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Advisory Opinion No. 187

The question is whether an attorney who works for the City as such may have a private professional practice.

In general, the Ethics Commission [Commission] believes that any attorney may do so, provided 1) the outside work does not impinge on the performance of official duties; 2) City time, equipment, material, or premises are not used; and 3) the attorney's department head does not prohibit private practices or outside employment altogether.

The Commission understands the facts to be as follows: Attorney X is a former federal employee and a deputy in Department Z. He also has a small private practice limited to plaintiffs in medical malpractice cases.

Two general rules apply to the facts in this case. First, under the City's standards of conduct, attorneys who come to work for the City have a reasonable time in which to complete cases from their previous employment, whether the work was for the government or for private clients, provided the City attorneys do not use City time, equipment, material, or premises to do so. Therefore, Attorney X should be allowed a reasonable time to complete necessary work for his former employer or private clients.

Second, full-time City and County officers, such as deputy prosecuting attorneys or deputy corporation counsels, may have gainful, occupational employment or private, professional practices, provided the employment or practice is compatible with official duties under Section 11-102.3, Revised Charter of the City and County of Honolulu 1973 (1984 Ed.) [RCH]. This rule was established in Advisory Opinion No. 141, which concerned a specific category of licensed professional. In accordance with Section 11-104, RCH, relating to fair and equal treatment, the Commission has extended this rule to all categories of licensed professionals who work as such for the City.

For attorneys, the second question of compatibility turns initially on definitions of the terms "gainful" and "occupational." "Gainful" means for compensation and "occupational" means the kind of law the government lawyer practices. Therefore, in general deputy prosecuting attorneys should not, for compensation, have a criminal law practice while deputy corporation counsels should not, for compensation, have clients who are suing the City. If this requirement is satisfied, the question of compatibility on a case-by-case basis needs to be answered.

Because the facts of each case vary, a deputy prosecutor or deputy corporation counsel should request an opinion from the Commission if any connection exists, or may appear to exist,

between a private client or case and official duties of the employee's department.

In this case, Attorney X has a small number of private clients who are plaintiffs in medical malpractice suits. Because no relation exists, or appears to exist, between such plaintiffs or suits and the work of Department Z, the private practice is compatible with the official duties of Attorney X and Department Z.

In conclusion, under either of two rules, Attorney X should be allowed to finish representation of clients in malpractice cases, as long as such representation does not impinge upon the performance of his official duties. First, attorneys entering City employment should have a reasonable amount of time to complete cases from previous practices. Second, licensed professionals may have outside professional practices, provided the practice is compatible with official duties. In this case, the malpractice cases appear to be compatible with the official duties of Attorney X and Department Z. However, the head of Department Z may establish a higher, or more restrictive, standard of conduct, and thereby prohibit any outside gainful, occupational employment or private professional practice.

 

Dated: July 25, 1988

JANE B. FELLMETH

Chair, Ethics Commission

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ADVISORY OPINION NO. 187

 

 

The question is whether an attorney who works for the City as such may have a private professional practice.

In general, the Ethics Commission [Commission] believes that any attorney may do so, provided 1) the outside work does not impinge on the performance of official duties; 2) City time, equipment, material, or premises are not used; and 3) the attorney's department head does not prohibit private practices or outside employment altogether.

The Commission understands the facts to be as follows: Attorney X is a former federal employee and a deputy in Department Z. He also has a small private practice limited to plaintiffs in medical malpractice cases.

Two general rules apply to the facts in this case. First, under the City's standards of conduct, attorneys who come to work for the City have a reasonable time in which to complete cases from their previous employment, whether the work was for the government or for private clients, provided the City attorneys do not use City time, equipment, material, or premises to do so. Therefore, Attorney X should be allowed a reasonable time to complete necessary work for his former employer or private clients.

Second, full-time City and County officers, such as deputy prosecuting attorneys or deputy corporation counsels, may have gainful, occupational employment or private, professional practices, provided the employment or practice is compatible with official duties under Section 11-102.3, Revised Charter of the City and County of Honolulu 1973 (1984 Ed.) [RCH]. This rule was established in Advisory Opinion No. 141, which concerned a specific category of licensed professional. In accordance with Section 11-104, RCH, relating to fair and equal treatment, the Commission has extended this rule to all categories of licensed professionals who work as such for the City.

For attorneys, the second question of compatibility turns initially on definitions of the terms "gainful" and "occupational." "Gainful" means for compensation and "occupational" means the kind of law the government lawyer practices. Therefore, in general deputy prosecuting attorneys should not, for compensation, have a criminal law practice while deputy corporation counsels should not, for compensation, have clients who are suing the City. If this requirement is satisfied, the question of compatibility on a case-by-case basis needs to be answered.

Because the facts of each case vary, a deputy prosecutor or deputy corporation counsel should request an opinion from the Commission if any connection exists, or may appear to exist,

between a private client or case and official duties of the employee's department.

