You were General Counsel of a state agency (agency) until 1978. Since 1979, you have been employed as an associate in a law firm. You ask whether you may, consistent with General Laws Chapter 268A, perform certain work as an attorney You also ask what restrictions will be placed on other attorneys in your law firm. As a former state employee, you are subject to § 5(a) which restricts your participation in particular matters in which you participated as a state employee, and § 5(b) which restricts your appearance before state courts and agencies in connection with particular matters over which you had official responsibility.
In 1976, an organization commenced suit against the agency ((A vs. B), claiming that certain agency regulations violated substantive requirements of law. You state that you do not recall any personal involvement in the process leading up to the adoption of these regulations, but you assume that a member of your legal staff had some involvement in that matter. In the lawsuit, the agency was represented by the Attorney General's office which worked with the agency's staff attorneys to whom you delegated primary responsibility. You state that you "occasionally consulted briefly" with the Assistant Attorney General and with various of your assistants who had primary responsibility for the case. You now wish to participate in the representation of a group which contemplates challenging the same regulations complained of in A v. B as well as a more recent amendment to these regulations, drafted by an attorney on your staff and the Assistant Attorney
General handling A v. B.
It appears from your letter that the group contemplates challenging the validity of the regulations, not merely arguing that they are improperly applied to the group. The group has not yet decided whether to seek legal relief through A vs. B or to bring an independent action. We, therefore, assume that at least some of the group's claims will be the same claims raised in A vs. B. You state that you have been advised that when you were General Counsel you spoke with an attorney for the group regarding the merits of the group's challenge to the regulations, but you do not personally recall it. Your involvement in A vs. B was not merely in terms of "official responsibility" as opposed to direct "participation". You state that you consulted occasionally with the Assistant Attorney General assigned to the case as well as with legal staff you supervised who had primary responsibility for the case. Even if you did not, as you state, make any decisions or recommendations regarding A vs. B, your awareness and tacit approval of the work of your direct subordinates on the case constitutes participation under § 1(j) of chapter 268A. In addition, we find that you participated directly in the "particular matter" of the regulation amended following the lawsuit since you dealt with that subject in supervisory conferences with the lawyer who was primarily responsible. On the other hand, your role as to the earlier regulations complained of in A vs. B can properly be described as official responsibility, since you state you had no personal involvement in the adoption of these regulations.
With regard to your specific questions, the Commission addresses them as follows:
You ask whether your participation in this proposed matter as a salaried associate of the law firm would constitute the receipt of "compensation directly or indirectly" from the group. Although your question refers to indirect compensation from a client, our response focuses more broadly on your direct compensation from your law firm as a salaried employee. Regardless of whether you can be considered to receive indirect compensation from the group your performance of legal work for which you are paid would violate the "compensation" clause of § 5(a) if the legal work involves a "particular matter" covered by § 5(a). The form of your payment, whether salaried or based upon an interest in the firm, is not relevant.
You ask whether the group's claim and any judicial proceeding which may be brought to vindicate the claim are different particular matters from A vs. B. The claim in A vs. B concerned a matter of substance which appears to be the same matter which the group now intends to raise. To the extent that the group's case is based upon the same challenge to the validity of the same regulation complained of in A vs. B or a challenge to an amended regulation which is substantially the same in regard to the substance of the complaint, the two cases constitute the same particular matter. See Attorney General Conflict Opinion Nos. 672, 820.
You ask whether any prohibitions placed upon you by Chapter 268A will affect others in your firm. Since you are not a partner in the firm, the Commission adheres for the present to the Attorney General's consistent ruling that no prohibitions are placed upon others in your firm by § 5(c). See Attorney General Conflict Opinion No. 845.
Finally, you ask whether you are prohibited from assisting in the legal representation of the group in connection with its claim for reimbursement for administratively necessary days, including direct representation in judicial proceedings or appearing at meetings with agency officials. Since it appears from your description of the group's suit that it will involve the same particular matters as A vs. B, you are precluded from participating in the suit at any time. In addition, if the claims in the group's suit should differ from those in A vs. B, but should also call into question the validity of the amended regulation, you would be precluded from participation in developing this amended regulation.
If, as the group's pending action develops, you believe, based on the standards we have set forth in this letter, that the action does not constitute a particular matter in which you participated or had official responsibility as General counsel, please feel free to request a further opinion from the Commission.
End Of Decision
