Advisory Opinion No. 99-23

Re: Paul A. Brule, Esq.

QUESTION PRESENTED

The petitioner, an attorney whose law firm serves as the Lincoln Assistant Town Solicitor, a municipal appointed position, requests an advisory opinion as to whether his firm may represent private clients before various municipal boards and agencies in the Town of Lincoln.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the law firm serving as the Lincoln Assistant Town Solicitor, a municipal appointed position, from representing private clients before the Lincoln Zoning Board, Planning Board, Sewer Assessment Appeal Board, Tax Assessment Appeal Board and Probate Court, provided that the particular matter being heard is not related to a matter with which the firm is involved as the Assistant Town Solicitor.

The petitioner is a member of the law firm of Walsh, Brule & Associates. He advises that the firm serves as the Lincoln Assistant Town Solicitor on a part-time basis. Its duties include assisting the Lincoln Police Department in criminal prosecutions. He indicates that the firm wishes to represent private clients before the Lincoln Zoning Board of Review, the Planning Board, the Sewer Assessment Appeal Board, the Tax Assessment Appeal Board and the Probate Court.

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. R.I. Gen. Law § 36-14-5(a). He may not use his public position or confidential information received through his position to obtain financial gain, other than that provided by law. R.I. Gen. Law § 36-14-5(d). Further, the Code prohibits him from accepting other employment which will impair his independence of judgment as to his official duties. R.I. Gen. Law § 36-14-5(b). The Code also 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 the public position. R.I. Gen. Law § 36-14-5(e). Finally, Commission Regulation 36-14-5008 prohibits the petitioner from acting as attorney or agent for compensation before agencies over which he exercises fiscal jurisdiction or control.

The Commission concludes that the Code of Ethics does not bar the petitioner’s law firm from representing private clients before the Lincoln Zoning Board, Planning Board, Sewer and Tax Assessment Appeal Boards, and the Probate Court. The firm may represent clients in those forums provided its representation does not relate to matters with which it is involved in its capacity as the Assistant Town Solicitor.

The fact that the firm receives its appointment from the Town Council does not per se prohibit it from appearing before other agencies in the Town, including the Town Council itself, absent some indication of the potential for improper influence.

Based upon the petitioner’s representations, the firm’s official duties do not include acting on behalf of the municipal entities named herein, nor does it otherwise exercise any control or authority over said entities. Accordingly, its representation of private clients before those municipal boards and agencies does not otherwise implicate any provisions of the Code of Ethics.

However, the firm may not represent defendants in criminal matters involving the Town of Lincoln while serving as the Assistant Town Solicitor. Finally, since the petitioner’s firm is neither a member nor an employee of the municipal bodies named herein, the prohibitions set forth in R.I. Gen. Laws § 36-14-5(e) do not apply. [In its present form, Regulation 5008 does not prohibit Town Solicitors from representing private clients before municipal boards and agencies, including their appointing authorities, since they do not exercise fiscal or jurisdictional control over such entities. In the past, the Commission has considered adopting a regulation that would prohibit town solicitors, or other attorneys employed by a municipality, from representing clients before any boards or agencies within the municipality. An up or down vote on such a regulation has never been taken.]

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-5(e)
36-14-5008

Related Advisory Opinions:

98-120
98-80
98-67
98-42
97-16
96-88
96-96
96-53
96-22
96-10
96-1
95-108
90-65

Keywords:

Acting as agent
Private employment