You are an attorney in private practice. Between (dates omitted) you worked as a staff attorney for the Department of Social Services (DSS). In your state position, you regularly represented DSS social workers in custody cases. You were also responsible for legal research, advising social workers on legal issues, and training social workers on DSS policy. As a general rule, you did not work on the cases of social workers other than those assigned to you.
In your private practice, you have been appointed by the ABC Probate Court to represent six children who are the subjects of separate custody petitions filed by DSS. None of these cases was pending in DSS before you left. You have also been appointed by the Court to represent a child who is the subject of a DSS custody petition, whose case was pending as a social service matter in DSS prior to your termination of state employment. During your employment with DSS, you were not involved in this case because it was not assigned to any of the social workers whom you regularly represented.
May you represent the children in the above matters without violating the conflict of interest law, G.L. c. 268A?
As a former employee of DSS, the provisions of G.L. c. 268A, § 5 apply to you. Section 5(a) prohibits a former state employee from receiving compensation from, or acting as attorney for, anyone other than the Commonwealth or a state agency, 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 he participated[2] as a state employee.
Section 5(b) prohibits a former state employee, for one year, from appearing personally before any court or agency of the Commonwealth in connection with any particular matter which was under his official responsibility[3] during the last two years of his state employment. This section goes beyond those matters in which you participated and turns on your authority in connection with any matter.
The custody petitions filed by DSS are particular matters in which a state agency, DSS, is a party and has a direct and substantial interest. However, your representation of the children in the custody petitions will not violate § 5(a) or (b). Since six of the petitions were not pending in DSS during your state employment, you could not have participated in the matters or had official responsibility for them while you were a DSS employee. With respect to the petition that was pending in DSS during your state employment, since it was not assigned to a social worker with whom you worked, you did not participate in or have official responsibility for the matter while a DSS employee.
As of March 29, 1983, an amendment to § 23 of G.L. c. 268A will take effect which will apply certain provisions of that section to former state employees. A former state employee will be prohibited from accepting or engaging in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority and from improperly disclosing materials within the exemptions to the definition of public records as defined by G.L. c. 4, § 7 which were acquired by him in the course of his official duties and from using such information to further his personal interests. See, St. 1982, c. 612, §16. Therefore, your activities in the private sector will be regulated by these additional limitations.
End Of Decision
