This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on December 3, 2004, basing its approval solely on the facts and circumstances stated herein.
 

May an attorney who formerly represented a state board now represent private clients before that board?

State law restricts the Mississippi Ethics Commission to interpreting and issuing opinions on Sections 25-4-101 through 25-4-119, 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890. Therefore, this opinion does not address the Mississippi laws outside the Commission’s jurisdiction nor the governmental entity’s internal rules and regulations.

The pertinent conflict of interest laws to be considered here are:

Code Section 25-4-103(c), (e), (g)(v), (h), (l), (m) and (p)(i)(ii)(iii) states:
 

“(c) ‘Business’ means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.

(e) ‘Compensation’ mean money or thing of value received, or to be received, from any person for services rendered.

(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(h) 'Governmental entity' means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state.

(l) ‘Pecuniary benefit’ means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be
deemed a pecuniary benefit.

(m) ‘Person’ means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.

(p) ‘Public servant’ means:

(i) Any elected or appointed official of the government;

(ii) Any officer, director, commissioner, supervisor, chief, head, agent or employee of the government or any agency thereof, or of any public entity created by or under the laws of the State of Mississippi or created by an agency or governmental entity thereof, any of which is funded by public funds or which expends, authorizes or recommends the use of public funds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of funds authorized to be expended by the government.”

Code Section 25-4-105(3)(e) and (5) states:
 

“(3) No public servant shall:

(e) Perform any service for any compensation for any person or business after termination of his office or employment is relation to any case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated during the period of his service or employment.

(5) No person may intentionally use or disclose information gained in the course of or by reason of his official position or employment as a public servant in any way that could result in pecuniary benefit for himself, any relative, or any other person, if the information has not been communicated to the public or is not public information.”

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

I provided legal representation and legal services as an attorney for a state Board on behalf of the State of Mississippi for a period of time from on or about August 5, 1992, through June 30, 2004. For the period from on or about mid 1993 through June 30, 2004, I was performing said legal services via a Contractual Arrangement that was approved by the Board, the Attorney General and by the State Personnel Board.The term of each of my contracts was for a one (1) year period and the contract was extended and renewed from year to year.

I am requesting an official Ethics Opinion with regard to the following: I desire to represent licensed professionals [who are regulated by the Board] as soon as possible before the Board and in our Courts pertaining to disciplinary actions involving such professionals.

The questions that I would like for the Mississippi Ethics Commission to fully and completely answer in the official Opinion are as follows:

1. Based on the Ethics Opinions, Ethics laws, other laws of the State of Mississippi and the Mississippi Constitution, on what date will it be legally permissible and legally proper for me to represent and provide legal services to licensed professionals
before a Panel of the Board, the entire Board and in any Court in this State with regard to disciplinary actions involving licensed professionals?

2. Secondly, is there a period of time that I must allow to expire from June 30, 2003, prior to my providing legal services and legal assistance for licensed professionals with regard to disciplinary actions involving licensed professionals?

Based solely on the facts and circumstances presented by the requestor, the Commission’s opinion is as follows.

An attorney for a state board is a public servant because he or she acts as an agent for the client. Anyone who is an agent of the government may be a public servant, as defined in Section 25-4-103(p)(ii), Miss. Code of 1972, quoted above. Section 25-4-105(3)(e), Miss. Code of 1972, quoted above, prohibits an attorney who formerly represented a state board from representing paying clients
before that board in any “case, decision, proceeding or application with respect to which he was directly concerned or in which he personally participated” while he was representing the board. (emphasis added)

For example, if an action was undertaken by or on behalf of the board to discipline an individual professional and the requestor, as the board’s attorney, had some involvement in that matter, then the requestor would be prohibited from representing that individual in the same
disciplinary proceeding, whether the representation would be before the board or a court. This restriction is limited only to matters in which the former public servant was involved, but it has no fixed time limit. The prohibition exists for as long as the matter giving rise to the conflict continues. Yet there is no waiting period during which the requestor would be barred from undertaking permissible representation as described herein. Conversely, the requestor is not precluded from representing all persons who have ever been before the board. He is merely precluded from being paid for working on any matter in which he was involved during his representation of the board.

Additionally, the requestor may not “intentionally use or disclose [confidential] information gained in the course of or by reason of his” representation of the state board in a way which could result in a monetary benefit to anyone. Section 25-4-105(5), Miss. Code of 1972, quoted above. Thus, any confidential information the requestor may have learned as attorney for the state board may not be used by him or revealed by him to anyone if the information could possibly result in a monetary benefit to his client or anyone else. This provision also has no time limit.

Of course, the requestor, as an attorney, is under additional restrictions imposed by the Mississippi Rules of Professional Conduct, which are outside the jurisdiction of this Commission. For advice on those rules, particularly the ones involving former clients and successive government and private employment, the requestor may wish to contact the Mississippi Bar Association.

Scott Rankin
Executive Director