88.21

OPINION NO. 88-21

An advisory opinion has been requested from an elected State's Attorney concerning whether and how the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law) would apply to prohibit or limit a proposed private practice of law that would include the State's Attorney and another local private practitioner1 as partners and a member of the local Board of County Commissioners as a law clerk. We advise the Requestor that though the practice as proposed would not on its face be inconsistent with the Ethics Law, the State's Attorney must take care in developing the partnership to stay within the constraints discussed in this Opinion.

This request is presented by an elected State's Attorney who indicates that in his County he is not prohibited from having a private practice. This is apparently a reflection of the salary that is established for his position by the General Assembly, which is below that of some of his assistants, whose salary is set by the County. With one exception the assistants do not have private practices. The Requestor thus describes his position as part-time. He says that he currently has a law practice that includes civil commercial practice. He does no criminal work, and does no work that directly involves the County government. He says he does tort and contract litigation involving solely private parties, domestic relations work and landlord tenant cases, and none of the clients or matters interface with his office.

His proposed partner is described as having a similar practice, with, however, a very limited amount of criminal work that would be discontinued. They would employ as a law clerk an individual who is both a County Commissioner in his County and a teacher at a Community College. This individual is also a law student and would plan to join the firm as a regular member after he completes his legal education. He probably would leave his teaching position if he were to undertake the proposed employment with the firm. (We thus do not address in detail here the question of Ethics Law application to this individual as a State employee at the Community College, though we note as a general matter that there would seem to be no relationships that would give rise to a conflict arising from that employment.)

The primary question presented here, then, has to do with the application of the provisions of the Ethics Law to the State's Attorney and this proposed private practice.2 The Office of the State's Attorney is established in Article V of the Maryland Constitution, which provides for an attorney for the State in each county and Baltimore City, who is to perform the duties and receive the compensation prescribed by the General Assembly. Article 10, § 34, Annotated Code of Maryland provides that the "State's Attorney for each county and the City of Baltimore shall, in each county or city, prosecute and defend, on the part of the State, all cases in which the State may be interested, subject to the provisions of *the State Prosecutor law*." The State's Attorney is responsible for prosecuting all crime in the county, and has wide discretion to prosecute and investigate crimes.

This view of the Office's responsibilities is confirmed in Sinclair v. State, a leading Court of Appeals case dealing with a conflict of interest of a State's Attorney. The court in this case indicates that the "office, which exists by virtue of the Maryland Constitution, is of great significance as, regarding criminal prosecutions, its occupant is vested with much of the sovereign power of the State.... It is clear that state's attorneys in the State have very wide and largely unreviewable discretion as to whether or not to pursue the prosecution of criminal offenses." Quoting from another case, the court notes that the State's Attorney's "decision is controlling and he is accountable for it to no one other than the electorate." 278 Md. 243, 252-3 (1976). The subject matter that could come within the prosecuting authority of the State's Attorney is thus extremely broad. Prosecutions could involve businesses or their officers, including conspiracy, embezzling, credit card offenses, a variety of frauds, corporate misrepresentation, and bad checks.

In particular, in considering how employment in a law practice of a local county commissioner could impact on the performance of his functions as State's Attorney, it is important that though the State's Attorney is himself a State official, his Office functions as a part of local government and therefore has some significant relationships to the County governing body. Most significant is the County Commissioners' budget and personnel authority over the State's Attorney's Office. Also, the State's Attorney has responsibilities for investigation and enforcement of wrongdoing by County officials and employees and could be expected to serve as a resource in County planning and policy activities. For example, in an area of significant population growth, planning activities would be expected to include input from the County's chief prosecuting officer.

We have in many prior Opinions held that private professional practices constitute business entities in which an individual would have both an employment and interest relationship that could be subject to the limitations of §3-103(a) of the Ethics Law. This section prohibits an official or employee from being employed by or having an interest in an entity that is subject to the authority of or contracts with his agency (subsection (a)(1)(i)). It further prohibits any other employment that would impair the individual's impartiality or independence of judgment in carrying out his official duties (subsection (a)(1)(ii)). As there does not appear to be a likelihood of contractual or authority relationships between the proposed law firm and the Requestor's office, we believe that the issue is whether the practice, as proposed to be organized, would be prohibited or limited by the inconsistent employment provision of subsection (a)(1)(ii).

We have in applying this provision looked to the relationships between the private and official activity to evaluate whether the private activity would give rise to interests that would impact on the person's performance of State responsibilities. This request is very generally stated, dealing with a practice that will operate in the future with a continuing and dynamic clientele. Though it is thus difficult to provide specific and definitive advice, we can give some general guidance, involving two particular areas of concern that must be considered if the Requestor is to avoid conflicts under the Ethics Law. First, the Requestor needs to be sure that the practice is limited to the kinds of private commercial clients that are not likely to be in any way involved with criminal prosecution activities of his Office. His practice as described would seem to reflect an effort to establish the required limitations, which should continue to be scrupulously followed.

