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What issues arise from a member of the General Court and an attorney engaged in the private practice of law who has entered into an office-sharing arrangement with other attorneys, one of whom is a registered legislative agent?
All identifying information has been deleted from this opinion as required by Chapter 268B, section 3(g).
You are a member of the General Court and an attorney engaged in the private practice of law. You have recently entered into an office-sharing arrangement with other attorneys, one of whom is a registered legislative agent. You ask whether this professional arrangement violates the conflict of interest law, General Laws Chapter 268A. We conclude that you may continue this arrangement provided you avoid creating the public image that you and the legislative agent are partners.
In rendering this opinion, we have relied upon the facts as you have stated them and have not made any independent investigation of those facts.
You advise us that you and the other attorneys in the suite are sole practitioners who share office space and related office expenses but that you do not share income from, and are not otherwise associated with, each other's individual law practices. The telephone is answered simply "Law Offices." While each of you has his own stationary which would indicate that you are a "professional association." Additionally, you advise us that the lawyer/lobbyist, who represents only one interest group, conducts his lobbying activities from a separate office located in another city.
We note that as a member of the House of Representatives you must "make every reasonable effort to avoid transactions, activities, or obligations, which are in substantial conflict with or will substantially impair [your] independence of judgment," Rules of the House of Representatives 1979-80, Rule 16A(1) (hereinafter "House Rules"). You are absolutely prohibited from accepting gifts aggregating over $100 from any legislative agent during any calendar year, General Laws Chapter 268B, section 6; General Laws Chapter 3, section 43; House Rules 16A(12), and you may not accept any gift of cash from any person having a direct or indirect interest in pending legislation, House Rules 16A(12). See also General Laws Chapter 268A, section 2 and 3. Moreover, you are required annually to publicly disclose information regarding business associations; certain gifts and reimbursements to the extent they exceed $100; and information concerning other income, assets and liabilities, General Laws Chapter 268B, section 5.
We further note that the activities of the lawyer/lobbyist are regulated to a great extent by rules and statutes not within our jurisdiction. For example, a legislative agent must publicly register with the Secretary of State and identify, among other things, the person or business whose interests her is representing, G.L. c. 3, section 41. He must file bi-annual public statements itemizing all expenditures for meals, gifts, transportation and entertainment, among other expenses, and the disclosure must identify the "date, place, amount, and the names of all persons in the group partaking in or of such meal, entertainment or transportation." Furthermore, he may not offer or give to any public official or members of their immediate family any gifts aggregating more than $100 in any calendar year. General Laws Chapter 3, section 43, G.L. c. 268B, section 6.
Moreover,, as an attorney serving as a public official, the Canons of Ethics contained in Rule 3.22 of the Rules of the Supreme Judicial Court prohibit you from accepting anything of value if you know or "it is obvious that the offer is for the purpose of influencing [your] official action as a public official," DR8-101(A)(3). The other attorneys in the group are specifically prohibited from stating or implying that they are able to influence improperly or upon irrelevant grounds any public official, DR 2-101 and 2-102.
With these various statutes and regulations in mind, we turn to the provisions of the state's conflict of interest law which apply to you. As a member of the General Court you are a "state employee" as that term is defined in section 1(q). Section 3(b) prohibits you from directly or indirectly asking, soliciting, accepting or receiving anything of substantial value for or because of any official act performed or to be performed by you. Although an office sharing arrangement such as you describe could constitute something of substantial value, this arrangement would not, by itself violate the statute unless it was entered into for or because of any official act performed or to be performed by you.
Section 5(d) prohibits the partner of a state employee from acting as the agent or attorney for anyone other than the Commonwealth in connection with any particular matter in which the state is a party or has a direct and substantial interest and in which the state employee participates or has participated or which is the subject of his official responsibility. Although the enactment of general legislation is specifically exempted from the definition of "particular matter" appearing in section 1(k), this section could restrict your associate's activities with regard to the enactment of special legislation. The Attorney General has previously ruled that a group of lawyers who practice together from the same suite and who share joint office expenses but who have not entered into a profit-sharing agreement and are not obligated to file a partnership tax return will not be considered to be "partners," see Attorney General Conflict Opinions 293, 438, 539. Although the Commission concurs with those opinions, it concludes that members of a group who, by their conduct, give the appearance of being partners will be treated as such for purposes of this and other sections of the statute.
In order to prevent having a partnership status imputed between you and the other members of the group, you must scrupulously avoid creating a public image that you are partners or are associated in some other way. Thus, for example, you should use separate stationary and business cards, and should not join your names with others on law lists, telephone directories, or other professional notices other than to list the names of the individuals in the law office on the door of the suite, if appropriate. See Formal Opinion 310, ABA Committee on Professional Ethics (June 20, 1963); Massachusetts Bar Association Ethical Opinion 76-19.
Section 6 prohibits a state employee from participating in any particular matter in which he, his partner, or a business organization in which he is serving as a partner has a financial interest. For the reasons previously discussed, these provisions will not restrict your activity as a public official provided you comply with the guidelines outlined. However, this section also prohibits a sate employee form participating in any particular matter in which any person with whom he is negotiating or has any arrangement concerning prospective employment has a financial interest. Assuming that the legislative agent member of the group is compensated for his lobbying activities, he has a financial interest in legislation affecting the person or group whose interest he represents. Accordingly, if you are negotiating or have any arrangement with the legislative agent regarding legal services to be performed for him or his clients, you may not vote on or otherwise participate in the enactment of any special legislation in which he has a financial interest. Moreover, since your duties as an elected official would otherwise require you to participate in such legislation, section 6 as amended by Chapter 210 of the Acts of 1978 would require you to file a disclosure with the Ethics Commission of the nature and circumstances of the particular matter and of your financial interest therein. However, you may not take advantage of the certification provisions of that section since, as an elected official, you do not have an appointing authority. See EC-COI-79-64.
Section 23 of Chapter 268A establishes general standards of conduct for state employees. In particular, section 23(e) prohibits a state employee from engaging in conduct which would give a reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is unduly affected by the kinship, rank, position or influence of any party or person. In addition, section 23(f) prohibits a state employee from pursuing a course of conduct which will raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust. Although this office-sharing arrangement will result in your close proximity and frequent exposure to a legislative agent, the Commission concludes this arrangement is not prohibited provided that you take appropriate action to avoid giving the appearance of being the partner of, or associated in fact in some other way with, a legislative agent. Since compliance with the foregoing guidelines, and with the laws, rules and regulations which govern the activities of public officials, legislative agents and attorneys will insure that the nature of your relationship with this individual is a matter of public record, the public will be adequately protected against any violation of section 23.
Finally, while we cannot advise you about your obligations under the other statutes or Rules previously discussed, you may wish to review whether the office-sharing arrangement which you have described may create any liabilities for you.