Advisory Opinion No. 99-68

Re: John M. Verdecchia, Esq.

QUESTION PRESENTED

The petitioner, the Johnston Town Solicitor, a municipal appointed position, requests an advisory opinion as to whether he may continue to represent an individual in the Providence Superior Court in a criminal matter brought by the Johnston Police Department given that his duties as Town Solicitor include providing legal counsel to the Johnston Police Department.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Johnston Town Solicitor, a municipal appointed position, may not continue to represent an individual in a criminal matter brought by the Johnston Police Department given that his duties as Town Solicitor include providing legal counsel to the Johnston Police Department and acting as the prosecutor for misdemeanor violations brought by that Department.

The Code of Ethics provides that 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 would 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).

This matter is similar to a previous advisory opinion issued to another Town Solicitor. In Advisory Opinion 96-21, the Narragansett Town Solicitor was advised that neither he nor other members of his law firm should represent defendants in breathalyzer refusal cases involving the Narragansett Police Department based on Sections 5(a), (b), and 5(d). In that opinion, the Commission concluded that the petitioner's relationship with Town of Narragansett police officers in his role as Town Solicitor included advising them and/or representing their interests in a variety of ways. Given that relationship, for the same counsel to be opposite those officers in adversarial proceedings would create an appearance of impropriety, and repeatedly was likely to create circumstances that would lead to an impairment of independence of judgment on behalf of the Town Solicitor, and/or the improper use of confidential information or office. This matter is analogous to the circumstances addressed in that previous opinion. Therefore, the petitioner may not represent a criminal defendant charged by the Johnston Police Department while also serving as Town Solicitor for the Town of Johnston. See also A.O. 99-23 (concluding, inter alia, that Assistant Solicitors with duties of representing the police department should not represent criminal defendants in matters involving that municipality); A.O. 98-42 (advising alternate Municipal Court Judge that he should not represent criminal defendants in that town because part of his duties as Municipal Court Judge included setting bail for various alleged criminal offenders).

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(c)
36-14-5(d)
36-14-7(a)

Related Advisory Opinions:

99-23
98-67
98-42
96-22
89-9
81-73

Keywords:

Private Employment