January 16, 1991

FACTS:

Page 333


You are presently an attorney in private practice. Your
question concerns your status as a former state employee.
Specifically, you wish to know whether you may now represent a
couple pro bono in legal proceedings which will involve your former
state agency. You were an attorney for the Department of Social
Services (DSS) until 1986. Your duties included representing DSS
in trials under Care and Protection Petitions, G.L. c. 119 and
Adoption Petitions, G.L. c. 210. One case you handled for DSS
between 1984 and 1986 was a Care and Protection Petition in the ABC
County Juvenile Court concerning infant minor children. The
children were placed in the DSS foster home of Jane Doe from 1981
through 1983 when the children were returned to their biological
parents. In mid-1984, the children were placed by DSS in the foster
home of XYZ. During this period, you participated as an attorney
on DSS' litigation to place the children under that agency's Care
and Protection. After your departure from DSS, DSS began a petition
to terminate biological parents' rights (Chapter 210 proceedings)
in the ABC County Probate Court. The court decree terminating the
rights of the biological parents was entered around December, 1989.
The children, in the meantime, had been living in the XYZ foster
home. Due to allegations of sexual abuse, the children were removed
from the XYZ home in early 1989 and were placed in a specialized
foster home for one year. The children are now residing in their
third DSS foster home placement since their removal from the XYZ
home.

Jane Doe and her husband wish to adopt the minor children.
Mrs. Doe has been advised by DSS that she and her husband would not
be considered an adoptive resource for the children and, because
they are not their current foster parents, they have no right to
a DSS administrative hearing. You have researched the legal issues
raised by Mrs. Doe and you believe that she and her husband have
standing to file a guardianship and/or adoption petition for the
children in the ABC County Probate Court. You state that the Doe's
proposed legal action would not use the DSS record prior to
December, 1989. Rather, your argument would be as follows: (1) the
children are now 8 years old and are legally free for adoption; (2)
DSS has no adoption plan in place as required by DSS regulations
and the issue is what placement will best serve the children's
interests; and (3) Mr. and Mrs. Doe should be considered as
potential adoptive parents because of their specialized skills in
dealing with special needs children. In particular, you note that
Mrs. Doe has, over the years, had many dozens of foster children
in her home. In addition to her own natural children, she has
adopted some of the foster children. She has been accorded special
recognition for her efforts as an outstanding foster parent. You
state that Mr. and Mrs. Doe's guardianship and/or adoption action
will not involve any prior legal action in which you participated
as DSS counsel and all legal issues relating to the children's care
and protection as well as the termination of parental rights were
resolved as of December, 1989.


QUESTION:

You wish to know whether the conflict law, G.L. c. 268A,
s.5(a), permit you now to represent Mr. and Mrs. Doe.


ANSWER:


Yes, subject to s.s.5 and 23, as discussed below.


DISCUSSION:


Section 5(a)


As a former employee of DSS, you are considered a former state
employee for the purposes of G.L. c. 268A, s.5. Since you
terminated your state employment more than one year ago, you are
subject only to s.5(a). Section 5(a) prohibits a former state
employee from acting as an agent or attorney for, or receiving
compensation directly or indirectly, from anyone other than the
Commonwealth or a state agency, in connection with any particular
matter[1] in which the state or state agency[2] is a party or has
a direct and substantial interest and in which you participated[3]
as a state employee. A particular matter includes "any judicial or
other proceeding ... request for a ruling or other determination,
contract, claim, controversy ... decision, determination, [or]
finding ... " See, s.1(k). Thus, s.5(a) would permanently prohibit
you from representing a private client in connection with a
particular matter in which you participated as a DSS employee. The
question is whether your proposed representation of Mr. and Mrs.
Doe in the ABC County Probate Court is either the same particular
matter or is in connection with a particular matter in which you
participated as a DSS employee. Based upon the facts presented by
you, we conclude that it is not.

The Commission has previously determined that a former state
employee's proposed private activity which is closely connected to
a matter in which he previously participated, is precluded under
s.5(a). The Commission has considered whether a particular matter
is the same matter by evaluating whether the matter involves the
same parties, the same litigation, the same issues or the same
controversy. See, EC-COI-80-108 (private representation of clients
prohibited where underlying claims are integrally related to or
identical to claims in which state employee participated); 81-28
(former state employee who participated in lawsuit on validity of
a law was precluded from representing private party in a different
judicial proceeding because it would involve same controversy as
litigation in which he officially participated - same parties, same
statute, and same legal challenge on the validity of a statute);
83-140 (former state employee who helped to establish a trust is
prohibited from performing legal work for the trust where

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the state has a continuing interest in monitoring the trust); 84-
31 (former state employee who officially reviewed initial
application of private entity is prohibited from representing that
entity in a resubmission of the application where it involves the
same controversy as the first application); 87-34 (former state
employee may not challenge policy or validity of draft regulations
which he helped to promulgate); 89-7 ( former state employee's
participation in an environmental impact review process precludes
his private representation of the applicant in latter stages of
that process because it involves the same controversy).

