| Date: | 01/10/1979 |
|---|---|
| Organization: | State Ethics Commission |
A former Assistant District Attorney now engaged in private practice is not prohibited by §5(a) from accepting an appointment to prosecute a case pending in his former office, since he will be compensated by the Commonwealth itself.
You are a former Assistant District Attorney now engaged in the private practice of law and have requested an opinion whether you may accept an appointment as a Special Assistant District Attorney without violating the conflict of interest law, G.L. c. 268A. On the facts presented, we find no conflict.
In 1978, you left your position as Assistant District Attorney. Thus, you are now a former state employee for purposes of the conflict of interest law.[1] Subsequent to your departure, the District Attorney requested that you be appointed as a Special Assistant District Attorney to prosecute a particularly complex case which you had handled as an Assistant District Attorney. If you were so appointed, you would be compensated at the rate of $30 per hour. Your concerns stem from the fact that the law firm currently employing you is engaged in criminal defense work within the Commonwealth.
Two sections of G.L. c. 268A are relevant to your inquiry, § 4 and 5. We consider § 5 first. Section 5(a) prohibits a former state employee from acting as agent or attorney for or receiving compensation directly or indirectly from anyone other than the commonwealth or a state agency in connection with any particular matter in which the commonwealth or agency is a party. . . and in which he participated as a state employee while so employed . . . .(emphasis added)Prosecuting a criminal case for the Commonwealth is plainly "participation" in a "particular matter," as those terms are defined in the conflict statute. See G.L. c. 268A, § 1(j) ("participate") and 1(k) ("particular matter"). Nevertheless, as a Special Assistant District Attorney, you would be acting as attorney for, and receiving compensation from the Commonwealth itself. Accordingly, your proposed appointment does not fall within the proscription of § 5(a).[2]
General Laws, c. 268A, § 5(c) and (d) are also pertinent to you. Those provisions impose certain restrictions on the activities of partners of former and present state employees, respectively. With apparently one exception, none of the Attorney General issuing conflict of interest opinions under G.L. c. 268A have interpreted § 5(c) and (d) to apply to the partners of a law firm which employs a former or present state employee as an associate. See Conf. Op. Atty. Gen. No. 819 at 6 and n.2 and opinions cited. The State Ethics Commission has not yet had an opportunity to study the provisions of § 5(c) and (d) and to reach its own conclusions on the scope of those sections. Accordingly, we continue for the present to follow the views set forth in Conf. Op. Atty. Gen. No.819 and conclude that neither § 5(c) nor (d) applies to the partners of the law firm at which you are employed as an associate.[3]
Turning to G.L. c. 268A, § 4, that section prohibits certain activities of present full-time and special state employees. If you accept an appointment as a Special Assistant District Attorney you would be a "special state employee." See G.L. c. 268A, § 1(o). As such, you would be prohibited by c. 268A, § 4, €6 from receiving compensation from or acting as an attorney for anyone other than the Commonwealth or a state agency in relation to a "particular matter" which (a) you participate in as a Special Assistant District Attorney, (b) is within the office of the District Attorney while you are prosecuting the matters for which you are designated a Special Assistant District Attorney.
You have not presented us with any details about the cases or other legal matters you are handling as a private attorney, and thus we cannot apply the provisions of c. 268A, § 4, €6, to a specific factual situation.[4] Nevertheless, you should be aware of that provision.
To summarize our conclusions, your former position as an Assistant District Attorney does not preclude your accepting an appointment as a special Assistant District Attorney to handle a case pending in that district. Since you are an associate in a private law firm, the proscriptions of G.L. c. 268A, § 5(c) and (d) do not apply to the partners of that firm with respect to your activities as a former or Special Assistant District Attorney.
Finally, if you become a Special Assistant Attorney, c. 268, § 4, €6, would impose certain limitations on your private legal work. Without additional facts, however, we cannot determine the application of that paragraph to you.
End Of Decision
