Conflict of interest – Hardship exception – Architect – Rhode Island Lawyers Weekly

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Where an architect who is a member of the East Greenwich Historic District Commission would like to represent his client before that commission at its next meeting, he qualifies for a hardship exception.

“The Petitioner’s proposed conduct falls squarely within section 5(e)’s prohibition on representing his client before a board of which the Petitioner is a member. However, the Ethics Commission has carved out a specific hardship exception outlined in GCA 2010-1 for ‘Historic Architects Who Are Members of Historic District Commissions.’ This exception is based upon the Ethics Commission’s finding that ‘municipal historic district commissions within the state of Rhode Island are best served if they are able to have a sitting member who specializes in historic architecture and preservation.’ GCA 2010-1. The Ethics Commission has concluded that, given the limited number of historic architects in the state, recruiting qualified persons to serve on historic district commissions would be difficult and would reduce the ability of historic district commissions to effectively function if those architects were thereafter prohibited from representing private clients before the commissions on which they serve.

“However, pursuant to GCA 2010-1, members of historic district commissions may not presume that the exception is applicable to their specific set of circumstances, and are required to seek an advisory opinion each time they consider accepting a client whose project would require them to appear before their own boards. Additionally, GCA 2010-1’s narrow exception applies only to historic architects and does not apply to other architectural specialties. …

“For GCA 2010-1 to apply, the Petitioner must make representations to establish that he is a qualified historic architect. In the present matter, the Petitioner is an architect who specializes in historic preservation and represents that his work experience and education exceed the United States Secretary of the Interior’s minimum professional qualifications for a historic architect. It is significant to note that the Ethics Commission has previously issued five similar advisory opinions to this Petitioner in which hardship exceptions were granted based on Petitioner’s status as a historic architect. …

“Considering all of the above, it is the opinion of the Ethics Commission that the Petitioner qualifies for a hardship exception to the Code of Ethics’ prohibition on representing his client before his own board, in accordance with GCA 2010-1, provided that he recuses from participating in all HDC matters involving his client. Pursuant to section 5(e)(1), and concurrent with his recusal, the Petitioner must inform the HDC and its members of his receipt of the instant advisory opinion and of his recusal in accordance therewith. Notice of recusal shall be filed with the Ethics Commission consistent with section 36-14-6.

“This hardship exception applies beginning on July 25, 2023, the date of this opinion, which will allow the Petitioner to represent his client before the HDC at its August 9, 2023 meeting. Specifically, this hardship exception is not retroactive and does not extend to the Petitioner’s prior representations of this client before the HDC on this matter. Finally, the Ethics Commission reminds the Petitioner that the prohibitions set forth in section 5(e) continue while he is in office and for a period of one year after leaving office. During that time, the Petitioner will be required to seek hardship exceptions from the Ethics Commission each time he plans to represent himself or another person before the HDC. The Petitioner is reminded and cautioned that the proper time to seek a hardship exception from the Ethics Commission is before he commences any representation of himself or others before the HDC on a particular matter.”

Re: McGeorge, Matthew (Lawyers Weekly No. 74-031-23) (Advisory Opinion No. 2023-31) (July 25, 2023).

Click here to read the full text of the opinion.

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