On the other hand, s.5(a) does not apply to particular matters
which are not in connection with particular matters in which a
state employee previously participated. See, EC-COI-86-16 (under
s.17, municipal attorney may act as an attorney for his municipal
employer in one lawsuit and as an attorney on behalf of private
parties because town's lawsuit and several other lawsuits were
considered separate particular matters even when, for reasons of
judicial economy, they were combined by a court clerk into one
docket number which required one appellate brief); 86-23 (former
state employee could represent clients in a private transaction
under the terms of an escrow agreement because his representation
was not subject to state review or approval although he had
previously negotiated the agreement); 88-11 (former state
employee's proposed activities not in connection with matters in
which he participated or which were under his official
responsibility). See also, EC-COI-84-21 (a construction project
with distinct phases is not considered one particular matter); 84-
15; 84-14
(under s.18, a parallel to s.5, each property assessment
by a town is generally considered a different particular matter
although the same parcel involved).

We conclude, based on the information you have presented, that
your current legal representation of Mr. and Mrs. Doe in a
guardianship and/or adoption petition in the Probate Court is not
precluded by s.5(a) as long as the litigation is not in connection
with the DSS lawsuit in which you participated. This conclusion is
premised on the fact that the Doe lawsuit: (i) is a new particular
matter arising subsequent to your departure from DSS; and (ii) it
involves different parties, different facts and a different
controversy in a different court than the c. 119 Care and
Protection litigation in which you participated from 1984 to 1986.
EC-COI-86-16. We also conclude that, although the children are part
of the current litigation as well as the past litigation, this in
and of itself is not sufficient to deem the Doe's lawsuit "in
connection with" the c. 119 Care and Protection proceeding in which
you participated.[4]

DSS' primary mandate when a child comes into its care and
custody is to provide substitute care so that the child may be
reunited with the biological parents. See, G.L. c. 119, s.1. 110
CMR 1.02(4); 1.03. If unification is not possible, the
responsibility of DSS changes and the agency must find a permanent
new home for the child in a timely fashion. 110 CMR 1.03. According
to the facts you present, you did not participate as a DSS attorney
in the determination to place the children with Mrs. Doe between
1981 and 1983, or to return the children to their biological
parents between 1983 and mid-1984. Your participation in the Care
and Protection litigation between 1984 and 1986 was in furtherance
of DSS' initial responsibility to transfer temporary custody to DSS
to provide substitute care and to assist the family in
reunification.

The legal issues in the present controversy differ
significantly from the 1986 Care and Protection proceeding. In
1989, the c. 210 petition to dispense with the parents' consent
with adoption was granted and the biological parents' parents
rights were permanently terminated. When the petition was granted,
DSS' primary responsibility became the development of an alternate
permanent home. At issue in the proposed litigation is whether Mr.
and Mrs. Doe should be considered as a potential adoptive resource
for the children since DSS has no adoption plan in place for the
children. This litigation does not involve the fitness of the
biological parents or the return of the children to the biological
parents. Moreover, you did not participate in the c. 210 petition
or in any adoption plan for the children as a DSS attorney.
Accordingly, the proposed litigation does not relate to any
particular matter in which you previously participated.[5]

We note that we might reach a different conclusion if, for
instance, you now wish to represent the children's biological
parents in litigation challenging or modifying the c. 210 court
decree. Such a lawsuit would be subject to s.5(a) if it raised
issues concerning parental fitness issues which were the subject
of the c. 119 proceeding in which you participated as a DSS
employee.

You should also be aware that you remain subject to s.23(c).
Section 23(c) prohibits a present or former state, county or
municipal employee or officer from knowingly or with reason to
know: (1) accepting employment or engaging in business or
professional activity which will require him to disclose
confidential information which he gained from his official position
or authority; (2) improperly disclosing material or data which is
exempt from the definition of a public record[6] and which was
acquired in the course of his official duties. Accordingly, you
may not use information in the Doe's litigation which is
confidential and was learned by you while you were employed at DSS.
See, EC-COI-90-11.[7]

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

[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 organizations, powers, duties, finances and
property.

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G.L. c. 268A, s.1(k).

[2] "State agency," any department of a state government
including the executive, legislative or judicial, and all councils
thereof and thereunder, and any division, board, bureau,
commission, institution, tribunal or other instrumentality within
such department and any independent state authority, district,
commission, instrumentality or agency, but not an agency of a
county, city or town. G.L. c. 268A, s.1(p).

[3] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise. G.L. c. 268A, s.1(j).

[4] We decline to construe the initial DSS determination
concerning the children as a continuing particular matter. Such an
analysis would be overbroad under the fact of this opinion. This
conclusion may not, however, apply to all DSS proceedings. Where,
for example, under the broad equity powers accorded the court,
proceedings under c. 119 and c. 210 are combined, these standards
may not apply.

[5] While we express no view as to the wisdom of your proposed
representation of Mr. and Mrs. Doe in this matter and
notwithstanding your statements to the contrary, you should be
aware that the prohibitions of s.5(a) may well be implicated should
the Doe's case involve matters in the DSS record prior to 1989 and
which are in connection with the Care and Protection action in
which you participated as a state employee.

[6] M.G.L. c. 4, s.7.

[7] This opinion is limited to an interpretation of G.L. c.
268A to your facts. You are advised to consult with the Board of
Bar Overseers or Massachusetts Bar Association regarding the
application of the Code of Professional Responsibility to your
circumstances. We also note that a motion to disqualify you as
counsel because of a conflict of interest can and may be raised in
court by DSS upon examination of the facts in a judicial
proceeding.

End Of Decision