Opinion  EC-COI-84-20

Date:	02/21/1984
Organization:	State Ethics Commission

A law firm associate who is appointed a special assistant attorney general to represent the Commonwealth in matters pending before a state agency is subject to § 4 of the conflict of interest law and may not represent law firm clients before the state agency.  Since the associate is not a partner in the law firm, § 5(d) will not prohibit the firm’s partners from representing clients before the state agency.

 

 

Facts

You are an associate in a law firm (Firm). The Firm represents clients in proceedings before a state agency (ABC) and you participate in those proceedings on behalf of the Firm. You were recently appointed as a Special Assistant Attorney General to represent the interests of the Commonwealth in two matters pending in ABC. None of the Firm's private clients are involved in these two matters. A Division (Division) of the Office of the Attorney General is involved in these matters as an intervenor on behalf of public consumers pursuant to (Citation Omitted). Your representation of the Commonwealth could last more than sixty working days. There may also be additional matters in which the Commonwealth is involved before ABC concerning a regulated company well as the Division as an intervenor where you will represent the Commonwealth. 

While you are serving as a Special Assistant Attorney General, you also represent or will be representing, clients in other matters before ABC and in which the Division is an intervenor or will intervene. However, you have not been, and will not be, involved as a Special Assistant Attorney General in any matter where the Firm represented a client.

Questions

1. What restrictions does the conflict of interest law, G.L. c. 268A, place on the Firm's representation of clients before ABC during the time that you are serving as a Special Assistant Attorney General?

2. What restrictions does the conflict of interest law, G.L. c. 268A, place on you with respect to your personal involvement as a Firm associate in cases of clients before ABC while you are serving as a Special Assistant Attorney General?

Answers

1. Because you are an associate with the Firm rather than a partner, the law will not prohibit the activities of the Firm with respect to its representation of clients before ABC while you serve as a Special Assistant Attorney General.

2. The law will prohibit your involvement in cases on behalf of private parties before ABC while you are serving as a Special Assistant Attorney General if you work more than sixty days and the Division intervenes in the cases.

Discussion

The Firm

As a Special Assistant Attorney General, you are a state employee. Section 5(d) addresses the applicability of the law to the partners of present state employees. Under this section, the partner of a state employee is prohibited from acting as the agent or attorney for anyone other than the Commonwealth 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 the state employee participates^[2] or has participated as a state employee or which is the subject of his official responsibility.^[3] Since you indicate that you are not a partner in the Firm, this section will not restrict the activities of the Firm based on your employment status. However, the Commission does not limit the term "partner" 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." EC-COI-82-68; 80-43. Therefore, your actions must be in compliance with these guidelines in order to avoid the provisions of § 5(d). You should also be aware of the Canons of Ethics and Disciplinary Rules Regulating the Practice of Law, Rule 3:07 of the Rules of the Supreme Judicial Court which may govern the activity of the Firm in this situation.

Individually

In your position with the Office of the Attorney General, you are a "special state employee" and the provisions of § 4 apply to you. Section 4(a) prohibits a state employee from receiving compensation from anyone other than the Commonwealth or a state agency in relation to any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest. As a "special state employee" the provisions of § 4 apply less restrictively to you. A special state employee is subject to the provisions of § 4 only in relation to a particular matter in which he has at any time participated as a state employee, or which is or within one year has been the subject of his official responsibility or which is pending in his agency if he serves as a state employee more than sixty days during any one year period. Under the provisions of § 4(a), you may continue your present activities with the Firm even where the Division is an intervenor as long as you comply with the requirements regarding participation and official responsibility and you do not serve as a special Assistant Attorney General for more than sixty days during a one year period.^[4] However, if you work more than sixty days during the year as a Special Assistant Attorney General, you may not represent the Firm's clients in matters before ABC where the Division is or becomes an intervenor because the matters will then be pending in your agency. See EC-COI-82-50.

 

End Of Decision

^[1] "Particular matter," is defined as any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petition of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, § 1(k).

^[2] "Participate" is defined as participate in agency action or in a particular matter personally or substantially as a state, county or municipal employee through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, § 1(j).

^[3] "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, § 1(i).

^[4] To serve more than sixty days means to perform work on more than sixty days. Work on any part of a day will be considered work for one full day. You are responsible for keeping records in this regard. See, EC-COI-82-49.