| Date: | 03/12/1984 |
|---|---|
| Organization: | State Ethics Commission |
A state police officer may also maintain a private law practice as long as he avoids those matters in which the Commonwealth or a state agency is a party or has a direct and substantial interest. He is also prohibited from using resources available to him as a police officer to further his private law practice. §4, §23(b)(2).
You are an attorney in private practice and are also on leave from a state agency position. You are considering returning to your state agency position.
Assuming that you resume employment with the state, what limitations will be placed on your private practice of law.
You will be subject to the limitations set forth below.
Upon your return to work for a state agency, you will be a state employee for the purposes of G. L. c. 268A. See, G. L. c. 268A, §1(q). Two sections of this statute are relevant to your situation.
Under G. L. c. 268A, §4 (a) and (c), you are prohibited from receiving compensation from or acting as agent or attorney for any party other than the commonwealth in relation to any "particular matter,"1/ in which the commonwealth or a state agency is a party or has a direct and substantial interest. This section reflects the maxim that "a man cannot serve two masters," and it precludes circumstances which may lead to a conflict of loyalties by a public employee. See, Town of Edgartown v. State Ethics Commission, 391 Mass. 83 (1984). Examples of matters for which you will be subject to the §4 prohibition are criminal proceedings in state court (EC-COI-80-87); adjudicatory proceedings before state agencies (EC-COI-82-62); civil proceedings where a state agency is a party; municipal proceedings involving subjects which are subject to state regulation such as local assessment determinations, (EC-COI-79-14), local liquor licensing (EC-COI-82-68), cable television (EC-COI-81-8) and special education. On the other hand, purely private civil litigation involving non-state parties e.g. domestic relations, real estate, and transactions involving private parties will generally not be subject to the §4 restrictions. You should therefore carefully identify each matter for which you are retained as a private attorney and avoid those matters in which the commonwealth or a state agency is a party or has a direct and substantial interest.
As a state employee, you would also be subject to the standards of conduct contained in G. L. c. 268A, §23. Specifically, §23 ¶2(2) prohibits a state employee from giving reasonable basis, by his conduct, for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties or that he is unduly affected by the kinship, rank, position, or influence or any party or person. In practical terms this section prohibits you from using resources available to you as a state employee to further your private law practice. For example, you may not use state telephones, automobiles, copy machines or clerical personnel to perform you private law work. See EC-COI-82-59. You should not solicit clients during working hours as a state employee and should avoid representing individuals with whom you have official dealings as a state employee. see, EC-COI-82-33. By the same token, you should avoid conducting activities in your state position with respect to individuals who have been your clients. In such situations, you might create a reasonable impression that your agency decision, for example, might be unduly affected by the fact that the person involved was a client.
End of Decision
DATE AUTHORIZED: March 12, 1984
