November 9, 1989

FACTS:


You are a member of the General Court and also an attorney.
Outside of your legislative schedule, you are interested in
pursuing the private practice of law as "of counsel" to a large
law firm. The firm either currently or potentially represents
clients before state, county and municipal agencies.


QUESTIONS:


1. How does G.L. c. 268A apply to your activities as an
attorney?

2. How does G.L. c. 268A apply to the activities of other
attorneys in a law firm for which you serve on an "of counsel"
basis?


ANSWERS:


You and the other law firm attorneys will be subject to the
limitations set forth below.

DISCUSSION:

1. Application of G.L c. 268A to You

a. Section 4


As a member of the General Court, you are a state employee for
the purpose of G.L. c. 268A. Section 4 of G.L. c. 268A generally
prohibits state employees from receiving compensation from
relation to any particular matter[1] in which the
Commonwealth or a state agency is a party. For example, s.4
applies to all criminal proceedings in which the Commonwealth is
a party and to all civil matters in which the Commonwealth or a
state agency is a named party or has a direct and substantial
interest. Section 4 also applies to certain proeeedings before
municipal agencies such as special education determinations where
the state extensively regulates the subject area. As a member of
the General Court, however, you are subject to s.4 in the
following limited way:

A member of the General Court shall not be subject to
paragraphs (a) or (c). However, no member of the General Court
shall personally appear for any compensation other than his
legislative salary before any state agency, unless:

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(1) the particular matter before the state agency is
ministerial in nature, or

(2) the appearance is before a court of the Commonwealth, or

(3) the appearance is in a quasi-judicial proceeding.

For the purposes of this paragraph, ministerial functions
include, but are not limited to, the filing or amendment of:
tax returns, applications for permits or licenses,
incorporation papers or other documents. For the purposes of
this paragraph, a proceeding shall be considered quasi-
judicial if:

(1) the action of the state agency is adjudicatory in nature;
and

(2) the action of the state agency is appealable to the
courts; and

(3) both sides are entilled to representation by counsel and
such counsel is neither the attorney general nor the counsel
for the state agency conducting the proceeding.

G.L.c. 268A, s.4(5).

In construing the provisions of s.4 as they apply to members
of the General Court, three points should be noted:

(1) The restrictions of s.4 apply to compensated outside
activity. Uncompensated representational activities, such as
representing constituents in their dealings with government
agencies, are not prohibited under s.4. EC-COI-79-68.

(2) The restrictions of s.4 apply to personal appearances, as
opposed to receiving of compensation in connection with a
matter. In EC-COI-87-27, the Commission concluded that conduct
prosribed under personal appearance included any oral and
written communication intended to influence a governmental
body.

(3) The restrictions of s.4 apply only to certain categories
of matters, depending on the forum of the legislator's
personal appearance, the nature of administrative proceeding
and the degree of discretion which must be exercised in
connection with the matter. Because you have posed your
question in general terms, we cannot provide specific advice
to you. By way of example, however, the Commission has deemed
the following matters to be subject to the s.4 prohibition for
legislators: EC-COl-86-12 (appearance before state parole
board); EC-COI-85-40 (representing client in sale of land to a
state agency); EC-COI-83-59 (representing applicant for a
common carrier license before the state Department of Public
Utilities).

On the other hand, the Commission has held that the
following matters are not subject to the s.4 legislative
restrictions: EC-COI-85-82 (representing client in
adjudicatory proceedings before the state Industrial Accident
Board); EC-COI-82-137 (representing plaintiff in court action
against MBTA); EC-COI-79-86 (filing license or permit
applications on behalf of a client before a state agency).
Once you have identified the specific matters on which you
intend to make a personal appearance, we will provide guidance
to you with respect to those matters.


b. Section 7


If you were to consult for or represent for compensation a
state agency in your private law practice, you would have a
flnacial interest in an employment contract made by a state
agency. Under G.L. c. 268A, s.7, a state employee is prohibited
from having a financial interest in a contract made by any state
agency, unless an exemption applies. As a member of the General
Court, you are eligible for an exemption under G.L. c. 268A,
s.7(paragraph c).[2] The s.7(paragraph c) exemption is
restricted, however, to certain contracts in which the
legislator's proprietary interests in the contracting corporation
do not exceed 10% of the total proprietary interests therein, and
which are awarded through competitive bidding. While s.7(c)
would appear to be appropriate for permitting minority
shareholder legislators to have a financial interest in contracts
for the sale of goods by their companies to a state agency, the
exemption does not appear to extend to personal service contracts
with state agencies. See, EC-COI-84-108.

