You are employed part-time as a consultant to a legislative committee of the General Court. You are also engaged in the private practice of law. In this regard you share office space with a member of the General Court (X). Your association with X consists of sharing office expenses, including secretarial services, telephone, utilities, books, supplies and equipment. You have a joint checking account, but the money is used solely to pay office expenses. You maintain separate practices and do not share profits or fees except as appropriate regarding individually referred cases. You each have your own stationery, and your telephone is answered "law offices."
You would like to accept court appointments to represent indigent criminal defendants in both state and federal court. None of the fees you earn by such representation would be shared with X except insofar as they would be used to help defray your share of the office expenses.
Does G.L. c. 268A permit you to accept and be reimbursed for court appointments to represent indigent criminal defendants?
Yes, subject to the limitations set forth below.
Because your employment arrangement with the General Court permits you to engage in private employment during normal working hours, you are considered to be a "special state employee," G.L. c. 268A, § 1(o).[1] The sections of that statute which are relevant to your situation are § 4, § 7, and § 23. Section 4 provides in relevant part that a state employee may not act as agent or attorney for anyone in connection with any particular matter in which the Commonwealth is a party or has a direct and substantial interest. Criminal proceedings are particular matters within the meaning of the statute. However, because you are a special state employee you are only prohibited from acting as attorney for anyone in relation to a particular matter in which you participated as a state employee at any time, or which is or within the past year has been a subject of your official responsibility, or which is pending in the state agency in which you work. In your position as consultant to the Committee you have not participated in any criminal prosecutions. Likewise, no criminal prosecution has been the subject of your responsibility in the past year, nor is any criminal prosecution pending in the General Court. Therefore, you would not be precluded by § 4 from accepting court appointed criminal cases and being paid for such representation. You may also serve as court appointed counsel in criminal matters brought in federal court assuming the same conditions are met. See EC-COI-83-58.
Section 7 of the statute provides that no state employee may have a financial interest, directly or indirectly, in a contract made by a state agency in which the Commonwealth or a state agency is an interested party. Special state employees are exempted from this provision by § 7(d) as long as they do not participate[2] in or have official responsibility for any of the activities of the contracting agency and they file with the commission a statement making full disclosure of their interest in the contract. The issue in your case is whether as a consultant to the Committee you participate in any of the activities of the agency you would be contracting with. As reimbursement for court-appointed representation comes from the court system's budget, the courts would be the contracting agencies. The Committee may have responsibility for bills relating to the court system that are introduced in the General Court.[3] Its function is to hold hearings on the bills and report them out to the chamber where they originated. As an aide to the Committee your task is to advise the chairperson and Committee members as to the impact of a bill. For example, you would research to see how a proposed bill would change prior law or whether it was constitutional. Because your activity is so remote from the actual implementation of legislation that ultimately is enacted by the General Court, you do not participate in any of the activities of the Court within the meaning of G.L. c. 268A.
You should also be aware of the standards of conduct set out in § 23. Section 23(¶ 2)(2) in particular provides that no state employee "shall...use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others." For example, should any bill come before the Committee which deals with the provision of legal services by Court-appointed counsel, you should avoid giving it preferential staff treatment.[4]
You also ask whether you may now bill the commonwealth for court appointments you had taken previously but had not been paid for because of your uncertainty as to whether it was permitted by G.L. c. 268A. As long as you were a special state employee when you accepted appointment and as long as you met all the requirements discussed above at the time of your representation, you may be paid for your services.
Lastly, you ask whether the fact that you share office space with an attorney who is a member of the General Court would preclude you from accepting court appointments. The answer to your question hinges on whether or not you and the person you share office space with are considered partners within the meaning of G.L. c. 268A, and on the scope of activities in which your partner participates or has official responsibility for as a state employee. The Commission has held in the past that partnership status is not limited to formal arrangements but that it also may be imputed where the association gives the public appearance of a partnership. See EC-COI-82-68; 80-43. In order to avoid having partnership status imputed, attorneys sharing office space are advised to use separate stationery and business cards, and to refrain from joining their names with others on law lists, telephone directories, or other professional notices other than to list the names of the individuals in the law office on the door of the suite. From the facts you have given, your association with X does not create the public appearance of a partnership. You have complied with the guidelines listed above, and the details of your office expense-sharing arrangement would not be something that the public would be privy to. Even assuming for the sake of argument that you and X would be considered partners, you could engage in the proposed activity. Limitations on the activities of business partners of state employees are set out in § 5(d). Section 5(d) would prohibit you (as a partner) from representing any non-state party in any particular matter in which X participates, has participated in or which is the subject of his official responsibility.[5] As a member of the Committee, X would not participate in or have official responsibility for the court appointment of counsel to indigent criminal defendants.
End Of Decision
