Opinion  EC-COI-80-122

Date:	09/17/1980
Organization:	State Ethics Commission

Section 7 prohibits a member of the General Court from accepting compensation from the Commonwealth for representing indigent defendants in criminal cases.

Facts

You are an attorney and a member of the General Court, and ask whether, consistent with the Conflict-of-interest Law, General Laws Chapter 268A, you may accept court appointments to represent indigent defendants in criminal cases and be compensated for your services.

Answer

The Commission concludes that you may not.(1)

Discussion

       In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not made any independent investigation of those facts. As a member of the General Court, you are a state employee as that term is defined in Section 1(q) of Chapter 268A. Section 7 prohibits a state employee from having a financial interest, directly or indirectly, in a contract made by a state agency, in which the Commonwealth or a state agency is an interested party. The courts of the Commonwealth are state agencies. Moreover, Since the passage of the Court Reform Act (Chapter 478 of the Acts of 1978), all costs and administration of the judicial branch have been assumed by the Commonwealth. This would include the payment of the compensation of an attorney, not employed by the Massachusetts Defenders Committee, appointed to represent an indigent defendant in any court of the Commonwealth. See G.L.c. 213, §8 and G.L.c. 280, §4.(2). By accepting the appointment, you would be deemed to have entered into a contract. Since your compensation would be paid from the State Treasury, you would have a financial interest in a state contract in violation of Section 7. In order to avoid any detrimental impact on the processing of criminal cases in the court of the Commonwealth, this ruling will be enforced prospectively and, therefore, will only affect appointments made after the date of this opinion.(3)

End of Discussion

(1) As noted in the text of this opinion, the application of Section 7 of Chapter 268A is relevant to your situation. The Commission has delayed responding to your request while various issues involving Section 7 were under review and while the General Court considered proposed legislation to amend Section7. With the passage of Chapter 303 of the Acts of 1980, the Commission has now begun to render opinions under Section 7.

(2) Prior to the court Reform Act, such an expense was a county obligation. See Abodeely v. County of Worcester, 352 Mass. 719, 722 (1967)

(3) The Commission’s resolution of this matter under Section 7 renders it unnecessary for it to consider the applicability of the Standards of Conduct set out in Section 23. However, in view of the legislative and budgetary role played by the General Court in the administration of the court system, including setting of salaries for judges and court personnel, serious issues would be raised particularly with respect to Subsections (a), (d) and (e) of Section 23.