Advisory Opinion No. 2013-21 Advisory Opinion No. 2013-21 Re: Bruce A. Wolpert, Esq. QUESTION PRESENTED The Petitioner, a member of the Rhode Island State Labor Relations Board, a state appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in Labor Relations Board matters in which his former business associate appears. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Rhode Island State Labor Relations Board, a state appointed position, is not prohibited by the Code of Ethics from participating in Labor Relations Board matters in which his former business associate appears. The Petitioner was appointed by Governor Lincoln D. Chafee to serve on the Rhode Island State Labor Relations Board (“Board”). His appointment became effective on June 11, 2013, after receiving advice and consent from the Rhode Island Senate. The Board has seven (7) members: three (3) representatives of labor; three (3) representatives of management; and one (1) representative of the public. R.I. Gen. Laws § 28-7-4. The Petitioner states that he was appointed to serve as the public member. He informs that the Board’s jurisdiction is limited to labor matters involving municipal, state and quasi-state entities. In his private capacity, the Petitioner represents that he is an attorney, having been licensed to practice law in Rhode Island for over thirty-four (34) years. He states that in December 2012 he began an attorney-client relationship with another attorney (“Client”) who is also licensed to practice in Rhode Island. He advises that he did not know this Client prior to that time. He states that while awaiting confirmation from the Senate, he discovered that this Client and other members/employees of his Client’s law firm regularly represent clients before the Labor Relations Board. Upon learning of his Client’s work before the Board, the Petitioner represents that he discussed the matter with his Client and ceased representation of his Client effective June 6, 2013. He further states that it is not reasonably foreseeable that he will resume such representation. He also represents that his representation of this Client was not related to the jurisdiction of the Board and he was paid in full for all services rendered. Given the above representations, the Petitioner seeks advice as to whether he may participate in Board matters in which the Petitioner’s former Client or members/employees of this Client’s law firm appear. Under the Code of Ethics, a public official must recuse himself from participation when his business associate appears or presents evidence or arguments before his state or municipal agency. Commission Regulation 36-14-5002 (“Regulation 5002”); R.I. Gen. Laws § 36-14-5(f). Additionally, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Finally, a public official is also prohibited from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). The Commission has consistently found that the attorney-client relationship constitutes a “business associate” relationship as that term is defined in the Code of Ethics. See e.g. A.O. 2010-47; A.O. 2010-33; A.O. 2009-23; A.O. 2008-67; A.O. 2007-54; A.O. 2007-5; A.O. 2005-56; A.O. 2005-55; A.O. 2004-26; A.O. 2003-17; A.O. 98-142; A.O. 98-25; A.O. 96-62. However, the Commission has also found that no conflict of interest exists under the Code of Ethics when a prior business relationship between a public official and a private party has ended and there is no ongoing or anticipated future relationship between the parties. In such instances, a public official may participate in matters involving his or her former employer or business associate, assuming no other conflicts are present. See A.O. 2007-5 (opining that a Smithfield Town Council member’s prior attorney-client relationship with an individual who sought legal advice related to his property that abutted the Slacks Reservoir dam did not prohibit him from participating in the Council’s consideration of a matter related to the release of funds to repair the Slacks Reservoir dam, given that the attorney-client relationship had ended and there were no plans for future representation); A.O. 2005-56 (opining that the Executive Assistant in the Office of the Health Insurance Commissioner (“OHIC”) was not prohibited from participating in two matters related to Blue Cross & Blue Shield of Rhode Island, notwithstanding that he had previously represented Blue Cross in matters unrelated to those over which the OHIC had jurisdiction). In the present matter, the Petitioner represents that he and his Client have terminated their attorney-client relationship as of June 6, 2013. He states that the nature of the representation was unrelated to the jurisdiction of the Board and that he has been paid in full for all services rendered. He further states that it is not reasonably foreseeable that he will represent this Client in the future. For all of these reasons, it is the opinion of the Ethics Commission that the Petitioner is not prohibited from participating in Board matters in which his former Client or any members/employees of his former Client’s law firm appear. This opinion solely addresses the Code of Ethics and provides no opinion as to whether the Rules of Professional Conduct or any other statute, charter, regulation, ruling or policy prohibits such conduct. Code Citations: § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-7(a) Commission Regulation 36-14-5002 Related Advisory Opinions: A.O. 2010-47 A.O. 2010-33 A.O. 2009-23 A.O. 2008-67 A.O. 2007-54 A.O. 2007-5 A.O. 2005-56 A.O. 2005-55 A.O. 2004-26 A.O. 2003-17 A.O. 98-142 A.O. 98-25 A.O. 96-62 Keywords: Business Associate [1] A “licensed clinical social worker” is permitted to practice clinical social work, whether in a private practice or in association with a public or private agency or institution. A “licensed independent social worker” is permitted to practice clinical social work autonomously, whether in private practice or in association with a public or private agency or institution. R.I. Gen. Laws § 5-39.1-3; R.I. Gen. Laws § 5-39.1-8 (licensing requirements for social workers). [2] Bridgemark was formerly known as Kent House.