September 12, 1990

FACTS:

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You are the General Counsel to the State Department of
Environmental Protection (DEP). Together with the Boston Bar
Association, DEP has developed a proposal which would authorize the
training and use of volunteer private sector environmental lawyers
to assist DEP in reducing its backlog of adjudicatory hearing
cases. Under the initial phase of the pilot project, DEP will
assign volunteer lawyers to serve as mediators to facilitate either
the settling of cases or the framing and narrowing of those issues
which will subsequently be adjudicated. If the program is
successful, DEP may seek expansion of the volunteer attorney
program to include law clerk or special master services for DEP.

On behalf of both DEP and attorneys who are interested in the
volunteer program, you seek formal guidance as to the application
of G.L. c. 268A to volunteer attorneys.


QUESTION:


Does G.L. c. 268A allow private attorneys to serve un a
volunteer capacity for the DEP pursuant to the proposed DEP/BBA
pilot program?


ANSWER:

Yes, subject to the limitations discussed below.


DISCUSSION:

1. Jurisdiction


An attorney who performs mediation services for DEP is
considered a "state employee" under G.L. c. 268A, s.1(q) during the
period in which those services are performed. This jurisdictional
status under G.L. c. 268A applies to uncompensated, as well as to
compensated service to any state agency. Id.

An attorney who performs services to DEP on a voluntary basis
is also considered a "special state employee" under G.L. c. 268A,
s.1(o). A special state employee is exempt from many of the
restrictions which G.L. c. 268A imposes on the private outside
activities of full-time state employees.


2. Limitations on outside activities of volunteer attorneys


Section 4 of G.L. c. 268A limits certain outside activities
of special state employees to DEP, depending on the employees' time
commitment to DEP.


(a) Volunteers who serve for 60 days or less in any 365 day
period


Under G.L. c. 268A, s.4, a special state employee who serves
DEP for 60 days or less in any 365 day period is prohibited from
acting as attorney for or receiving compensation from any non-state
party in connection with any administrative proceeding, controversy
or other particular matter[1] in which the employee
participates,[2] or has official responsibility for as a special
state employee. For example, if a volunteer attorney is assigned
by DEP to mediate a permit dispute, the attorney is prohibited by
s.4 from representing a private client un connection with the same
dispute. On the other hand s.4 does not prohibit the attorney from
representing clients in connection with other matters pending in
DEP.


(b) Volunteers who serve for more than 60 days in any 365 day
period


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Under G.L. c. 268A, s.4, a special state employee to DEP who
serves in that capacity for more than 60 days in any 365-day period
is prohibited from privately representing a client in connection
with any matter pending within DEP, irrespective of whether the
employee has participated in or had responsibility for the matter
as a volunteer lawyer. Under established Ethics Commission and
Attorney General precedent, an attorney who serves DEP on any part
of a day is considered to have served for a "day" in calculating
the 60-day period under s.4. EC-COI-80-31. Conversely, a day is not
counted for the purposes of the 60-day limit unless services are
actually performed, EC-COI-85-49. Because the application of s.4
turns on the calculation of the 60-day period, volunteer attorneys
must keep accurate records of their daily services for DEP.


3. Limitations on official activities of volunteer attorneys


Volunteer attorneys are also subject to certain limitations
on their official DEP activities. Under G.L. c. 268A s.6, a
volunteer attorney must abstain from participating for DEP in any
matter in which the attorney's law firm has a financial interest.
The abstention requirements will apply to participation in any
matter in which the attorney's finn appears. EC-COI-89-5. To avoid
any potential s.6 difficulties, DEP should ascertain, prior to
assignment, whether the pending matter is one which would have a
financial effect on the volunteer attorney's firm. Following
receipt of information disclosing a financial interest under
s.6(3), the DEP official responsible for hiring volunteer attorneys
may exercise several options, one of which would be to grant
written permission to the attorney to participate following a
written determination under the standards of s.6(3). Further,
should a volunteer attorney be assigned a matter which, by virtue
of the attorney's prior relationship with the parties, creates an
appearance that the attorney will unduly favor one side, the
attorney should disclose this relationship to DEP. G.L. c. 268A,
s.23(b)(3). Volunteer attorneys must also observe the safeguards
of G.L. c. 268A, s.23(c) and refrain from disclosing any
confidential information which they have acquired as DEP
volunteers.


4. Limitations on partners of volunteer attorneys


The partners of a volunteer attorney are also subject to
certain limitations on their private practice. Under G.L. c. 268A,
s.5(d), a partner of a state employee is prohibited from
representing a private client in connection with the same
particular matter in which the volunteer attorney participates in
or has official responsibility for as a DEP volunteer attorney. For
example, if a volunteer attorney is assigned to mediate a permit
dispute, the partners of the attorney may not represent private
clients in connection with the same dispute. Aside from those
matters in which a volunteer attorney participates or has official
responsibility for at DEP, a partner may represent clients in other
matters before DEP.


5. Post-employment restrictions on volunteer attorneys


Upon the completion of services for DEP, a volunteer attorney
will be considered a former state employee and will be subject to
three restrictions under G.L. c. 268A.

G.L. c. 268A, s.5(a) and (c), permanently prohibit a former
volunteer attorney, and for one year the attorney's partners, from
representing private clients in connection with the same matters
in which the attorney previously participated as a DEP volunteer
attorney. For example, if a volunteer attorney mediated without
success a permit dispute for DEP, the attorney is permanently
prohibited from representing a private client in connection with
the appeal of the DEP adjudicatory decision in that same dispute.
The attorney's partners will share this restriction for a one year
period following the completion of services for DEP by a volunteer
attorney.

G.L. c. 268A, s.5(e) establishes a one-year bar on a former
volunteer attorney acting as a legislative agent[3] on behalf of
a private client before DEP. The restriction on acting as
legislative agent includes activities to persuade DEP officials to
take specific legislative action through either direct
communication to those officials or by the solicitation of others
to engage in such efforts. In the Matter of Cornelius Foley, 1984
SEC 1982. In addition, the G.L. c. 268A, s.23(c) prohibition on
disclosing confidential information continues to apply to former
DEP volunteers.[4]


6. Additional Limitations


Aside from the substantive restrictions of G.L. c. 268A
discussed above, DEP is authorized by G.L. c. 268A s.23(e) to
establish additional standards of conduct on volunteer attorneys.
These standards, which would be enforced by DEP, rather than the
Commission, could address these potential conflict

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issues which DEP and the BBA believe G.L. c. 268A does not
sufficiently address.[5]

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

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

[2] "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)).

[3] "Legislative agent" means any person who for compensation
or reward does any act to promote, oppose or influence legislation,
or to promote, oppose or influence the governor's approval or veto
thereof or to influence the decision of any member of the executive
branch where such decision concerns legislation or the adoption,
defeat, or postponement of a standard, rate, rule of regulation
pursuant thereto. The term shall include persons who, as any part
of their regular and usual employment and not simply incidental
thereof, attempt to promote, oppose or influence legislation or the
governor's approval or veto thereof, whether or not any
compensation in addition to the salary for such employment is
received for such services. G.L. c. 268B, s.1(k).

[4] A potential supplementary restriction concerning matters
under the volunteer's official responsibility, contained in s.5(b),
is not relevant because any matter within the volunteer's official
responsibility would also be a matter in which the volunteer
participated for s.5(a) purposes.

[5] For example, limitations addressing the contemporaneous
private appearance in a wetlands case by a mediator assigned to a
wetlands case could be the subject of an additional standard of
conduct under s.23(e). EC-COI-85-12.

End Of Decision