You are a private attorney and are a partner with a law firm. One of your partners, XYZ, formerly served as the city solicitor for the city (City) and thereafter as special counsel to the City more than one year ago. As city solicitor, XYZ represented the City in an attempt to collect overdue taxes for certain years on property owned by a realty trust. You now represent a potential purchaser of the property and expect to negotiate with the City over the amount of overdue taxes which will be paid to the City out of the proceeds of the sale. The negotiations would cover overdue taxes from the same period in which XYZ sought collection.
Does G.L. c. 268A permit you to represent your client in negotiating with the City over the amount of overdue taxes which the City will receive?
Yes, subject to certain limitations. However, the Code of Professional Responsibility may establish additional limitations on your activities.
Following XYZ's completion of his services as city solicitor and special counsel to the City in January, 1984, he became a former municipal employee for the purposes of G.L. c. 268A. Under § 18(a), he is prohibited from receiving compensation from or acting as agent or attorney for any non-City party in relation to any particular matter[1] in which he previously participated as a municipal employee. The determination of the amount of overdue property tax on the property is a "particular matter." Because XYZ previously participated in that determination and in proceedings related to that determination, he is now prohibited by § 18(a) from representing a private client in relation to that matter.
As a partner of a former municipal employee, you share some of the restrictions which apply to XYZ. Specifically, for a one-year period following the termination of XYZ's employment with the City, you may not engage in any activity in which XYZ is himself prohibited from engaging by § 18(a). Because your proposed representational activity will occur more than one year after the last date of XYZ's employment with the City, you are not subject to the § 18(c) prohibition.[2] Two additional points should be made. Although your proposed activities are not expressly prohibited by § 18(c), you are also subject to the restrictions of the Code of Professional Responsibility. Under Canon 9, DR-9-101(B) appearing in Supreme Judicial Court Rule 3:22, 359 Mass. 829 (1971), a lawyer may not accept private employment in a matter in which he had substantial responsibility while a public employee. You should ascertain from other sources such as the Massachusetts Bar Association whether, as a partner, you will be deemed to share the former employee's disqualification. See, United States v. Standard Oil Co., 136 F. Supp. 345, 360 (S.D. N.Y., 1955).
Second, assuming that you are otherwise permitted to pursue your proposed activity, XYZ must not only refrain from assisting you or acting as attorney or agent for the client in relation to the tax negotiations, but must also be removed from any share of the fees which you will receive for your representation. The § 18(a) prohibition on XYZ's receipt of compensation includes "any money, thing of value or economic benefit conferred on or received by any person in return for services rendered or to be rendered by himself or another." G.L. c. 268A, 11(a) (emphasis added). As long as XYZ is a partner and may potentially share the assets of the partnership, including the fees received by you, he will be receiving "compensation" for the purposes of § 18(a). See, Buss, The Massachusetts Conflict of Interest Law: An Analysis, 45 B.U.L. Rev. 299, 349 (1965); Braucher, Conflict of Interest in Massachusetts in Perspectives of Law, Essays for Austin Wakeman Scott, 22 (1964). To avoid placing XYZ, in violation of § 18(a), you should therefore segregate, from the partnership assets which XYZ would otherwise share, the fees which you will receive from the client for the tax negotiations.
End Of Decision
