Opinion  EC-COI-80-123

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

Section 7 prohibits a member of the General Court from accepting compensation from a county bar advocate's corporation for representing indigent defendants in criminal cases, where the compensation is paid from the treasury of the Commonwealth.

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 in the District Courts of the Commonwealth and be compensated for your services. 

Answer

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. You are a member of the Bar Association whose members make available their legal services as court appointed attorneys to the Bar Advocates, Ine. (Bar Advocates) which in turn contracts with the various District Courts of County. Participating attorneys are reimbursed at a rate of $50 or $100 per day depending on the nature of the assignment. Payment is made by the Commonwealth to the Bar Advocates which then issues a check to the participating attorneys. 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)

Decision

       Accordingly, the Commission has concluded that by accepting an appointment and by receiving the compensation, which is paid from the state treasury, a member of the General Court would have a financial interest in a state contract in violation of Section 7. See EC-COI-80-122 (issued today). It is immaterial in your case that the compensation is channeled through the Bar Advocates. You would still have a financial interest in a state contract, albeit indirectly. The prohibition of Section 7 would still apply. As noted in EC-COI-80-122, in order to avoid any detrimental impact on the processing of criminal cases in the courts 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 Decision

(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 Cour considered proposed legislation to amend Section 7. With the passage of Chapter 303 of the Acts if 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 its 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 the setting of salaries for judges and court personnel, serious issues would be raise particularly with respect to Subsections (a), (d), and (e)of Section 23.