| Date: | 02/04/1983 |
|---|---|
| Organization: | State Ethics Commission |
An attorney employed by a state agency may represent the agency head in a lawsuit filed by two former employees alleging wrongful discharge without violating § 4 of the conflict of interest law provided that the employee obtains a statement from his agency that his representation falls within the proper discharge of his official duties.
You are an attorney employed in the legal department of a state agency, ABC. Prior to 1983, XYZ, the head of ABC, fired two ABC employees. Those employees have filed a civil suit against ABC and XYZ alleging that they were wrongfully discharged. ABC has retained a private law firm (Firm) to represent it in this action, but the Firm has declined to represent XYZ because of a potential conflict of interest. The Attorney General has also refused to represent XYZ. Meanwhile, the plaintiff-employees moved for default against XYZ and the judge granted the motion after thirty days, during which XYZ was still unrepresented by counsel.
At this point you consulted with ABC's general counsel who agreed orally to your representing XYZ in this litigation, as part of your ABC duties, for no extra compensation besides your usual salary. Pursuant to this, you have appeared for XYZ before the judge and sought removal of the default (which the judge has since allowed) and filed answers on XYZ's behalf. You are not currently aware of any actual conflict between the interests of XYZ and the ABC. The answers filed by both XYZ and the ABC in this case have taken the position that XYZ acted within his authority when he discharged the two plaintiff-employees.
Does the conflict of interest law, G.L. c. 268A, permit you to represent XYZ while you are employed by the ABC?
Yes, subject to the conditions set forth below.
As a legal counsel at ABC, you are a state employee as that term is used in G.L. c. 268A, § 1(q), and subject to the restrictions in that law. In particular, § 4(c) of G.L. c. 268A is applicable to your situation: § 4(c), No state employee shall, otherwise than in the proper discharge of his official duties, act as agent or attorney for anyone 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.
In your representation of XYZ you are acting as attorney for someone in connection with a particular matter (a judicial proceeding) in which a state agency (the ABC[2]) is a party, and in which the state agency has a direct and substantial interest. Thus, the propriety of your representation, under G. L. c. 268A, rests on whether you are acting "in the proper discharge of [your] official" duties.
You have advised the Commission that ABC's general counsel has agreed orally to your representation of XYZ. It would appear that your representation would therefore comply with the exemption for representation "in the proper discharge of [your] official duties," particularly where your representation would be in relation to actions which XYZ took while serving as the head of ABC.
However, there is no written statement describing or approving your duties and responsibilities in this matter; moreover, under (citation omitted) it is the prerogative of [other ABC officials] to appoint and employ officers and employees of the ABC and to fix their condition of employment. For these reasons, before proceeding any further on XYZ's behalf, you should secure the written affirmation of the other ABC officials that your representation of XYZ is within the proper discharge of your official duties.[3] See EC-COl-81-89, note 2; 80-96.
End Of Decision
