Opinion  EC-COI-82-68

Date:	06/08/1982
Organization:	State Ethics Commission
Location:	Boston, MA

A lawyer in private practice who shares office space with a state employee who is also a lawyer in private practice must take steps to eliminate any conclusion that they are partners in order to comply with §5(d) of the conflict of interest law in dealings with local licensing authorities in matters where the state employee participated or which was subject to the state employee’s official responsibility.

Introduction

You are an attorney in private practice. You currently have a rental agreement or the use of office space, office equipment and telephone service with the law firm of (title omitted). One partner is an employee of a state agency (ABC). You maintain separate bank and clients' funds accounts and have your own letterhead. The designation on the office door reads "(name omitted) " and beneath that," your name ". You ask whether you may handle matters involving (description omitted) before local licensing authorities without violating the state conflict of interest law, G.L.c.268A. The Commission concludes that you may, provided you comply with the conditions outlined below.

In rendering this opinion the Commission has relied on the facts as you have stated them and has not made any independent investigation of those facts.

Discussion

As an employee of ABC, the person is a state employee. Section 5(d) of the conflict of interest law prohibits a partner of a state employee from acting as agent or attorney for anyone other than the Commonwealth in connection with any "particular matter"^[1] in which the Commonwealth is a party or has a direct and substantial interest and in which the state employee participates, has participated as a state employee or which is the subject of his "official responsibility."^[2] If you are considered a partner of the state employee of ABC you would be subject to the restrictions of s.5(d). In previous opinions, the Commission (EC-COI-79-7) and the Attorney General (Attorney General Conflict Opinion No. 675) have held that the activities of local licensing authorities are particular matters of direct and substantial interest to the state, due primarily to the extensive state regulation of such authorities and of the sale of (description omitted). Because some of these matters require approval of the ABC (e.g. certain licenses, citation omitted) and are subject to review by the ABC on appeal (e.g. modification of a license, citation omitted), these matters are or may be within the official responsibility of the state employee. If so, you, if considered his partner, may not appear as agent or attorney for anyone other than the state in connection with such a matter.^[3] This restriction applies equally to matters in which the state employee participates or has participated.

Regarding the issue of whether you are a "partner" as the term is used in s.5(d) of G.L.c.268A, the Commission does not limit the term to those who enter into formal partnership agreements. "The substance of the relationship is what counts...[and] if a group creates the 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." Guide to the Conflict of Interest Law, p.18, December, 1980. The Commission cited these factors in an advisory opinion involving a member of the General Court and three other attorneys in an office-sharing arrangement. See EC-COI-80-43; also Massachusetts Bar Association Ethical Opinion 76-19.

You apparently have complied with most of the requirements detailed in EC-COI-80-43 and in the MBA Ethical Opinion. However, your present arrangement in regards to the telephone service raises concern. Outside callers may easily be led to believe that they have contacted the partnership of "name omitted". Therefore, steps should be taken to eliminate this impression. Many attorneys have solved this problem by having the phone answered "law offices." This is an acceptable but not exclusive remedy to this problem. Any other method which similarly eliminates any appearance that a partnership exists would be sufficient to assure that the provisions of s.5(d) will not apply.

In conclusion, as long as you comply with the guidelines prescribed in EC-COI-80-43 and this opinion, you will not be considered a partner of the state employee of ABC and will not be restricted in your practice before local licensing authorities.^[4]

 

End of Decision

[1] For the purposes of G.L.c.268A, "particular matter" is defined as any judicial or other proceeding, application, submission, request or 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] For the purposes of G.L.c.268A, "official responsibility" is defined as the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G.L.c.268A, s.1(i).

[3] Since you do not present a specific matter for our review, the Commission will not speculate which of the many matters before a local licensing authority are within the official responsibility of the ABC, its members and/or its staff. Compliance with the guidelines detailed below will render such a determination moot. Should you choose not to comply, however, you should seek further advice from the Commission based on the specific matter before the local licensing authority.

[4] This opinion does not address the application of the conflict of interest law to the state employee his activities at ABC should you be considered his "partner."