In this case, Attorney X has a small number of private clients who are plaintiffs in medical malpractice suits. Because no relation exists, or appears to exist, between such plaintiffs or suits and the work of Department Z, the private practice is compatible with the official duties of Attorney X and Department Z.

In conclusion, under either of two rules, Attorney X should be allowed to finish representation of clients in malpractice cases, as long as such representation does not impinge upon the performance of his official duties. First, attorneys entering City employment should have a reasonable amount of time to complete cases from previous practices. Second, licensed professionals may have outside professional practices, provided the practice is compatible with official duties. In this case, the malpractice cases appear to be compatible with the official duties of Attorney X and Department Z. However, the head of Department Z may establish a higher, or more restrictive, standard of conduct, and thereby prohibit any outside gainful, occupational employment or private professional practice.

 

Dated: July 25, 1988 JANE B. FELLMETH

Chair, Ethics Commission

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ADVISORY OPINION NO. 187

 

 

The question is whether an attorney who works for the City as such may have a private professional practice.

In general, the Ethics Commission [Commission] believes that any attorney may do so, provided 1) the outside work does not impinge on the performance of official duties; 2) City time, equipment, material, or premises are not used; and 3) the attorney's department head does not prohibit private practices or outside employment altogether.

The Commission understands the facts to be as follows: Attorney X is a former federal employee and a deputy in Department Z. He also has a small private practice limited to plaintiffs in medical malpractice cases.

Two general rules apply to the facts in this case. First, under the City's standards of conduct, attorneys who come to work for the City have a reasonable time in which to complete cases from their previous employment, whether the work was for the government or for private clients, provided the City attorneys do not use City time, equipment, material, or premises to do so. Therefore, Attorney X should be allowed a reasonable time to complete necessary work for his former employer or private clients.

Second, full-time City and County officers, such as deputy prosecuting attorneys or deputy corporation counsels, may have gainful, occupational employment or private, professional practices, provided the employment or practice is compatible with official duties under Section 11-102.3, Revised Charter of the City and County of Honolulu 1973 (1984 Ed.) [RCH]. This rule was established in Advisory Opinion No. 141, which concerned a specific category of licensed professional. In accordance with Section 11-104, RCH, relating to fair and equal treatment, the Commission has extended this rule to all categories of licensed professionals who work as such for the City.

For attorneys, the second question of compatibility turns initially on definitions of the terms "gainful" and "occupational." "Gainful" means for compensation and "occupational" means the kind of law the government lawyer practices. Therefore, in general deputy prosecuting attorneys should not, for compensation, have a criminal law practice while deputy corporation counsels should not, for compensation, have clients who are suing the City. If this requirement is satisfied, the question of compatibility on a case-by-case basis needs to be answered.

Because the facts of each case vary, a deputy prosecutor or deputy corporation counsel should request an opinion from the Commission if any connection exists, or may appear to exist,

between a private client or case and official duties of the employee's department.

In this case, Attorney X has a small number of private clients who are plaintiffs in medical malpractice suits. Because no relation exists, or appears to exist, between such plaintiffs or suits and the work of Department Z, the private practice is compatible with the official duties of Attorney X and Department Z.

In conclusion, under either of two rules, Attorney X should be allowed to finish representation of clients in malpractice cases, as long as such representation does not impinge upon the performance of his official duties. First, attorneys entering City employment should have a reasonable amount of time to complete cases from previous practices. Second, licensed professionals may have outside professional practices, provided the practice is compatible with official duties. In this case, the malpractice cases appear to be compatible with the official duties of Attorney X and Department Z. However, the head of Department Z may establish a higher, or more restrictive, standard of conduct, and thereby prohibit any outside gainful, occupational employment or private professional practice.

 

Dated: July 25, 1988 JANE B. FELLMETH

Chair, Ethics Commission

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ADVISORY OPINION NO. 187

 

 

The question is whether an attorney who works for the City as such may have a private professional practice.

In general, the Ethics Commission [Commission] believes that any attorney may do so, provided 1) the outside work does not impinge on the performance of official duties; 2) City time, equipment, material, or premises are not used; and 3) the attorney's department head does not prohibit private practices or outside employment altogether.

The Commission understands the facts to be as follows: Attorney X is a former federal employee and a deputy in Department Z. He also has a small private practice limited to plaintiffs in medical malpractice cases.

Two general rules apply to the facts in this case. First, under the City's standards of conduct, attorneys who come to work for the City have a reasonable time in which to complete cases from their previous employment, whether the work was for the government or for private clients, provided the City attorneys do not use City time, equipment, material, or premises to do so. Therefore, Attorney X should be allowed a reasonable time to complete necessary work for his former employer or private clients.

