March 8, 1989

FACTS:


You were recently appointed as Chairman of the Massachusetts
Board of Regents (Board). You have also resigned as a partner of
Foley, Hoag & Eliot (Firm) and have become "Of Counsel" to the
Firm.[1] In that capacity, you are a salaried, contractual employee
of the Firm and have forfeited the tenure and benefits which you
previously enjoyed as a partner. As "Of Counsel", you are
ineligible to participate in the Firm's five-member executive
committee or the seven member distribution committee, which make
the major management and financial decisions for the Firm. You are
also ineligible to vote regarding the Firm's hiring decisions,
including whether to accept new partners. Your compensation is
fixed and you are ineligible to receive a share of the Firm's
profits, discretionary distribution bonuses or deferred
compensation. You are nqt eligible for continued membership in the
Firm's Keough plan, and your partnership contribution will be
returned to you following the Firm's calculation of the value of
your former share.

You will retain the location of your current office, which is
located on a floor with partners and associates, and will share
the same access to office support resources which is available to
all Firm partners and associates. The change in your status has
been confirmed internally in the Firm and has been communicated to
the news media. Your name appears on the Firm's letterhead as "Of
Counsel" and you are not held out by the Firm as a partner.

The Firm has altered its accounting practices to insure that you
will receive no portion of any revenue the Firm receives either
from state agencies within the official responsibility of the Board
or from any of the Firm's private educational institution clients
on matters within the official responsibility of the Board. The
Firm has a special payroll account out of which employees, but not
partners, are paid. The payroll account is segregated from the
account into which Firm receipts are paid. You will be paid from
the special payroll account. In addition, all receipts from public
and private institutions on matters within the responsibility of
the Board will be deposited in a

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separate account, further segregated from the general accounts of
the Firm.

The Firm does represent, and has represented, a number of
private educational institutions, including, at various times,
Boston University, Newbury College, Boston College, Berklee College
of Music, Suffolk University, Williams College, Northeastern
University, Harvard University, Curry College, Regis College,
Worcester Polytechnical Institute and the Association of
Independent Colleges and Universities. The Firm also represents the
University of Massachusetts. On occasion, the Firm has represented
other institutions which may have an interest in obtaining degree
granting ,authority from the Board. In addition, one of the Firm
s partners serves as a member of the Board of Trustees of Mass. Bay
Community College (MBCC), an institution within the official
responsibility of the Board.


QUESTION:


Does G.L. c. 268A permit you to serve as Chairman of the Board
and also as "Of Counsel" to the Firm?


ANSWER:


Yes, subject to the conditions set forth below.


DISCUSSION:

1. Jurisdiction


Upon your commencing services as a Board member and chairman,
you became a "state employee" for the purposes of G.L.c. 268A. In
view of the part-time, uncompensated nature of your position, you
are also considered a "special state employee" under G.L. c. 268A,
s.1(o). As a special state employee, you are eligible for certain
exemptions, thereby permitting you more opportunities for outside
dealings with state agencies than would otherwise apply if you were
a full-time state employee.


2. Limitations on Your Private Law Practice

a. Section 4


This section prohibits you from receiving compensation[2] or
acting as agent or attorney for any non-state party in connection
with any decision, contract, or other particular matter[3] in which
you have either participated[4] or have official responsibility[5]
for as a Board member.[6] For example, if the Firm were asked to
represent a private university client in connection with an
accreditation or licensure proceeding from the Board, you could
neither represent the client nor receive compensation from the
client in connection with the representation.

Because the definition of Compensation includes fees received
by you for the services of others in the Firm, you will be required
to segregate your compensation from the fees which the Firm
receives for its representation of clients in Board matters. The
payroll accounting steps which you and the Firm have adopted to
segregate your income appear sufficient to avoid your indirectly
receiving compensation in connection with matters under your
official Board responsibility. See EC-COI-85-21.


b. Section 7


This section generally prohibits a state employee from having
a financial interest in a contract made by a state agency. As a
special state employee, however, you may have a financial interest
in contracts made by a state agency in whose activities you neither
participate nor have official resposibility for as a Board member,
following your submission to the Commission of a disclosure of the
financial interest pursuant to s.7(d). Although your opinion
request does not specify whether you intend to consult to or
represent any state agencies in your private practice, the
exemption conditions, including disclosure, will need to be
observed whenever such opportunities arise for you. The fact that
the Firm may represent state agencies under the Board's
jurisdiction will not place you in violation of s.7 as long as you
have no financial interest in those contracts and refrain from
working for the Firm under those contracts. In this regard, the
Firm's maintenance of its payroll account segregation procedure
will avoid your indirectly receiving fees derived from the Firm's
contracts with state agencies within and outside of the Board
jurisdiction.


