March 23, 1988

FACTS:


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.


QUESTION:


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?


ANSWER:

No.


DISCUSSION:

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

Page 193

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.[1] 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 succes ful civil rights case
as a matter of law, and thereby preclude any potential monetary
responsibility or liability of the City. See Cook and Sebiesk i,
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 Conmmonwealth 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 sufficientiy 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.[2] 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 Commissi
on, "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 ofa criminal defendant in a motion to suppress
hearing if you accepted appointment as an Assistant City
Solicitor.[3]

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Page 194

[1] 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.

[2] 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 judaical system by criminal
defendants, and the need to prove substantial actual damages in
order to make a complex civil rights case worth pursuing.

[3] If the position of Assistant City Solititor 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