Advisory Opinion No. 99-53

Re: Michelle Ruberto Fonseca

QUESTION PRESENTED

The petitioner, a former Narragansett Bay Commission (NBC) attorney, a state employee position, requests an advisory opinion as to whether she may continue to represent the NBC as an outside counsel either through her new law firm or in her individual capacity.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a former Narragansett Bay Commission (NBC) attorney, a state employee position, may serve as outside counsel for her former employer.

The Code of Ethics provides that the petitioner may not represent herself or any other person before any state or municipal agency of which she is a member or by which she is employed. R.I. Gen. Laws § 36-14-5(e)(1), (2). Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner has officially severed her position with the agency.

The petitioner in this matter represents that she was employed by the NBC until February 26, 1999. She is entering private practice with the law firm of Holland & Knight. The NBC has requested that the petitioner continue to represent it as outside counsel. Although the petitioner duties in private practice undoubtedly will put her in contact with her former employer and former colleagues, those duties will not require her to “represent” herself or a client in matters before the NBC. In short, Section 5(e)(4) prohibits representation before an agency by a former official or employee, but it does not prohibit representation of the agency by the former official or employee. That is a revolving door issue and, in that regard, we conclude that the revolving door provision of Section 5(o) does not apply since the petitioner is neither on the staff of a state elected official nor is her potential representation of the NBC considered "employment" for purposes of the Code of Ethics. See Gemma v. R.I. Ethics Commission, No. 94-3404 (R.I. Sup. Ct. filed September 17,1994) (concluding that an attorney contractually retained by the State was not an employee, but an independent contractor and, accordingly, was not subject to the revolving door provisions set forth in R.I. Gen. Laws §36-14-5(o)). Therefore, the Code of Ethics does not prohibit the petitioner from representing the NBC, her former employer, either in her individual capacity or as a member of her new law firm.

Code Citations:

36-14-5(e)

Related Advisory Opinions:

98-49
97-141

Related Case Law:

Gemma v. R.I. Ethics Commission, No. 94-3404 (R.I. Sup. Ct. filed September 17,

1994)

Keywords:

Code Jurisdiction
Post-Employment