You are a member of the General Court. Although you are a lawyer, you have not been engaged in the private practice of law. You are now contemplating establishing a law firm and "expect that the firm would attract clients whose interests would require contacts with federal, state and local administrative authorities." In particular, you anticipate having a client who may be seeking certain state licenses or permits.
You ask what restrictions the conflict of interest law, G.L. c. 268A, will place upon your activities as a private practitioner.
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 s.1(q) of c. 268A. Section 4 of that chapter generally prohibits a state employee, otherwise than in the proper discharge of his official duties, from acting as attorney for anyone other than the state in connection with any particular matter[1] in which the state is a party or has a direct and substantial interest. Legislators, however, are not subject to this provision except that they may not receive compensation other than their legislative salary for personally appearing before any state agency unless (a) the particular matter on which they appear is "ministerial" (a term which includes the filing or amendment of tax returns, license or permit applications, incorporation papers or other documents), or (b) the appearance is before a court, or (c) the proceeding before the agency is a quasi-judicial proceeding. it will be considered a quasi-judicial proceeding if the action of the state agency is adjudicatory in nature, is appealable to the court, and both sides in the dispute are entitled to representation by private counsel. For example, a state representative can represent a private client before the Industrial Accident Board in an action against the company employing his client. However, he could not do so if his client's claim was against the Commonwealth and the Commonwealth was represented by the Attorney General.
The Commission has previously ruled that while the filing of an application for a permit or a license is a ministerial matter in which a legislator could participate, he would be prohibited from personally appearing before any state agency to negotiate or advocate on behalf of his client with regard to that permit or license unless it occurs in the context of a quasi-judicial proceeding. EC-COI-79-86. See also, EC-COI-79-66, 79-92, 79-127 and 80-112, copies of which are enclosed. However, appearances before municipal agencies are not prohibited by s.4. See, EC-COI-79-126.
With respect to the other members of your firm, s.5(d) prohibits any partner of yours from acting as 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 you participate or have participated as a state employee or which is the subject of your official responsibility. Although the enactment of general legislation is specifically exempted from the definition of "particular matter", this section would restrict your partner's activities with regard to the enactment of special legislation. To advance the purposes of the law, the term "partner" is not restricted to those who enter into formal partnership agreements. Rather, partner means any person who joins with you, formally or informally, in a common business venture. The substance of the relationship is what counts, not the term the parties use to describe that relationship. In addition, if a group creates a public appearance of a partnership (for example, by using joint stationery, business cards and business listings), they will be treated as partners even though they may not, in fact, share profits.
The advice rendered herein must necessarily be general in nature. Once you are in private practice, if any specific situation comes up, you should feel free to request a further opinion at that time.
End of Decision
