Opinion  EC-COI-84-39

Date:	03/12/1984
Organization:	State Ethics Commission

A part-time city solicitor who primarily handles police department matters is advised that §§ 17, 23(b)(2), 23(b)(3) and 23(c) of the conflict of interest law apply to his ability to represent a criminal defendant on a gambling arrest in the city by the state police where he does not plan to call any city police officers as witnesses or raise any arrest-related defenses should the matter go to trial.

Facts

You are a City Solicitor. The position, which is part-time, includes your representing City police in tort actions arising out of their official responsibility, advising City police regarding their liability, and providing advice to the Police Chief regarding the propriety of department rules and regulations and other legal issues affecting the department. 

You have been retained to represent a defendant in criminal proceedings concerning a violation of gambling statutes, see, G.L. c. 271, § 17, which allegedly occurred in the City. The investigation, arrest, and complaint proceeding against the defendant were conducted by the state police, and the case will be prosecuted by the district attorney. Two or three members of the City police department accompanied the state police at the arrest at the invitation of the state police. You plan to admit to the facts at a pre-trial hearing and therefore do not intend to call witnesses. In particular, you do not intend to raise any arrest-related defenses which would involve the testimony of City police, and do not foresee City police serving as witnesses in the case if there is a trial.

Question

Does G. L. c. 268A permit you to represent the defendant while you serve as City Solicitor?

Answer

Yes, given the current posture of the case. However, your representation raises concerns over other provisions of law.

Discussion

In your capacity as City Solicitor, you are a "municipal employee" for the purposes of G. L. c. 268A. EC-COI-81-173. There are two sections of G.L. c. 268A which are relevant to your situation.

1. Section 17

As a municipal employee you are prohibited by G.L. c. 268A, § 17 from either receiving compensation or acting as attorney for a private party in any judicial proceeding or other particular matter^[1] in which the City or an agency of the City is either a party or has a direct and substantial interest.^[2] Your representation of a defendant in a judicial proceeding prosecuted by the district attorney would not fall within the § 17 prohibition. A case prosecuted by the district attorney for a violation of a state law is not a matter of direct and substantial interest to the City. Although the arrest might have taken place within the City, whatever interest the city has in the prosecution of the defendant for a violation of a state law is not separate and distinct from that of the citizenry of the commonwealth as a whole. Commonwealth v. Mello, 1980 Mass. App. Ct. Adv. Sh. 2223,2226. EC-COI-83-176. Moreover, because the scope of your official authority as City Solicitor does not extend to the activities of the district attorney, your representation of a defendant in a case prosecuted by the district attorney would not pose any problems under the standard of conduct contained in G.L. c. 268A, § 23. As will be seen below, the degree of official authority over the participating officer is a key factor in the application of § 23.               

2. Section 23

As a municipal employee you are subject to the standards of conduct contained in § 23. Three relevant provisions prohibit you from

1. accepting other employment which will impair your independence of judgment in the exercise of your official duties [§ 23 ¶ 2(1)];
2. using or attempting to use your official position to secure unwarranted privileges or exemptions for yourself or others [§ 23 ¶ 2(2)], and
3. 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)].

These provisions would come into play if you were retained to represent a defendant in a criminal proceeding prosecuted by members of the City police department. For example, in EC-COI-81-73, the Commission advised a part-time City Solicitor that she could not also represent clients in criminal proceedings brought by the City police department. The basis for the ruling was that, as City Solicitor, her ability to render independent advice to City police officials would be impaired by her representation of defendants prosecuted by those same officials. See also EC-COI-83-176. Such concerns are not raised in your situation since City police are not prosecuting the case. However, aside from G.L. c. 268A, more significant concerns might be raised by your acting as defense counsel under the Code of Professional Responsibility and recent decisions constituting art. 12 of the Massachusetts Declaration of Rights. See, Commonwealth v. Hurley, 391 Mass. 76, 80-82 (1984); Canons of Ethics and Disciplinary Rules Regulating the Practice of Law, S.J.C. Rule 3:07, DR 5-101, DR 7-101. Since the Commission's authority does not extend beyond G.L. c. 268A and G.L. c. 268B, you should therefore seek guidance from other sources.

End Of Decision 

^[1] G.L. c, 268A, § 1(k) defines "particular matter," 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 petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.

^[2] In view of your part-time status, you are a "special municipal employee" within the meaning of § 1(n) and are therefore eligible for certain exemptions under § 17 which are not available to full-time employees. For the purposes of this opinion, your status as a special municipal employee is not relevant.