| Date: | 09/11/1984 |
|---|---|
| Organization: | State Ethics Commission |
An attorney may not participate in a Bar Advocate program representing indigent defendants prosecuted by a District Attorney’s Office and be appointed as a special prosecutor handling child support cases in that office unless he serves as a special prosecutor for no more than 60 days in a 365-day period. The attorney is a special state employee subject to §§ 4 and 23 of the conflict of interest law.
You are an attorney participating in the Bar Advocate Program in ABC and DEF Counties. Under this program you periodically represent indigent defendants in two District Courts within these counties. The DEF County District Attorney prosecutes the defendants whom you represent in DEF and ABC Counties.
You also wish to work part-time for the DEF County District Attorney's Office on a one-year program prosecuting child support cases. You expect to be assigned six days per month in the district courts of ABC and DEF Counties.
What restrictions does G.L. c. 268A place on your employment with the DEF County District Attorney's Office?
You may not represent indigent defendants in DEF and ABC Counties if you serve as a Special Assistant District Attorney for more than sixty days in any one-year period. Your dual roles are also subject to the limitations of § 23 of the conflict of interest law and the Code of Professional Responsibility for attorneys.
The DEF County District Attorney's Office is considered a state agency for the purposes of G.L. c. 268A and you will therefore be a state employee under G.L. c. 268A. As a Special Assistant District Attorney, you will be permitted to engage in outside business activities during normal working hours and will therefore be a "special state employee" as that term is defined in § 1(o)(2)(a).
Two sections of G.L. c. 268A are relevant to your situation. Section 4, paragraph 7, clauses (a) and (b) prohibits you from receiving compensation from, or acting as agent or attorney for, anyone other than the Commonwealth in relation to any particular matter[1] in which you have participated[2] as a state employee or which is or within one year has been the subject of your official responsibility.[3] Since your representation of indigent defendants in criminal matters for the Bar Advocate Program is not related to your prosecuting child support cases as a Special Assistant District Attorney, clauses (a) and (b) do not prohibit your child support prosecution activities.
However, clause (c) of § 4, paragraph 7, prohibits you from receiving compensation or acting as agent or attorney for anyone other than the Commonwealth in relation to a particular matter which is pending in the agency you are serving if you serve more than sixty days during any three hundred sixty five day period. Criminal prosecutions in DEF County are the responsibility of the District Attorney's Office in that county. Thus, your participation in the Bar Advocate Program would necessarily involve matters pending in the agency you would be serving as Special Assistant District Attorney.
As long as you work as a Special Assistant District Attorney on no more than sixty days during any three hundred sixty five day period, the restriction of clause (c) will not apply to you. To serve more than sixty days means to perform work on more than sixty days, and work on any part of a day will be considered work for one full day. You are responsible for keeping accurate records in this regard. See, EC-COI-80-31. If you serve for more than sixty days during any three hundred sixty five day period as a Special Assistant District Attorney, you will have to cease representing clients in the Bar Advocate Program.[4]
As a state employee, you are also subject to the standards of conduct contained in § 23. The relevant provisions of § 23 prohibit you from
accepting other employment which will impair your independence of judgement in the
exercise of your official duties [§ 23 ¶ 2 (1)]; or
by your conduct giving reasonable basis for the impression that any person can
improperly influence or unduly enjoy your favor in the performance of your official
duties, or that you are unduly affected by the kinship, rank, position or influence
of any party or person [§ 23 ¶ 2 (3)]; and
accepting employment or engaging in any business or professional activity which
will require you to disclose confidential information which you have gained by reason
of your official position or authority [§ 23 ¶ 3 (1)].
These provisions will inevitably come into play whenever there is an overlap between your official duties as a child support case prosecutor and your representation of indigent defendants. For example, you must avoid prosecuting individuals whom you have previously represented in the Bar Advocate Program. You must also refrain from disclosing to defense attorneys in the Bar Advocate Program confidential information which you have access to which relates to the prosecution of a case.
You should be aware your dual advocacy may present more substantial questions under the Code of Professional Responsibility. Specifically, your ability to represent indigent defendants might be affected by your simultaneous representation of the prosecution in other cases. See, Massachusetts Bar Association, Committee on Professional Ethics, Opinion No. 80-1 [law student may not simultaneously represent indigent defendants in a clinical law school program while also representing the commonwealth as a prosecutor in a different county]. Because the Commission's jurisdiction does not extend to construing the Code of Professional Responsibility, you should seek further guidance from other sources.
End Of Decision