Second, full-time City and County officers, such as deputy prosecuting attorneys or deputy corporation counsels, may have gainful, occupational employment or private, professional practices, provided the employment or practice is compatible with official duties under Section 11-102.3, Revised Charter of the City and County of Honolulu 1973 (1984 Ed.) [RCH]. This rule was established in Advisory Opinion No. 141, which concerned a specific category of licensed professional. In accordance with Section 11-104, RCH, relating to fair and equal treatment, the Commission has extended this rule to all categories of licensed professionals who work as such for the City.

For attorneys, the second question of compatibility turns initially on definitions of the terms "gainful" and "occupational." "Gainful" means for compensation and "occupational" means the kind of law the government lawyer practices. Therefore, in general deputy prosecuting attorneys should not, for compensation, have a criminal law practice while deputy corporation counsels should not, for compensation, have clients who are suing the City. If this requirement is satisfied, the question of compatibility on a case-by-case basis needs to be answered.

Because the facts of each case vary, a deputy prosecutor or deputy corporation counsel should request an opinion from the Commission if any connection exists, or may appear to exist,

between a private client or case and official duties of the employee's department.

In this case, Attorney X has a small number of private clients who are plaintiffs in medical malpractice suits. Because no relation exists, or appears to exist, between such plaintiffs or suits and the work of Department Z, the private practice is compatible with the official duties of Attorney X and Department Z.

In conclusion, under either of two rules, Attorney X should be allowed to finish representation of clients in malpractice cases, as long as such representation does not impinge upon the performance of his official duties. First, attorneys entering City employment should have a reasonable amount of time to complete cases from previous practices. Second, licensed professionals may have outside professional practices, provided the practice is compatible with official duties. In this case, the malpractice cases appear to be compatible with the official duties of Attorney X and Department Z. However, the head of Department Z may establish a higher, or more restrictive, standard of conduct, and thereby prohibit any outside gainful, occupational employment or private professional practice.

 

Dated: July 25, 1988 JANE B. FELLMETH

Chair, Ethics Commission

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ADVISORY OPINION NO. 189

 

 

The question is whether an employee who is a landscape architect [employee] may volunteer his services, name, and stamp as a landscape architect to private interests for plans that require approval from the Department of Land Utilization [DLU].

In general, ethical questions will not arise if the employee designs and donates the landscape plans to private interests as long as he omits his name and stamp on plans presented to the DLU for approval. The DLU does not require a landscape architect's name and stamp on landscape plans submitted with architectural plans. If the employee wishes to have his name and stamp on the plans, ethical questions will arise, and the Commission will then respond to a written request from the employee or his appointing authority for an opinion.

The Commission understands the facts to be as follows:

The employee is a landscape architect who has offered his services as such free of charge to a church for the development of a landscape plan for a property where construction is planned on the North Shore.

The DLU reviews and approves architectural plans bearing the name and stamp of an architect. Normally, the DLU does not have the authority to approve landscape plans that are included with architectural plans. The DLU does review and approve landscape architectural plans for special areas such as the Shoreline Management Area, in which the church's property is located on the North Shore. A licensed landscape architect does not need to sign and stamp these plans, but architects usually have a landscape architect do so in order to improve the presentation made to the DLU.

Given these facts, the ethical question is whether, under Section 6-l.2(3), Revised Ordinances of Honolulu l978 (l983 Ed.) [ROH],1 licensed design professionals, such as landscape architects, "appear" before a City agency when they

a. volunteer personal services, name, and

professional stamp to private interests, or

b. work for a non-profit, non-partisan, human-services organization.

The general rule is that the presence of a design professional's name and stamp on plans submitted for City approval constitutes a prohibited appearance under Section 6-l.2(3), ROH.

The Commission does not need to address this question because landscape plans that are required and therefore included with architectural plans for the church's property in the Special Shoreline Management Area do not need a landscape architect's name and stamp affixed in order to obtain DLU approval. Therefore, the employee may volunteer his services but omit his name and stamp on the plans. If the architect wishes to include the employee's name and stamp in order to make a better presentation to the DLU, the Commission will address this question herein at the employee's written request.

In conclusion, an employee who is a landscape architect has asked the Commission whether he may volunteer his services, signature, and professional stamp as a landscape architect on plans by a church to build on a North Shore property, which is in the Shoreline Management Area. Normally, the DLU approves architectural plans but not landscape plans. The DLU does review

and approve landscape plans for work within the Shoreline Management Area, such as the work planned for the church's property. However, the DLU does not require the landscape architect's name or professional stamp on the plans. Therefore, in this case, the employee may design the plans without signing and stamping them and thereby avoid any questions of appearances before the DLU. If the employee wishes to sign and stamp the plans, he may request in writing that the Commission determine whether an appearance 1) without compensation or 2) for an organization such as a church is a violation of the City's standards of conduct.

Dated: July 26, 1988 JANE B. FELLMETH

Chair, Ethics Commission

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Last Reviewed: Monday, July 29, 2002