Advisory Opinion No. 2001-31

Re: Steven T. Hartford, Esq.

QUESTION PRESENTED

The petitioner, the Westerly Town Solicitor, a municipal appointed position, requests an advisory opinion as to whether he may continue to represent an individual in a criminal matter brought by the Attorney General in Washington County Superior Court, given that as Solicitor he does not participate in investigative or prosecutorial matters with the Westerly Police Department.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Westerly Town Solicitor, a municipal appointed position, may continue to represent an individual in a criminal matter brought by the Attorney General in Washington County Superior Court given that his duties as Solicitor do not involve participation in investigative or prosecutorial matters with the Westerly Police Department.

Prior to his appointment as the Westerly Town Solicitor in November of 2000, the petitioner was retained to represent a private client in a criminal matter pending in Washington County Superior Court. The Westerly Police Department was the investigating and arresting agency in that matter, which is being prosecuted by the Attorney General’s Office. He advises that as Solicitor he does not participate in investigative or prosecutorial matters within the Westerly Police Department, as the Assistant Solicitor handles such matters. He represents that he has been and will continue to be screened from any information dealing with the case as it pertains to the Police Department. He indicates that he has worked on his client’s criminal defense for six months prior to his appointment as Solicitor. The criminal matter has proceeded to the Grand Jury and scheduling of a trial date is imminent. He advises that it would be an extreme hardship for his client to change counsel at this point.

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).

The Commission concludes that the petitioner may continue to represent a private client in a criminal matter brought by the Attorney General in Washington County Superior Court. Based upon his representations, the petitioner’s official duties as Solicitor do not include participating in investigative or prosecutorial matters involving the Police Department, nor does the Town of Westerly exercise any control or authority over the Attorney General. Further, he advises that he will be continue screened from any information relating to his client’s case as it pertains to the Police Department. Accordingly, the petitioner’s representation of a private client in a criminal matter brought by the Attorney General does not otherwise implicate any provisions of the Code of Ethics. Compare A.O. 99-68 (finding that the Johnston Town Solicitor 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); 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).

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:

99-68

99-23

98-120

98-67

98-42

96-88

96-22

89-9

83-32

81-73

81-20

81-12

Keywords:

Private employment