that Code of Ethics does not bar the petitioner from representing clients before the Cranston City Council, Planning Commission and Zoning Board of Review. He may represent clients in those forums provided his representation does not relate to matters in which he is involved as a Judge or over which the Probate Court has jurisdiction. The fact that the petitioner receives his appointment from the City Council does not per se prohibit him from appearing before other agencies in the City absent some indication of the potential for improper influence. Additionally, since the petitioner is not a member or employee of the municipal bodies before which he wishes to appear, the prohibitions set forth in R.I. Gen. Laws § 36-14-5(e) do not apply.

As to the second inquiry, the Commission previously has found that a public official must recuse from participation when members of his or her law firm appear before him/her. The Commission has recognized a distinction where attorneys, while sharing office space, did not share legal fees. See A.O. 93-45 (concluding that a Cranston City Council member may participate where an independent attorney affiliated with him appears on behalf of his/her own private clients before the Probate Court); A.O. 93-18 (finding no inherent conflicts for a Cranston City Council President given that two independent attorneys affiliated with him would appear before the Probate Court). Absent some additional relationship among the petitioner and his associates, the sharing of office space and common office expenses does not rise to the level of a “business association” under the Code and in and of itself would not prohibit the petitioner from participating in matters involving those attorneys. Here, however, two of the attorneys with whom he shares space are also real estate partners with the petitioner. The petitioner and his partners are business associates as they are “joined together to achieve a common financial objective”. R.I. Gen. Laws § 36-14-2(3). In the event that the petitioner’s law associates with whom he is joined in a real estate partnership appear before the Probate Court, the petitioner should recuse from participation pursuant to Section 5(f). Therefore, in the event that Mr. Greco and/or or Mr. Ialongo appears before the Probate Court, 1) they should advise the City of their business relationship with the petitioner and 2) the petitioner should recuse from participation. Notice of recusal should be filed in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-2(3)
36-14-5(a)
36-14-5(d)
36-14-5(e)
36-14-5(f)
36-14-6
36-14-7(a)

Related Advisory Opinions:

98-80
98-16
96-96
96-76
96-53
96-3
96-1
93-21
92-64
90-65
86-69

Keywords:

Acting as agent
Business