March 23, 1988
You are considering accepting appointment to the position of Assistant City Solicitor for a City. The City has not designated the position of Assistant City Solicitor as a special municipal employee within the meaning of s.1(n) of G.L. c. 268A. You are also an experienced criminal defense attorney. You indicate that if appointed Assistant City Solicitor, you would not represent any criminal defendant who was charged with the violation of any City ordinance, by-law or code. Furthermore, you state that you would not represent any criminal defendant in those matters in which the City would have a direct and substantial interest in the disposition of the case. For example, where a criminal defendant arrested for disorderly conduct files a civil rights complaint against the arresting officer charging unlawful arrest and
brutality, you recognize that the City would have a direct and substantial interest in the criminal prosecution because its resolution might be dispositive of the potential liability of the police officer and/or the City. You wish to continue, however, representing criminal defendants arrested by the Beverly Police in suppression hearings which are commenced by a motion to suppress statements or evidence. The motion would be based on alleged violations of a defendant's federal or state constitutional rights.
Does G.L. c. 268A, s.17 permit you to represent for pay a criminal defendant arrested by the Beverly Police in connection with a motion to suppress hearing?
Section 17(a) prohibits a municipal employee from receiving compensation from a client in connection with a case or controversy in which the municipality is a party or has a direct and substantial interest. We conclude that the City would have a direct and substantial interest in a motion to suppress evidence obtained by the Beverly Police Department.
A motion to suppress is based on allegations that the police have unlawfully searched and/or seized evidence in violation of the defendant's rights under the Fourth Amendment of the United States Constitution or Article 14 of the Massachusetts Declaration of Rights. Due to the complexity of law in the area of Fourth Amendment and the speed with which the law changes and develops, motions to suppress evidence are a basic element of most criminal defense strategies. Ringel, Searches and Seizures, Arrests and Confessions, s.20.01 (Vol. 2, 1983).
A search and/or seizure of evidence which fails to conform to Fourth Amendment standards gives rise to a claim under the Civil Rights Act, 42 U.S.C. s.1983, and may, in limited circumstances, state a claim against the city which employs the police officer who conducted the search. Monroe v. Pape, 360 U.S. 167(1961).
Schiller v. Strangis, 540 Fed. Supp. 605 (D. Mass. 1982). In those cases which are limited to naming a police officer as a defendant, the municipality has potential monetary responsibility under G.L. c. 258, s.s.12, 13, the commonwealth's indemnification statute.
Criminal defendants and prisoners customarily bring civil rights cases based on the same evidence and allegations applicable to the suppression hearing. In large part, the success of any civil rights case depends on the nature, scope and result of the suppression hearings. The findings of a suppression hearing are admissible in
a subsequent civil rights case. If, for example, the motion to suppress were allowed, the plaintiff can introduce that fact to the jury and argue the value of the finding in his closing. Although in the Federal District Court of Massachusetts a jury is not bound to agree with the conclusion of the motion judge that there had been a civil rights violation, such a finding can be persuasive to a jury. In other jurisdictions, suppression findings may be binding in a subsequent s.1983 case. For example, a denial of a motion to suppress may foreclose a subsequent successful civil rights case as a matter of law, and thereby preclude any potential monetary responsibility or liability of the City. See Cook and Sebieski, Civil Rights Action: The Preclusive Effect of Prior State Court Adjudications, s.3.22 (Vol. 2,1987). In other words, there is the potential that a motion to suppress hearing will lead to a civil rights complaint, and that the result of the motion will be critical or dispositive to the resolution of the complaint.
We do not believe that prior case law is inconsistent with our conclusion that the City has a direct and substantial interest in a suppression hearing. In the case of Commonwealth v. Mello, 11 Mass. App. Cc 70(1980), the Massachusetts Appeals Court held that a criminal defendant did not meet his burden of establishing that he had been denied effective assistance of counsel based on proving a "genuine conflict of interest" or a "tenuous conflict of interest accompanied by a showing of material prejudice." Id. at 71. In dicta in the case the Court interpreted s.17 of the conflict law. The Court held: the language of s.17 requires that the City have a direct and substantial interest in a matter allegedly involved in a conflict of interest. G.L. c. 268A, s.17, as appearing in St. 1962, c. 779, s.1. Whatever interest the City of Taunton had in the prosecution of the defendant for the violation of state law was not separate and distinct from that of citizenry of the Commonwealth as a whole. Criminal prosecution is conducted in the interest of the Commonwealth. The interest of the City was not sufficiently direct to meet the s.17 standard.
Later in the same opinion, however, the Court left open the possibility that in particular types of situations or cases, a city may have a direct and substantial interest in a criminal prosecution. The Court noted, for example, (at 74), that in the case at bar, the testimony of the police was related to "routine police work", thus suggesting the conclusion that where police testimony was more critical in the case, the city may have a direct and substantial interest in the prosecution. Thus, the Appeals Court recognized the possibility that in certain types of situations, a city or town may have a direct and substantial interest in a criminal prosecution or a specific aspect of that prosecution.
We recognize that in practice a successful motion to suppress will not ordinarily result in a civil rights complaint. In EC-COI-88-6, the Commission held that it is the possibility that the "town itself might be subject to litigation as a result of a potentially prohibited action by one of its elected officials" that results in the conclusion that the municipality has a direct and substantial interest in a particular case. As stated in Edgartown v. State Ethics Commission, "the legislature's concern about
conflict between private interests and public duties may reasonably have motivated it to prohibit involvements that might present potential for such conflicts." 391 Mass. 82,89 (1984). The Commission's interpretation precludes any potential conflict before they become a reality in a specific case, and before damage, even unwittingly, has been done. Id.
In conclusion, since the City may incur monetary liability to a police officer whose conduct is successfully challenged in a suppression hearing, and the City itself might be subject to litigation or liability as a result of prohibited activities by one of its officials, the City has a direct and substantial interest in the proceeding. EC-COI-88-6. Therefore, you may not receive pay for representation of a criminal defendant in a motion to suppress hearing if you accepted appointment as an Assistant City Solicitor.
 The limited circumstance, appear to be where a municipality has purposely established a policy or procedure which results in the civil rights violation. This is the so-called official policy or "custom" standard first enunciated in Monnell v. New York, City Dept. of Social Services, 496 U.S. (1978). See also, Oklahoma City
v. Tuttle, 471 U.S. (1985) in which the court found cognizable a cause of action alleging failure by municipal officials to act to correct the pattern of police misconduct evidenced by police raids and illegal searches and seizures, such failure being tantamount to a ratification of this customary practice of the police. The
court noted, however, that the municipal conduct must reflect at least willful or reckless disregard of the necessity of corrective action; mere negligence or deliberate indifference is insufficient to hold liable a municipality failing to provide adequate instructions or guidelines to its employees.
 There are a variety of reasons for this, including but not limited to: the fact that criminal defendants do not make particularly attractive plaintiffs in civil cases, the lack of availability or access to the civil judicial system by criminal defendants, and the need to prove substantial actual damages in order to make a complex civil rights case worth pursuing.
 If the position of Assistant City Solicitor were designated as a special municipal employee within the meaning of G.L c. 268A s.1(n), and the position has no official responsibility for advising the police department in the conduct of its investigations or arrests, you may renew your request for an opinion based on
those facts. See, s.17, paragraph 9 applicable to special municipal employees.
End Of Decision