Advisory Opinion No. 2009-14

Rhode Island Ethics Commission

Advisory Opinion No. 2009-14

Re: Gregory S. Dias, Esq.

QUESTION PRESENTED

The Petitioner, a former Assistant Solicitor for the City of East Providence, a municipal appointed position, and an attorney in private practice, requests an advisory opinion as to whether he may represent clients before the Rhode Island District Court and the East Providence Municipal Court within one year from the date of his official severance with the City of East Providence.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former Assistant Solicitor for the City of East Providence, a municipal appointed position, and an attorney in private practice, may represent clients before the Rhode Island District Court and the East Providence Municipal Court, within one year from the date of his official severance with the City of East Providence, since such representation pertains to matters of public record in a court of law and, therefore, is not subject to the one year prohibitory period.  See R.I. Gen. Laws § 36-14-5(e)(4).

The Petitioner states that he was the part-time Assistant Solicitor for the City of East Providence (“City”) for the past 24 years.  He further states that for the past 22 years, he served as the Prosecutor in the Rhode Island District Court (“District Court”) prosecuting misdemeanor complaints filed by the City and the Police Department, and served as Prosecutor involving housing matters before the East Providence Municipal Court (“Municipal Court”).  The Petitioner represents that on December 1, 2008, he was not reappointed as Assistant Solicitor.  The Petitioner requests this advisory opinion as to whether he may now represent clients, charged by the East Providence Police Department, before the District and Municipal Courts, both courts of public record, prior to the expiration of the one year prohibitory period as provided in R.I. Gen. Laws § 36-14-5(e)(4).

Under the Code of Ethics, the Petitioner may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed.  See R.I. Gen. Laws § 36-14-5(e)(1) and (2).  Section 5(e)(4) extends these prohibitions for a period of one year after the Petitioner has officially severed his position with the agency, unless it pertains to a matter of public record in a court of law.  See R.I. Gen. Laws § 36-14-5(e)(4).

In prior advisory opinions, the Commission has recognized that the one year prohibitory period, as provided in R.I. Gen. Laws § 36-14-5(e)(4), does not extend to individuals who wish to represent clients, within one year from the date of official severance from their public employment, when such representation pertains to matters of public record in a court of law.  See A.O. 98-13 (opining that the former Director of Public Safety and an Administrative Aide to the Mayor of the City of Pawtucket was prohibited from representing clients before the Pawtucket Police and Fire Departments for a period of one year following official severance from his employment, except that such prohibition shall not pertain to a matter of public record in a court of law); A.O. 95-91 (finding that the former City of Providence Probate Court Judge, who was newly appointed as Alternate Acting Judge for the City of Providence Probate Court, could not represent private clients before the Probate Court during his tenure as Alternate Acting Probate Court Judge; but could represent clients before the Probate Court upon leaving his official position, since such appearances pertain to matters of public record in a court of law and are not subject to the one year prohibition).

More recently, the Commission has opined that assistant solicitors were prohibited from representing themselves or others before the courts in which they practiced as part of their public duties, but could appear before other courts or boards within the same municipality, provided that they did not exercise any control or authority over those other municipal agencies.  See A.O. 2008-66 (opining that the Assistant City Solicitor for the City of Newport was prohibited, along with other members of his firm, from representing private clients before the Newport Municipal Court, but could represent private clients before other Newport boards and courts before which he does not represent the City as Assistant City Solicitor or over which exercised no authority or control); A.O. 2003-49 (Town of Lincoln Assistant Solicitor whose duties expanded from solely assisting police department with criminal prosecutions, to representing the Town Council, Zoning Board and Planning Board in litigation, is prohibited by section 5(e) from representing himself before those entities).

The distinguishing factor between the recently cited advisory opinions and the instant matter is that the Petitioner is no longer employed by the City of East Providence as Assistant Solicitor.  As such, the prohibitions contained in section 5(e)(1), (2) and (4) are not applicable given that the Petitioner will be representing clients before the District and Municipal Courts, both courts of public record.

Accordingly, the Commission opines that the Petitioner may represent clients before the Rhode Island District Court and the East Providence Municipal Court within one year from the date of his official severance with the City of East Providence, since such representation pertains to matters of public record in a court of law and, therefore, is not subject to the one year prohibitory period.

Code Citations:

36-14-5(e)

Related Advisory Opinions:

2008-66

2003-49

98-13

95-91