| Date: | 03/13/1979 |
|---|---|
| Organization: | State Ethics Commission |
A former state employee, now engaged in the private practice of law, is precluded by §§ 5(a) and 5(b) from representing defendants in connection with those "particular matters" in which he actually "participated" or in any case under his "official responsibility" for the two years prior to the termination of his state employment.
You were an Assistant District Attorney in a County from 1971 to 1979, and you served as Second Assistant from 1977. You are now engaged in the private practice of law, including the representation of defendants in criminal cases. You state that you would not represent any client in the County if the case was pending in the District Attorney's Office during the period of your employment and if you had participated in any way in the investigation or prosecution of that case. You, therefore, ask whether you would violate General Laws Chapter 268A, the conflict of interest law, by representing,
(a) defendants whose appeals to Superior Court had not been docketed as of the day you left,
(b) defendants against whom probable cause had been found, but no Grand Jury presentment had been made, prior to your leaving, and
(c) a particular defendant indicted prior to your leaving but on whose case, you deliberately avoided any participation.
You state that your duties as Second Assistant included case assignments for Grand Jury presentment and Superior Court trial, participation in investigation, Grand Jury presentments and Superior Court trials and representing the District Attorney in various administrative capacities. You further state specifically that you had no responsibility for, nor authority over, the handling of any cases at the District Court level.
As a former state employee, the prohibitions of § 5 apply to you. Section 5(a) prohibits you from forever acting as an agent or attorney for or receiving compensation from anyone other than the Commonwealth or a state agency in connection with a particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest and in which you participated. Although virtually every aspect of your work involved "particular matters" as defined in § 1(k), § 5(a) is applicable only to the extent you participated (as defined in § 1(j) in each matter. Section 5(b) precludes you, for one year, from appearing personally before any state court or agency for anyone other than the Commonwealth or a state agency in connection with any such matter which was under your "official responsibility"(as defined in § 1(i)) as a state employee at any time within two years prior to the termination of your employment. The applicability of § 5(b) turns on your authority in connection with any matter, as opposed to your actual participation in that matter. In view of the foregoing, the Commission answers each of your specific questions as follows:
First, you are not precluded from representing defendants whose cases were on appeal from the District Court, but not yet docketed in Superior Court, prior to the day you left, since you specifically state that you had no authority over any District Court cases, the cases were not yet ready for assignment in the Superior Court at the time of your departure, and you had no other involvement in them in any way. You, therefore, did not participate in them nor have "official responsibility" for them.
Second, those cases pending presentment to the Grand Jury in which you state you did not participate, were at least within the scope of your "official responsibility" since you were responsible for their assignment. Section 5(b) precludes you for one year (until 1980) from providing representation on any case which was under your "official responsibility" as Second Assistant District Attorney for the two years prior to the termination of your
employment.
Third, in the particular case in which you took specific steps to avoid "participation" because of your personal relationship with the brother of the defendant, you still had "official responsibility" for that case. Therefore, § 5(b) precludes you from appearing in that case for one year.
Finally, while the Commission cannot advise you about your obligations under any other statutes or the Code of Professional Responsibility, you may wish to consider whether your participation in any of these cases, even when permitted by the conflict of interest law, could create liabilities for you.
End Of Decision
