The purpose of this Advisory [1] is to explain how the provisions of G.L. c. 268A apply to attorneys who are called upon to represent both the municipality and the municipal employee in civil rights and other lawsuits based upon the employee's official acts.


The starting point is G.L. c. 268A, § 17(c) which prohibits a municipal attorney such as a city solicitor or town counsel from representing anyone other than the municipality in connection with a lawsuit in which the municipality is a party or has a direct and substantial interest. Exempted from this prohibition is representation "in the proper discharge of the [municipal attorney's] official duties."


I. BACKGROUND


In 1982, the Commission ruled that a municipal attorney would violate § 17(c) by representing both a municipality and private party in the same lawsuit, irrespective of the similarity of the interests. See, EC-COI-82-46. The Commission noted that the proper discharge of the attorney's municipal duties did not include also representing private parties. The Supreme Judicial Court affirmed the Commission's ruling in 1984. See, Town of Edgartown v. State Ethics Commission, 391 Mass. 82 (1984). In light of the Edgartown decision, the Commission has received a number of inquiries from municipal attorneys raising two distinct questions:
 

  • Does G.L. c. 268A, § 17 permit a municipal attorney to represent both the municipality and municipal employee in defense of a civil rights action where the complaint alleges liability solely in the employee's official capacity?
  • Does G.L. c. 268A, § 17 permit a municipal attorney to represent the municipality and municipal employee in defense of a civil rights action where the complaint alleges liability in the employee's individual capacity as well as official capacity?


In both cases, G.L. c. 268A, § 17 will generally not preclude such multiple representation, although restrictions under the Rules of Professional Conduct may apply.


II. LAWSUITS BASED ON EMPLOYEES' OFFICIAL ACTS


For the purposes of G.L. c. 268A, § 17, it is appropriate for a municipal attorney to defend a municipal employee in a lawsuit based upon the employee's official acts. The authority for such representation derives from the municipal charter, ordinance, or by-law which establishes the powers and responsibilities of the municipal attorney. [2]


The municipal attorney's obligation to defend the municipality in legal actions necessarily carries with it the authority to represent the employees whose official acts are the basis of the legal action. Dunton v. County of Suffolk, 729 F.2d 903, 907 (2nd Cir., 1984) ["municipalities commonly provide counsel for their employees and themselves when both municipality and employee are sued."] The representation of municipal employees is therefore within the "proper discharge of the [attorney's] official duties" as long as the municipal attorney's appointing official is aware of and has authorized the attorney's representation. See, EC-COI-83-20.


This is not to say that the authority can be appropriately exercised in every case. For example, where the interests of the municipality and municipal employee are adverse, the representation, even if authorized, is prohibited under Rule 1.7 Conflict of Interest: General Rule of the Massachusetts Rules of Professional Conduct, S.J.C. Rule 3:07. Dunton v. County of Suffolk, supra suggesting that the competing interests may frequently require disqualification; Martyn v. Donlin, 148 Conn. 27 (1961); Massachusetts Bar Association Ethics Committee Informal Opinion, 80-2. Further, even assuming that disqualification is not mandated, the municipal attorney may decline representation of the municipal employee where there is a perceived conflict of interest. Filippone v. Mayor of Newton, 392 Mass. 622 (1984).


Section 17, however, does not require disqualification. What § 17 says is that, given sufficient authorization, the proper discharge of a municipal attorney's duties can extend to representing a municipal employee in a lawsuit based upon the employee's official acts.


III. LAWSUITS BASED ON EMPLOYEES' OFFICIAL AND INDIVIDUAL ACTS


The application of § 17 does not differ when a municipal attorney represents a municipal employee who has been sued in both the employee's official and individual capacity. At the outset, G.L. c. 268A, § 17 does not deal satisfactorily with the question of representation in an employee's official and individual capacity. G.L. c. 268A, § 17 was drafted prior to the passage of recent civil rights statutes, the passage of indemnification statutes covering municipal employees (G.L. c. 258) and the Supreme Court decision in Monnell v. Department of Social Services, 436 U.S. 658 (1978) which found that municipalities could be held liable under 41 U.S.C. 1983 for employee's actions taken pursuant to municipal policy.


Although the representation of an employee solely in the employee's private capacity is proscribed by § 17, [3]  see Town of Edgartown, supra, the propriety of representation in both the employee's official and individual capacity has not been previously addressed by the Commission. As a matter of sound policy, the Commission concludes that the proper discharge of a municipal attorney's duties can also reasonably extend to representing a municipal employee in the employee's official and individual capacity, provided that appropriate authorization has been given by the attorney's appointing official. [4]


CONCLUSION


The primary concern of § 17 is that the interests of the municipality may potentially be diminished by competing private loyalties. Town of Edgartown, supra. However, the primary concern raised by the representation of municipal employees at issue is not that the interests of the municipality may be diminished, but rather that the employee may not receive adequate representation in view of the attorney's presumed loyalty to the municipality. The adequacy of an employee's representation is a matter more appropriately addressed by the Rules of Professional Conduct and by the trial judge on a case-by-case basis. Dunton v. County of Suffolk, supra; Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984); Shadid v. Jackson, 521 F. Supp. 87 (E.D. Tex. 1981); EC-COI-84-39.


The Commission's conclusion is also based on practical considerations that are consistent with the Commission's obligation to give G.L. c. 268A a workable meaning, Graham v. McGrail, 370 Mass. 133, 140 (1976). To mandate the municipality to provide separate representation in all cases where municipal employees have been sued in both their official and individual capacity would create a financial hardship on the municipality, and would result in an inefficient use of municipal attorneys. Further, the application of § 17 should not depend on the strategic decision of whether the plaintiff has named a municipal employee in his or her individual as well as official capacity for liability purposes.


For the purposes of § 17, the propriety of the attorney's representation should rest initially with the attorney's appointing official, who is in a position to determine whether the interests of the municipality will be preserved by authorizing the additional representation. Such representation is, of course, subject to the restrictions of the Rules of Professional Conduct which may require separate representation on a case-by-case basis.


DATE AUTHORIZED: September 25, 1984

REVISED: January, 2004

 


 

[1] The Commission issues Advisories periodically to interpret various provision of the conflict of interest law. Advisories respond to issues that may arise in the context of a particular advisory opinion or enforcement action but which have the potential for broad application. It is important to keep in mind that this advisory is general in nature and is not an exhaustive review of the conflict law. For specific questions, public officials and employees should contact their agency counsel or the Legal Division of the State Ethics Commission at (617) 371-9500. Copies of all Advisories are available from the Commission office or online at www.mass.gov/ethics.

[2] The position of municipal attorney is not defined within the General Laws but rather has developed according to the legal service needs of each municipality. Randall and Franklin, Municipal Law and Practice, c. 10, § 227. On the state level, the authority of the Attorney General to represent state employees in defense of their official acts is well-established. See, G.L. c. 12, § 3.

[3] For example, the Commission has ruled that a municipal attorney may not privately represent a municipal employee in defense of an enforcement action by the Commission, since the town will inevitably have a direct and substantial interest in the outcome of the Commission proceedings.

[4] In EC-COI-92-10, the Commission also ruled that a municipality may, through the adoption of a by-law, permit a special town counsel simultaneously to represent private parties who are not municipal employees in connection with matters in which the municipality is also a party or has a direct and substantial interest, notwithstanding the restrictions of G.L. c. 268A, § 17, and Town of Edgartown v. State Ethics Commission, 391 Mass. 83 (1984). The by-law would make the arrangement "as provided by law for the proper discharge of official duties" within the meaning of § 17.