3. Limitations on Your Official Activities as a Board Member

a. Section 6


This section, in relevant part, prohibits your official
participation as a Board member in any particular matter in which
either you or the Firm has a financial interest. Included within
the matters requiring your abstention will be all matters in which
the Firm is representing a private or public sector client before
the Board. The abstention requirement will also apply to matters
in which the Firm has a reasonably foreseeable financial interest.
EC-COI-84-96. For example, if the Board is considering a decision
which will generate

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additional legal work for the Firm in its representation
of a public sector institution, s.6 will require your abstention
from that decision.[7] Two limited exemptions to s.6 do not appear
to be relevant, inasmuch as you state that you intend to abstain
from any discussion or vote on Board matters in which the Firm
represents a client. The first, s.6(3), permits your participation
in such matters following the receipt of written permission of your
appointing official. The second, contained in G.L c. 15A s.2,
permits participation by Board members in certain matters affecting
educational institutions with which such members are abated. As
long as you continue to abstain officially from matters involving
the Firm, these exemptions will not come into play.


b. Section 23


As a state employee, you are subject to certain standards of
conduct appearing in G.L.c. 268A, s.23. Specifically, you may not
use your official Board position to secure for yourself or others
unwarranted privileges or exemptions of substantial value, and you
must avoid creating the reasonable appearance of undue favoritism.
Issues under this section could arise in light of the fact that
one of the firm's partners as an unpaid member of the Board of
MBCC, an institution within the Board's official responsibility.
Your intention to abstain from official participation in any matter
in which the partner has participated trustee will avoid your
exercising any actual or apparent favoritism toward MBCC in
violation of s.23. You must also bear in mind the confidentiality
restrictions of s.23(c) and refrain from disclosing to the Firm any
confidential information which you have acquired as a Board member.


4. Limitations on Firm Partners


Prior to your appointment as Board chairman, you were a partner
of the Firm. Were you to retain your partnership while serving on
the Board, your partners would share the restrictions which G.L.c.
268A places on your private law practice. Specifically, s.5(d)
would prohibit your partners from receiving compensation from or
acting as agent or attorney for any non-state client in connection
with any particular matter in which you have participated or which
is within your official responsibility as a Board member.

Based on the information you have provided, we conclude that you
are no longer a partner of the Firm for the purposes of s.5(d)
following your resignation as a partner and your assuming "Of
Counsel" status to the Firm. To be sure, the Commission has
recognized that a change in title does not avoid creating the
appearance of partnership status if an individual retains the
attributes of partnership and is held out by the Firm to be a
partner. See EC-COI-80-43 Because 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. Our conclusion
that no actual or apparent partnership between you and the Firm
exists is based on:

1. your public aunouncements that you were resigriing your
partnership;

2. the appearance of your "Of Counsel" status on the Firm's
letterhead; and

3. the terms of your new arrangement under which you will
forfeit the benefits available to partners, including the sharing
of profits and voting at firm management and financial committee
meetings.

This conclusion is consistent with Commission opinions which have
found other "Of Counsel" arrangements to lack the attributes or
appearance of partnership. See EC-COI-89-7; 86-11. Should your
relationship with the Firm change in any material way during
you tenure as Board Chairman, however, this conclusion will need to be
re-examined in light of those changes.[8]


5. Post-State Employment Limitations


Following the completion of your membership on the Board, you
will be considered a former state employee. Section 5 of G.L. c.
268A places certain limitations on the post-employment activities
of former state employees and their partners. As applied to you,
s.5(a) will prohibit your receipt of compensation from or acting
as agent or attorney for a non-state party in connection with any
particular matter in which you previously participated as a Board
member. Should you return to your partnership status with the Firm
during the one-year period following the completion of your Board
services, the restrictions of s.5(a) will also apply to your
partners during that one-year period. G.L. c. 268A, s.5(c). These
restrictions will not apply, however, if your retain your "Of
Counsel" relationship during the one-year period following the
completion of your Board services.

Aside from s.5(a), you will also be prohibited from appearing
personally before any state court or agency in connection with any
particular matter which was within your official responsibility as
a Board member (whether or not you abstained from participating in


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the matter) during the two-year period prior to the completion of your
Board services. G.L. c. 268A, s.5(b). This prohibition, which
will last for one year following the completion of your Board
services, applies to your oral and written communications, EC-COI-
87-27
, but does not apply to Firm partners or employees.

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

*Pursuant to G. L. c. 268B, s.3(g), the requesting person has
consented to the publication of this opinion with identifying
information.

[1] At the time of your advisory opinion request, you were aware
that if you were to retain your partnership status, Firm partners
would be precluded from representing private clients in connection
with matters within the official responsibility of the Board.
Therefore, you choose to resign as a partner.

[2] "Compensation," any money, thing of value or economic benefit
conferred on or received by any person in return for services
rendered or to be rendered by himself or another. G.L. c. 268A,
s.1(a).

[3] "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. G.L. c. 268A, s.1(k).

[4] "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).

[5] "Official responsibility," the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action. G.L. c. 268A, s.1(i).

[6] If you serve for more than 60 days in any 365-day period, the
s.4 restrictions apply to all matters pending in the Board. For
the purposes of this opinion, the matters within your official
responsibility are co-extensive with matters pending in the Board.

[7] We will presume that the Firm has a financial interest in all
matters in which it represents clients for a fee.

[8] The fact that you may one day apply to return to the Firm as
a partner does not, without more, make you a continuing partner for
G.L. c. 268A purposes during the period of your "Of Counsel"
status. If you were on leave of absence from the partnership and
were granted Firm benefits comparable to partners during your
leave, however, we might be inclined to reach a different result.
Cf. EC-COI-84-86 (status as a state employee continues during a
leave of absence in which an employee retains certain state
employment benefits). We do not reach such a result in your case,
inasmuch as you have resigned from the partnership and have no
right to return to your former status, and you do not receive the
same benefits which are available to Firm partners.

End Of Decision