83.20

OPINION NO. 83-20

An inquiry has been received concerning whether a Juvenile Counselor (the Counselor) with the Juvenile Services Administration (JSA) may have a private law practice: 1) handling adult cases from the Public Defender Panel List, and 2) handling private civil litigation.

The counselor works in the Prince George's County Region of the JSA, as a Senior Juvenile Counselor. She has a Master's degree in social work and indicates that she basically fulfills a social work function, providing therapy and counseling to juveniles and their families. She provides reports to the Juvenile Court (in Prince George's County, a part of the Circuit Court) as to a person's progress and fulfillment of the probation requirements; she prepares waiver reports regarding an individual's amenability to treatment where a person she has been counseling commits another crime; and she may see and counsel juveniles who are "found involved" and committed to Montrose School. Her duties may also involve making pre-sentence reports in the juvenile process, where she has seen the child before and the question is whether there will be commitment or probation.

The Counselor is also an attorney recently admitted to the Maryland Bar. She is interested in having a small private practice consisting of cases assigned by the Office of the Public Defender in Montgomery County, and of private civil litigation also in Montgomery County. The Public Defender System is established in Article 27A, Annotated Code of Maryland, with the stated purpose of providing "for the realization of the constitutional guarantees of counsel in the representation of indigents...in criminal and juvenile proceedings within the State...." The Office includes District and Branch offices and, in addition to its own fulltime employee attorneys, provides services through assignment of private attorneys from a Panel List (the Panel) in accordance with §6 of Article 27A. Panel attorneys are employed on a case-by-case contractual basis, and paid under a fee system established by the Public Defender. Though Panel attorneys owe their primary duty to the particular client as if they were privately engaged, they must report to the Office of the Public Defender on their representation activities.

On the "Adult Defenders Panel" for Montgomery County the Counselor would be involved in criminal cases in the District Court, and would take no cases that originated as waivers from Juvenile Court, or juvenile cases that could be returned to Juvenile Court. The Counselor's immediate JSA supervisor indicates that she does not believe this activity would create problems for JSA. She states that "within the agency, we are willing to allow *her* some flexibility in taking leave, when necessary, so that she can pursue a part-time law practice, an experience which could ultimately make her a more valuable employee." The Supervisor notes particularly that the activity would not involve juvenile clients, and would also be in another geographical area. She says that the Prince George's County JSA Region, except in few very unlikely situations, deals only with clients within the County. Also the office's relationship with the private bar is described as limited, though it may occasionally deal with representatives of the Public Defender in Prince George's County.

The JSA's Deputy Administrator indicates that the agency has no general policy forbidding outside practice. He too believes that the Counselor's work outside of Prince George's County and her intention not to accept any waivers or other juvenile cases limit the potential for a conflict of interest or impact on her State duties. He states that the only possible risk would be that her representation of defendants rather than the State could result in a change in her philosophy or approach, but sees this as a very limited risk. There are apparently no authority or contractual relationships between JSA and the Public Defender's Office, though staff of JSA may have some dealings with Public Defender attorneys who represent juveniles within the JSA program.

The Counselor describes her potential civil practice as very limited. She would anticipate taking very few civil cases, limiting them to Montgomery County residents. She indicates she would take no referrals from families or friends of children on probation. She states that she does not generally make known the fact that she is an attorney to her JSA clients or to others involved in her JSA counseling activities. None of her private law practice, including the Public Defender work, would involve the use of JSA time or materials.

This is an outside employment situation raising issues under §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). Subsection (a)(1)(i) of this provision bars officials and employees from having employment (or financial interests) with any entity that is under their authority or that of their agency, or that has or is negotiating a contract with their agency. Subsection (a)(1)(ii) further bars any other employment that would impair the individual's impartiality or independence of judgment. It would appear, given the nature of the Counselor's activities, that neither her Public Defender service nor her private civil practice would be prohibited under the strict language of subsection (a)(1)(i). We have generally viewed private practices as sole proprietorships with which the individual has both employment and a financial interest that could come within this subsection. However, as long as the Counselor does not handle juvenile cases or otherwise interact with JSA in her practice, there would appear to be no basis for treating this as prohibited employment under subsection (a)(1)(i).

An employment issue could be raised here, however, under the inconsistent employment bar of subsection (a)(1)(ii). We have looked at sole proprietorships that provide consulting or other personnel services to another party as resulting in an employment relationship with the party for purposes of §3-103(a), even where the services are provided under a contractual arrangement. In our Opinion No. 83-7, for example, we considered a private practice/referral situation very similar to the one presented here, concluding that the individual had an employment relationship with the referring entity.1 Under subsection (a)(1)(ii), we have generally looked to relationships between the official duties and private employment to evaluate whether the private activity would impact on job performance. Where the employing entity is a State agency, the prohibition has applied where there were clear personal and organizational conflicts that could not be handled within the personnel and administrative framework. In evaluating this particular situation, we find the geographical and subject matter separation to be key factors. Also, we do not believe that the Counselor's occasional dealings with Public Defender attorneys, or her representation of opposite sides (the State and the defendant) in two different aspects of the criminal process require a finding that her two employment activities are inherently inconsistent under §3-103(a)(1)(ii).

Our conclusion that the Counselor's Public Defender service would not violate this subsection is, however, based upon her assurance that this employment would not involve any cases waived from Juvenile Court or adult cases that could be waived back to Juvenile Court. Moreover, she has indicated that she would undertake to handle no cases involving family members of juvenile offenders that she has counseled, or adults with whom she worked in the juvenile system. She should also avoid serving as a Public Defender attorney in cases where the total situation involves facts and circumstances that are also being addressed in the Juvenile Court. Further, both the Counselor and her outside employer should be aware that §3-107 of the Ethics Law bars an employee's use of otherwise confidential information for their own economic gain or that of another. Given this prohibition, and the confidentiality of much of the juvenile court process, it is essential that the Counselor's outside employment not involve any connections with the Juvenile Court system, in Prince George's or any other County.

We believe that many of these same principles apply to the Counselor's proposed private civil practice. She must take care in this practice not to take any referrals from individuals involved with her work in the juvenile justice system. She should also be aware that §3-101 of the Ethics Law prohibits her non-ministerial participation in any matter in which she has an interest, or which involves as a party certain entities with which she is affiliated. Though technical application of this prohibition depends upon the facts of a particular situation, she should be concerned, for example, about being involved as a JSA counselor in a case involving the child of an adult that she has represented in a private matter. Section 3-104 of the Ethics Law also bars an employee from using the prestige of his office for his own economic benefit or that of another. Thus, in addition to §3-101 and §3-107 (discussed above), the Counselor should also take care not to seek private clients by reference to her official position or duties.

Herbert J. Belgrad, Chairman
   Jervis S. Finney
   Reverend John Wesley Holland
   Betty B. Nelson
   Barbara M. Steckel

Date: July 27, 1983

——————

1 Except as expressly cited to the Maryland Register, Opinion citations are to Ethics Commission Opinions published in COMAR Title 19A.