The Ethics Board was asked by the Town Attorney to render an opinion as to whether an Assistant Town Attorney can or should refer a town employee to a private attorney on a matter which relates to the issue for which the town employee consulted the attorney. The Town Attorney also inquired if the opinion of the Ethics Board would be different if the private attorney was a relative of the Assistant Town Attorney.
By way of example, the Town Attorney gave a scenario wherein an Assistant Town Attorney is assigned the task of being the person for employees to speak with regarding complaints of harassment, sexual harassment, or workplace violence. The Town Attorney states that in such a role, it would be proper for the Assistant Town Attorney to recommend that the employee consult with a private attorney.
The Town of Brookhaven’s Code of Ethics and Disclosure is contained in Chapter 28 of the Town of Brookhaven Town Code. Section 28-5 (A)(2) of the Town of Brookhaven Town Code states:
A Town officer or employee shall not use his or her official position or office, or take or fail to take any action, in a manner which he or she knows or has a reason to know may result in a personal benefit, financial or otherwise, for any of the following persons:
(a) The Town officer or employee
(b) His or her outside employer or business
(c) A member of his or her household
(d) A customer or client (current or within the past five years)
(e) A family member
Here, the Assistant Town Attorney referring the employee to a family member would clearly be in violation of the Code Ethics because in making the referral the Assistant Town Attorney had to know the referral may result in a financial benefit to a family member. Making a referral to a private attorney that does not fall into one of the categories listed in Section 28-5 (A) (2) (a)-(e) would not in itself be a violation of the Town’s Code of Ethics. However, the Ethics Board is aware that there is a custom among private attorneys to pay a “referral fee” to referring attorneys. If the Assistant Town Attorney were to accept any such “referral fee” that would also be a violation of Section 28-5.
Since the Ethics Board is made up of attorneys at this point, the Town Attorney also asked us to opine as to whether the actions described above violated the Attorney Code of Professional Conduct. DR5-101 states that:
A lawyer shall not accept or continue employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests, unless a disinterested lawyer would believe that the representation of the client will not be adversely affected thereby and the client consents to the representation after full disclosure of the implications of the lawyer’s interest.
Therefore, it appears that it would also be a violation of the Code of Professional Conduct for an assistant town attorney to refer a matter to a family member or accept a referral fee wherein the Town could be a defendant.
In addition, as attorneys, the Ethics Board recommends that an Assistant Town Attorney as the contact person for harassment, sexual harassment, and/or workplace violence should make clear to an employee that contacts them with a complaint that they are only investigating the matter and that they cannot give the employee any legal advice as they are obligated to represent the interests of the Town; in order to avoid any conflict or the appearance of conflict in violation of section DR 5-105 regarding Conflicts of Interest and Simultaneous Representation. In further conference with the Town Attorney, it is the understanding of the Ethic Board that this is the practice already in place.