Second, the Requestor needs to be sensitive to potential issues arising from the fact that the practice will include, initially as an employee supervised by him, a person who as a local elected official is in a position of review and legislative direction as to the office for which he is responsible on behalf of the State. Subsequently this person will become his partner. With regard to this issue, the Requestor recognizes also that his affiliation with a high-level official in county government would limit the ability of his office to carry out functions relating to corruption in government. He indicates, though, that as a practical matter these functions are handled by the State Prosecutor's Office.

Also, the Requestor indicates that his practice does not handle any criminal cases or zoning, licensing, or other cases being directly considered by the County government, nor does it appear that this is expected to change. No involvement in civil litigation against the State is anticipated. The proposed partners expect to work only on civil litigation such as contract trials, landlord tenant work, and estates and trusts. There are no plans whatever to expand the firm to employ any person who works as an Assistant State's Attorney.

We recognize that the law applicable to the State's Attorney in the Requestor's county permits him to engage in the private practice of law, despite some of the inherent issues that are presented by his appearance before the county's two-judge bench and dealings in a private capacity with the relatively small bar (80 or so lawyers). In view of this statutory approach of allowing private practice, we do not believe that the Requestor's practice, in itself, would be barred by the application of the Public Ethics Law to him as a State's Attorney. The Ethics Law does, however, give rise to significant restraints. Given the breadth of the authority of the State's Attorney, and the fact that his discretion includes the ability to decide not to proceed with regard to a particular matter, the Ethics Law's inconsistent employment provision would require that the practice avoid as clients any persons or entities that have any significant dealings with the State's Attorney's office or the criminal justice system.

This would include, for example, avoiding any criminal cases, and restricting civil practice to matters where there has been no prior criminal proceeding and where there is no reasonable likelihood of criminal proceedings arising from the matter in the future. Examples of potential problems would be an automobile tort case that involves a criminal prosecution; a domestic relations case that would likely lead to a nonsupport prosecution; a property transaction that includes or leads to a trespassing prosecution; or a financial matter where a client is a financial institution that frequently prosecutes bad-check cases. The Requestor should also be aware that he would need to withdraw his representation in a matter if a criminal action relating to it were to be instituted.

Further, we do not believe that the inclusion in the practice (first as an employee and later as a partner) of a local county commissioner would bring the practice, on its face, within the prohibition of §3-103(a)(1)(ii) of the Law, as that prohibition is applied to the Requestor. We do believe, however, that it adds significantly to the burden on the Requestor to ensure that the practice functions in its clientele and its operation in such a way that it does not interfere with the effective functioning of the Office of the State's Attorney, both as a local entity and as the office of the State's legal officer in the jurisdiction. It is not possible to accurately predict the circumstances where this relationship would be a problem. If the situation develops that issues are frequently arising that impact on the ability of the Office to operate properly, either administratively or in the prosecution of crimes, then the relationship between the Requestor and the County Commissioner would need to be re-evaluated.

Moreover, we want to make it clear that this Opinion deals only with the application of the provisions of the Public Ethics Law to the State's Attorney. This County, pursuant to Title 6 of the Law, has a local ethics ordinance and local ethics commission whose responsibility is to address the conduct of local officials, including the county commissioners. In our view, the issues and considerations under those provisions relating to the relationship of a county commissioner as an employee of the local State's Attorney involve his position as a principal legislative and executive officer in the County. They are different from the issues considered by us with regard to the State's Attorney. We therefore do not in this Opinion comment in any way on how or to what extent the local ethics provisions would apply to limit or bar this affiliation on the part of the county commissioner.3

M. Peter Moser, Chairman
    William J. Evans
    Rev. C. Anthony Muse
    Betty B. Nelson

Date: September 13, 1988

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1 At the time of the original request, the second partner was identified as a member of the County's Board of Liquor License Commissioners. He has resigned from this position, however, and this Opinion does not address the issues that would be presented by this relationship.

2 It is important in considering the issues presented by this request to be aware at the outset of the extent of the jurisdiction of the State Ethics Law over these parties. The State's Attorney is subject to the Ethics Law as a State official as defined in §1-201(gg) of the Law. The proposed clerk would in his status as a County Commissioner be within the jurisdiction of the local ethics commission, pursuant to the definition of local official in §1-201(u) and Title 6 of the State Ethics Law.

3 The Requestor should also be aware that we do not in this Opinion address the requirements of the Maryland Lawyers' Rules of Professional Conduct (1987).