Further, you will need to establish safeguards with the firm
to insure that your firm compensation as "of counsel" is not
atributable to contracts which the firm has with any state
agency. EC-COI-85-9; 89-5.


c. Section 23


You also ask how G.L. c. 268A applies to your

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announcement of your relationship with the law firm. Under G.L.
c. 268A, s.23(b)(2), you may not use your legislative position to
secure for yourself or others any unwarranted privilege or
exemption of substantial value. For example, you may not use
resources provided to you as a legislator such as word processors
and legislative support staff to conduct your private law firm
activities. EC-COI-85-29. Additionally, you should not use
legislative resources to announce your relationship to the firm.
By issuing a legislative press statement announcing your
relationship with the firm you may risk creating the appearance
that your practice of law is a governmentally endorsed or
supported activity. See, EC-COI-84-127; In the Matter of Byron
Battle
, Public Enforcement Letter 89-4; In the Matter of
Elizabeth Buckley
, 1983 SEC 157. We therefore recommend that you
arrange for your announcement to be made on law firm stationery,
rather than through an official legislative press statement. We
see no violation of s.23 in your firm's announcing accurately
your status as a member of the General Court.


2. Application of G.L. c. 268A to Law Firm Attorneys


For the purposes of this opinion, we will assume that, in your
capacity as "of counsel" to the firm, you will not be a partner
for G.L. c. 268A purposes. You should be aware that we recenlly
stated in EC-COI-89-5, "[b]ecause arrangements such as "Of
Counsel" do not have a uniformly accepted meaning among law
firms, the Commission will examine the substance of the
relationship between an attorney and a firm to determine whether
the appearance of a partnership exists. See, EC-COI-83-81; 82-
68." EC-COI-89-5.
The Commission conclusion will rest on such
factors as the terms of public announcements, the appearance and
designation of an attorney's name on the firm's letterhead, and
the terms of the "of counsel" arrangement with the firm. As long
as you do not have "partners" in the firm by virtue of your
nation with the firm, the partners will not be subject to the
restrictions of G.L. c. 268A, s.5(d). Under s.5(d), your partners
are prohibited from representing clients in particular matters in
which you either participate or which are within your official
responsibility as a member of the General Court.

To the extent that G.L.c. 268A, s.4 prohibits you from
engaging in certain personal appearances, the restrictions of s.4
do not apply to other firm attorneys. In EC-COI-85-40, the
Commission advised a legislator that

"... [t]he relevant restrictions of s.4 apply only
to your compensated personal appearances before state
agencies, and not to appearances by your employees. The
limitation of the s.4 legislator restrictions reflects a
concern over potential influence which the legislator could
exercise in face-to-face dealings with state agencies over
which the legislator has budgetary and legislative power. The
potential for such influence is diminished, however, when an
employee of the legislator, as opposed to the legislator
himself, makes a personal appearance, and the statutory scheme
under s.4 does not extend the legislator prohibitions to
others. Therefore, your associate's paid representation of
your client would not place you in violation of s.4.

EC-COI-85-40, p. 3.

The same result would apply to firm attorneys, irrespective of
your status within the firm.[3]

---------------

[1] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organntations, powers, duties, finances and
property.

[2] The prohiiition of s.7 does not apply "(c) to the interest of
a member of the general court in a contract made by an agency
other than the general court or either branch thereof, If his
direct and indirect interests and those of his immediate family
in the corporation or other commercial entity with which the
contract is made do not in the aggregate amount to ten percent of
the total propriety interests therein, and the contract is made
through competitive bidding and he files with the state ethics
commission a statement making full disclosure of his interest and
the interests of his immediate famliy..."

[3] We note that none of the restrictions discussed in this
opinion are affected by the geographic location of clients of the
firm.

End Of Decision