Opinion  EC-COI-81-173

Date:	12/08/1981
Organization:	State Ethics Commission

A former attorney with a state agency will not be prohibited from representing a non-state client before the state agency in connection with a particular matter in which the former state employee did not participate. In general, G. L. c. 268A, § 5(a) will not prohibit the attorney from representing clients in connection with new particular matters that arose after the attorney left the state agency.

Facts

You served as an attorney with the Division of ABC (ABC) until 1981. In that capacity, you defended agency actions in Superior Court, collected taxes from employees and occasionally trained ABC Staff. You worked under the supervision of a chief counsel at ABC and did not possess supervisory responsibility over others. Following your departure from ABC, you assumed employment with a law firm, (Firm). The Firm now represents a client who has a case pending before ABC.

Question

You wish to know whether you may work for the Firm on this case and also the general limitations which the conflict of interest law, G.L. c. 268A, places on your work with the firm.

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. When you left your position with ABC in 1981, you became a former state employee within the meaning of G.L. c. 268A, s.5. As a former state employee, you are prohibited by s.5(a) from receiving compensation or acting as attorney or agent for anyone other than the commonwealth in connection with any particular matter [1] in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which you participated [2] while a state employee. since ABC actions involving decisions, determinations to proceed against delinquent employees and judicial proceedings which review agency determinations are particular matters within the meaning of G.L. c. 268A, s.1(k), you are prohibited from receiving compensation or acting as attorney or agent on behalf of a private client in connection with these and other particular matters for which ABC is a party if you participated in these matters while employed at ABC. Accordingly, you would be permitted to work for the Firm on those cases in which you did not participate as an ABC employee. See, EC-COI-81-112. In particular, s.5(a) allows you to represent your Firm's client before ABC. The case was not filed with ABC until after your departure and you, therefore, could not have participated in the matter as an ABC employee. See, EC-COI-81-124. If other specific situations should arise where you are uncertain about the limitations which s.5 places on your activities with the Firm, you may request a further advisory opinion from the Commission at that time.[3]

End Of Decision  

[1] "Particular matter", any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding but excluding enactment of general legislation by the general court. G.L. c. 268A, s.1 (k).

[2] "Participate", participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.1(j).

[3] In view of your statement that you exercised no supervisory responsibilities at ABC, the provisions of s.5(b) which would limit, in certain situations, your appearances before state agencies are not applicable to you.