June 19, 1984

 

All identifying information has been deleted from this opinion as required by Chapter 268B, section 3(g).

 

FACTS:

 

You are employed as an assistant town counsel for the town of ABC.  You are also permitted to maintain an outside practice of law.  In connection with that you share office space with two other attorneys.  You maintain separate files for all of your own cases and clients, and you have your own secretary. You state that you are not formally associated with the other attorneys in any way, nor do you participate in or benefit from their fees, with the following exception.  On occasion you are hired by one of the other attorneys, X, to work on certain of his cases.  When that occurs, you are paid by him on an hourly basis, and any paralegal/secretarial work is performed by his secretaries. You estimate that approximately fifteen percent of your total income is derived from the work you do for X. When you perform such work the letterhead used in connection with the cases is headed "Law Offices of X, (your name) & Y," and your name and the other attorney's name are listed under X's name on the left-hand side of the stationery. On occasion X and the other attorney represent clients before various ABC boards and commissions. You state that you have no involvement at the law offices with any case involving the town of ABC, and in your employment as assistant town counsel you have no involvement with any matter in which the other two attorneys are involved. The town counsel is aware of your office sharing arrangement and assigns any matters in which parties are represented by the law offices to other assistants or to himself.


 

QUESTION:

What limitations does G.L. c. 268A place on you both in your capacity as assistant town counsel and in your private law practice?
 

 

ANSWER:

You are subject to the following limitations.


 

DISCUSSION:

As an assistant town counsel, you are a municipal employee and therefore are .subject to the conflict of interest law, G.L. c. 268A, and in particular §§17, 18, 19 and 23.  Because many city solicitors and town counsels in the commonwealth serve part-time and also engage in the private practice of law, the substantive issues raised by your question are applicable to other municipal attorneys as well.
 

Section 17 provides in pertinent part that a municipal employee may not receive compensation from or act as agent or attorney for anyone other than the city in connection with any particular matter[1] in which the same city is a party or has a direct and substantial interest. This means that you may not be compensated by or act on behalf of any client in connection with any proceeding before any ABC municipal agency [2] or any proceeding in which ABC is a party or has a direct and substantial interest. This prohibition applies to matters that come to you personally as well as to matters on which you work for X. You have stated that you avoid all contact at the law offices with any matter which involves the town of ABC. You therefore would be in compliance with this provision.
 

Section 18(d) prohibits the partners of a municipal employee from acting as agent or attorney for anyone other than the city in connection with any particular matter in which the same city is a party or has a direct and substantial interest, and in which the municipal employee participates or has a participated as a municipal employee or which is the subject of his official responsibility. To advance the purposes of the law, the term "partner" is not restricted to those who enter formal partnership agreements. Thus the Commission has held in previous opinions that a partner is any person who joins with another, formally or informally, in a common business venture. The substance of the relationship is what counts, not the terms the parties use to describe the relationship. Additionally, if a group creates a public appearance of a partnership (for example by linking their names on a letterhead, business cards and business listing), they may be treated as partners even though they may not, in fact, share profits.  See EC-COI-82-68; 82-19; 80-43. [3] See also Formal Opinion 310, ABA Committee on Professional Ethics (June 20, 1963); Massachusetts Bar Association Ethical Opinion 76-19. The substance of your arrangement with X does not constitute a partnership. The occasional payment you receive on an hourly basis from X constitutes a fee for services arrangement rather than a sharing of profits. [4]  You maintain separate files and have your own secretary.  However, the fact that your names are linked in the letterhead title would create the public appearance of a partnership, thereby triggering the prohibitions of §18 (d).  The ability of X and the other attorney to represent clients in matters in which ABC is a party or has an interest might well be severely limited.  In order to prevent this result your name should not be linked with the other two names at the top of the letterhead.  The mere listing of your name under X's in the left-hand side of the stationery would not create the same public appearance of a partnership.  Likewise, if you were to be listed as being "of counsel" the Commission has held in the past that such a listing is not by itself sufficient to create a public appearance of a partnership. See EC-COI-83-81. [5]
 

Section 19 prohibits a municipal employee from participating as such an employee in a particular matter in which to his knowledge he or a business organization in which he is serving as an employee has a financial interest.  Although the law office of X would be considered a business organization your relationship with it does not rise to the status of "employee" sufficient to invoke the participation prohibitions of §19.  This conclusion is based on the comparatively small portion of your income attributable to services which you perform for the law offices. See EC-COI-83-34. However, should your situation change and a more substantial portion of your time and income be attributable to the services you provide to X, then you would be regarded as an employee for the purposes of §19.  You would then be prohibited from taking any action in your capacity as assistant town counsel on any matter in which the law offices had a financial interest.  Obviously you are also prohibited from acting in your municipal job on any matter in which you personally have a financial interest, such as any aspect of one of your own client's cases.  Again, as you have stated that the city solicitor is aware of your office-sharing arrangement and screens you from all matters where the law offices are involved, there is no violation of this section.
 

Section 23 contains general standards of conduct applicable to all state, county and municipal employees.  These provisions address both courses of conduct raising conflict questions as well as the appearance of conflict. Section 23, paragraph 2, prohibits the use or attempted use of one's official position to secure unwarranted privileges or exemptions for himself or others.  It also prohibits one from by his conduct giving reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is unduly affected by the kinship, rank, position or influence of any party or person. Even though you will have no personal involvement in any overlapping matters, the appearance of your name on the law offices' letterhead in any form may put your co-workers in the town counsel's office who are actually handling the matter in an uncomfortable position. Furthermore, the public is unaware of your screening arrangement, and the appearance of your name on the letterhead in connection with overlapping matters might create a negative impression as to the public loyalty of the town counsel's office. Therefore, the wisest course for you to take to avoid problems under §23 would be to see that your name does not appear on any letterhead that is used by the law offices in connection with any matter in which ABC is a party or has a direct and substantial interest.

 

 

DATE AUTHORIZED:  June 19, 1984
 

 



[1] For the purposes of G.L. c. 268A, "particular matter" is defined as 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, §l(k).

[2] For the purposes of G.L. c. 268A, "municipal agency," is defined as any department or office of a city or town government and any council, division, board, bureau, commission, institution, tribunal or other instrumentality thereof or thereunder. G.L. c. 268A, §l(f).

[3] These citations refer to previous Commission conflict of interest opinions including the year they were issued and their identifying numbers. Copies of these and all other advisory opinions {with identifying information deleted) are available for public inspection at the Commission office.

 

[4] Your' situation when you are performing work for X is analogous to that of a law firm associate which the Commission has found in several previous opinions does not trigger the application of §18(d). See EC-COI-83-92; 81-30; 79-57.

[5] Although the appearance of your name on the letterhead either under X's or as being "of counsel" would not trigger the application of §18(d), it would create problems under §23 when the letterhead is used in connection with matters in which ABC is a party or has a direct and substantial interest. The implications of §23 are dealt with more fully in the last paragraph of the opinion.