Opinion  EC-COI-85-40

Date:	05/28/1985
Organization:	State Ethics Commission
Location:	Boston, MA

A member of the General Court who is also an attorney in practice of law and employs other attorneys is prohibited under § 4 of the conflict of interest law from representing a client for compensation at a closing relative to the purchase of land from state agency but may represent the client for no compensation in relation to the proposed purchase and sale agreement. The conflict of interest law would allow one of the member’s associate attorneys to perform the proposed work for the client for compensation as long as the associate, rather than the member, personally appeared before the state agency and its representatives.

Facts

You are a member of the General Court. You also are an attorney engaged in the practice of law and you employ other attorneys.

You have been approached by a prospective client to represent him at a closing relative to the purchase of land from state agency ABC. Your anticipated services would include negotiating the purchase and sale agreement with ABC, examining the title, preparing documents to consummate the transaction, and representing the client at the closing.

Questions

1. Does G.L. c. 268A permit you to represent the client for compensation in relation to the proposed purchase and sale agreement?
2. Does G.L. c. 268A permit you to represent the client for no compensation in relation to the proposed purchase and sale agreement?
3. Would you violate G.L. c. 268A if one of your associate attorneys performed the proposed work for the client for compensation?

Answers

1. No.
2. Yes.
3. No, as long as your associate, rather than you, personally appears before ABC and its representatives. However, any fee which you receive from the associate's services, either directly or indirectly, may not be based on the sale price under the contract with ABC.

Discussion

As a member of the General Court, you are a state employee for the purpose of G.L. c. 268A. Section 4 of G.L. c. 268A generally prohibits state employees from receiving compensation from private clients in relation to any particular matter^[1] in which the commonwealth or a state agency is a party. Because ARC is a state agency, a contract between a private party and ABC is a particular matter subject to the § 4 prohibition. However, as a member of the General Court, you are subject to § 4 in the following limited way:

A member of the general court shall not be subject to paragraphs (a) or (c). However, no member of the general court shall personally appear for any compensation other than his legislative salary before any state agency, unless:

(1) the particular matter before the state agency is ministerial in nature; or
(2) the appearance is before a court of the commonwealth; or
(3) the appearance is in a quasi-judicial proceeding.

G.L. c. 268A, § 4 (par. 5).

Based upon the information you have provided, the Commission concludes that your proposed representation is not exempt from § 4. By personally representing your client in the negotiations with ABC or its representatives over the purchase and sale agreement, you would be appearing personally before a state agency. You would not qualify for an exemption with respect to your appearance because

(1) the purchase and sale agreement negotiations are not ministerial in nature but involve the exercise of discretion by the state agency,
(2) ABC is not a state court, and
(3) your appearance is not in a "quasi judicial proceeding" within the meaning of § 4.

Therefore, you would be subject to the § 4 prohibition if you were to receive compensation from your client for your personal appearance.

On the other hand, the relevant restrictions of § 4 apply only to your compensated personal appearances before state agencies, and not to appearances by your employees. The limitation of the § 4 legislator restrictions reflects a concern over potential influence which a legislator could exercise in face-to-face dealings with state agencies over which the legislator has budgetary and legislative power. The potential for such influence is diminished, however, when an employee of the legislator, as opposed to the legislator himself, makes a personal appearance, and the statutory scheme under § 4 does not extend the legislator prohibitions to others. Therefore, your associate's paid representation of your client would not place you in violation of § 4.

Because the proposed purchase and sale agreement is a contract made by a state agency, you must also comply with the restrictions of G.L. c. 268A, § 7 which, in general, prohibit state employees from having a financial interest in a contract made by a state agency. Issues under § 7 will arise only if you receive, either directly or indirectly, any of the compensation which your associate receives for performing legal services in connection with the purchase and sale agreement if you expect to receive such compensation, that level of compensation must be based on hourly fees customarily charged by your associates for such services and may not be based on a percentage of the sale price of the land.

Finally, you should be aware that the restrictions of § 23 apply to members of the General Court. In particular, a member of the General Court may not use his official position to secure an unwarranted privilege or exemption for himself or others, or by his conduct give reasonable basis for the impression that his official actions may be unduly affected by his private relationships. You should keep these principles in mind with respect to your public and private dealings with ABC.


End of Decision

^[1] G.L. c. 268A, s. 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 the enactment of general legislation by the general court."