Advisory Opinion No. 99-67

Re: Michael T. Napolitano, Esq.

QUESTION PRESENTED

The petitioner, the Cranston Municipal Court Judge, a municipal appointed position, requests an advisory opinion as to whether he may represent clients 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 Municipal Court Judge, a municipal appointed position, from representing private clients before the Cranston Probate Court provided that the case is not related to a matter in which he is involved as Municipal Court Judge or over which the Municipal Court has jurisdiction.

The petitioner advises that he wishes to represent clients in his private law practice before the Cranston Probate Court while serving as Municipal Court Judge within the same municipality. 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). The Code further provides that the petitioner shall not engage in any employment that will impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). The petitioner also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). Finally, the Code prohibits the petitioner from representing himself or any other person before the agency of which he is a member or by which he is employed and extends the prohibition for one year after he leaves the agency. See R.I. Gen. Laws §§ 36-14-5(e)(1), 5(e)(2), and 5(e)(4).

The Commission concludes that Code of Ethics does not bar the petitioner from representing clients before the Probate Court. The prohibitions found in subsections 5(a), (b) and (d) of the Code are not applicable simply because of the dual positions to be held by the petitioner. Rather, the existence of a prohibited conflict of interest requires a matter by matter analysis. Therefore, the petitioner may represent clients in the Probate Court provided his representation does not relate to matters in which he is involved as a Judge or over which the Municipal Court has concurrent or appellate jurisdiction. The fact that the petitioner receives his appointment from the Town Council does not per se prohibit him from appearing before other agencies in the Town including the Probate Court absent some indication of the potential for improper influence. Additionally, since the Petitioner is not a member or employee of the Probate Court, the prohibitions set forth in R.I. Gen. Laws § 36-14-5(e) do not apply.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(e)
36-14-5(d)
36-14-6
36-14-7(a)

Related Advisory Opinions:

99-19
98-42
98-16
96-53
96-1
90-65
86-69

Keywords:

Acting As Agent
Private Employment