Abstract of Advisory Opinion No. 98-19
BEFORE THE NEVADA COMMISSION ON ETHICS
In the Matter of the Request for Opinion of Public Employee
This Opinion is in response to a first-party request for opinion filed with the Nevada Commission on Ethics (Commission) by a public employee seeking guidance from the Commission regarding whether her referral of a complainant she was representing in a criminal matter to her husband for advice and representation on civil litigation matters was an abuse of her position as public attorney in violation of city and state laws. A confidential hearing was held by the Commission on November 12, 1998, in Reno, Nevada. The Commission received testimony from Ms. A, her husband, and Ms. A's superior. Ms. A did not waive statutory confidentiality, so the proceeding was not open to the public. The Commission now issues the Findings of Fact and Opinion which follow.
FINDINGS OF FACT
1. At all times relevant to this opinion request, Ms. A was a public in her office's Criminal Division.
2. In her capacity as public attorney, she was assigned to prosecute two cases against a defendant, Mr. D, who was charged with the crimes of stalking and violating a temporary protection order (TPO). The victim of each offense was Ms. V.
3. Ms. V was also involved in a civil litigation matter with Mr. D regarding disputes arising out of the dissolution of their partnership in a real estate business.
4. Ms. A's superior asked Ms. A to take special care with Ms. V as Ms. V was a long-time acquaintance of Ms. A's superior. Therefore, Ms. A extended Ms. V the courtesy of allowing her to call Ms. A at home with any questions or concerns she may have had.
5. Ms. V called Ms. A at her home on a number of occasions. When Ms. V started asking questions about her civil case, Ms. A referred those questions to her husband, a general practice attorney. Eventually, Ms. V mentioned her dissatisfaction with her attorney and asked if Mr. A would represent her in the civil matters. Both Ms. A and Mr. A testified that they encouraged Ms. V to stay with her present attorney since trial was set to begin on June 3, 1998. Towards the end of April 1998, Ms. V again called Mr. A and explained that she and her attorney had had a falling out and again appealed to him to represent her in her civil action. Mr. A repeated his concerns about a potential conflict of interest with his wife and about the short amount of time he would have to prepare for trial. Mr. A and Ms. A reviewed the pertinent law for any potential conflict resulting from his representing Ms. V and Ms. A being the prosecutor in the criminal case. Before making a decision, Ms. A sought her superior's advice regarding the potential conflict of Mr. A representing one of his wife's complainants. Ms. A's superior advised that she did not see any problem with Mr. A's representation of Ms. V. Ms. A's superior testified at hearing that s/he had proffered this advice without the proper consideration and admitted it was not the advice that should have been given.
6. After being informed of the approval by Ms. A's superior, Mr. A agreed to represent Ms. V conditioned upon the judge's approval. On May 6 or 7, 1998, Mr. A and Ms. V's previous attorney met with the presiding judge. The judge reportedly refused to release the previous attorney as counsel unless Mr. A agreed to substitute in.
7. On May 8, 1998, Mr. A substituted in as counsel for Ms. V.
8. On either May 28 or 29, 1998, Ms. A was given notice of termination. On either May 30 or 31, 1998, Mr. A and Ms. A went to her office to remove her belongings from her office. While there they met with her superior and discussed certain matters. At the conclusion of their conversation, the superior agreed to reexamine the reasons for terminating Ms. A and Ms. A left the office still an employee of the office. At that meeting, the superior brought the municipality's law to the attention of Mr. A and Ms. A. At that time it was suggested that a letter be written to this Commission to request guidance. The superior testified that his/her advice to Mr. A was that if Mr. A insisted on representing Ms. V in this matter, he should do so on a pro bono basis.
9. On June 2, 1998, Ms. A sent her opinion request letter to the Commission.
10. Ms. V's civil trial occurred from June 3, 1998 through June 5, 1998.
11. Mr. D had requested and obtained a continuance of the criminal trial until after the civil matter was heard.
12. Eventually, Ms. V's and Mr. D's criminal case was removed from Ms. A's public attorney office to another public attorney's office.
13. On or about June 25, 1998, Ms. A was terminated from her employment. Her termination was not related to the V issue.
ANALYSIS AND OPINION
The Commission has jurisdiction over this matter pursuant to NRS 281.465(1)(a) and 281.511(2)(b) because Ms. A is a public officer as defined in NRS 281.4365.
The issue in this matter is whether Ms. A used her position as a public attorney to grant an unwarranted privilege, preference or advantage for herself and a member of her household in violation of NRS 281.481(2).
NRS 281.481(2) provides:
A public officer or employee shall not use his position in government to secure or grant unwarranted privileges, preferences, exemptions or advantages for himself, any member of his household, any business entity in which he has a significant pecuniary interest, or any other person.
The ordinance questioned by Ms. A's superior, Mr. A and Ms. A, is essentially identical to NRS 281.481(2). Ms. A does not dispute that she is bound by both the ordinance and NRS 281.481(2), but requests advice on whether she, by her conduct, violated the applicable provisions of city and state law. For our purposes, this opinion will refer to NRS 281.481(2) only.
The Commission concludes that there is a violation of NRS 281.481(2). Ms. A may not have intentionally directed a potential client to her husband for advice with the foreseeable outcome that the casual relationship would eventually turn into a paying attorney-client relationship, however, both Ms. A and Mr. A ultimately benefited financially from the arrangement. This benefit was unwarranted because it was easily avoidable. It does not matter how, where, or why the situation presented itself. What does matter is that this situation could have been prevented by Ms. A's referring Ms. V's questions on civil law matters to a non-relative attorney or by Mr. A similarly providing such a referral. Public employees need to maintain a separation of their personal and private relationships that may in any way provide an unwarranted privilege or advantage that otherwise would not have presented itself had the person not been a public employee.
The Commission is not satisfied with Ms. A's superior's explanation for his/her initial advice permitting Mr. A's representation of Ms. V. Such advice, given without due consideration, unnecessarily exposed both the superior, Ms. A, Mr. A, and even Ms. V to potential legal and ethical liability. In the future, the public attorney's office is encouraged to seek the counsel of this Commission and its staff before providing such potentially detrimental advice to its employees on such conflict-of-interest issues.
Finally, the Commission examined whether Ms. A's behavior was willful and determined that it was not.
CONCLUSION
Based upon the record, the Commission concludes that Ms. A violated NRS 281.481(2) by referring her client in a criminal matter to her husband on civil matters where her husband was compensated for such service, but such violation was not willful and, thus, does not merit a civil penalty.
COMMENT
It is specifically noted that the foregoing Opinion applies only to these specific facts and circumstances. The provisions of the Nevada Revised Statutes quoted and discussed above must be applied on a case-by-case basis, with results which may vary depending on the specific facts and circumstances involved.
DATED: April 17, 1999.
NEVADA COMMISSION ON ETHICS
By: /s/ MARIO RECANZONE, Vice Chairman