Opinion 91-33

You have asked this Committee for an opinion as to whether A must recuse himself from participating in a hearing before the Tax Review Board (TRB) of which he is a member under certain circumstances because of a conflict of interest.

Specifically, you have advised the Committee that you have recently become a member of a firm and as such you are required to make frequent appearances before the TRB. The TRB is an administrative agency within the City of Philadelphia, Department of Revenue created pursuant to the Philadelphia Home Rule Charter.

You have also told the Committee that A is a member of the TRB and he is also a retired partner in the firm of which you recently became a member. With regard to his status in the firm we are told that:

1. He is a retired partner;

2. While listed in certain legal directories as "Of Counsel," he is not "Of Counsel" to the firm;

3. He will be receiving retirement compensation from the firm until December 31, 1991;

4. While prohibited from practicing in competition with the firm, he does receive a percentage of fees earned by the firm from cases he refers to the firm;

5. He does not represent any firm clients and he is not included in the firm malpractice coverage; and

6. The firm provides him with an office and a secretary.

For the reasons set forth below, the Committee believes that A should recuse himself from participation in any hearing before the TRB in which you appear as counsel when A sits as a member of the TRB.

In Guidance Opinion 87-20, this Committee opined that ethical rules bar a lawyer from serving as a member of a quasi-judicial body while the lawyer or his or her firm continues to practice before the body. While this Committee does not express an opinion regarding the status of the TRB, that Guidance Opinion is nonetheless instructive. In that opinion this Committee also stated that Rule 8.4(e) of the Rules of Professional Conduct provides that "[I]t" is professional misconduct for a lawyer to state or imply an ability to influence improperly a government agency or official." Because of the relationship between A and the firm, the public will inevitably perceive that the law firm has a special relationship with the TRB of which A is a member. Rule 8.4(e) is intended to preclude such perceptions.

The Committee also believes that A's service on the TRB while you appear before the TRB would be contrary to Rule 8.4(d), which prohibits "conduct prejudicial to the administration of justice."

With regard to any waiver by the City Solicitor, it is the belief of the Committee that this is a conduct rule which may not be waived. Rules 8.4 (d) and (e) are mandatory in nature and do not permit a waiver of violations thereof. Rule 8.4(f) provides that a lawyer may not knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. Canon 3(C)(1)(a) of the Code of Judicial Conduct provides that:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned....

Thus, participation in a hearing before the TRB with A serving as a member thereof might give rise to a violation of Rule 8.4(f). Again, the rule is mandatory. Waiver of a violation of Canon 3(C)(1)(a) of the Code of Judicial Conduct would constitute a violation of Rule 8.4(1).

In addition, the Committee believes that the same Rule 8.4 analysis applies when you represent clients before other city boards or agencies when those same clients have matters pending before the TRB but are represented by other counsel.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.