Opinion

Opinion EC-COI-85-46

Date: 05/28/1985
Organization: State Ethics Commission

A county employee who is also a private attorney may represent clients by submitting deeds for recording in his county's Registry of Deeds, because the Registry (a county agency) does not have a direct and substantial interest in the filing. He must exercise caution, however, to ensure that he does not use his official position to secure unwarranted privileges.

Table of Contents

Facts

You are an employee of a county (County) and also have a part-time real estate and conveyancing law practice. You have been asked to represent clients in matters involving the purchase and sale of property in the County. Among your anticipated responsibilities as attorney is the submission of deeds and other appropriate documents for recording in the County Registry of Deeds (Registry). The Registry is headed by a Registrar of Deeds elected by the voters of the County. For the purposes of recording, the Registry's function is ministerial and involves a review of whether a deed submitted for recording facially satisfies the statutory standards of G.L. c. 183, § 6.[1] The Registry does not conduct an independent investigation or review of the terms of the sale nor does it make a formal decision with respect to the submission. Once the Registry accepts a deed submitted for recording, the Registry plays no further role aside from ministerial indexing functions.

Question

Does G.L. c. 268A permit you to submit deeds for recording with the Registry?

Answer

Yes, although you will be subject to certain limitations described below.

Discussion

In your capacity as an employee of the County, you are a county employee for the purposes of G.L. c. 268A. Two sections of G.L. c. 268A are relevant to your situation.

The first, G.L. c. 268A, § 11, prohibits you from either receiving compensation from or acting as agent or attorney for a private client in connection with any particular matter[2] in which the County or an agency of the County is a party or has a direct and substantial interest For example, you could not represent a client in contract negotiations with a County agency, because that agency would be a party to the particular matter. While the determination of whether a county agency is a party to a particular matter is relatively straightforward, the determination of whether an agency's interest in a matter is direct and substantial is frequently less obvious. Compare, Commonwealth v, Mello, 11 Mass. App. Ct. 70 (1980) (city does not have a direct and substantial interest in the prosecution of a state law violation which occurred in the city); EC-COI-84-9 (state appellate tax board has a direct and substantial interest in pending appeals of local assessments, abatement classifications and exemption determinations).

If the interest of a county agency in a matter is too remote or tenuous, the prohibition of § 11 does not apply. See, Buss, The Massachusetts Conflict of Interest Law: An Analysis, 45 B.U.L. Rev. 299, 331 (1965). The filing of documents with the Registry for recording is such a matter. The Registry's role contrasts with the institutional decision-making role which the Appellate Tax Board plays in reviewing and deciding the merits of pending applications. The Registry has no stake in the filing beyond ministerial processing, and whatever interest the Registry has in the filing is not "substantial." Therefore, as long as the Registry's role remains limited to its current facial review and indexing, the Registry will not have a direct and substantial interest in any filing.[3]

The second, G.L. c. 268A, § 23 prohibits you from using your official position to secure an unwarranted privilege for yourself or others. While this provisions is largely self-explanatory, you should be aware that it prohibits the expediting of filings or affording you opportunities which are not available to other attorneys. For example, you may neither request nor accept preferential treatment in the processing of your filings, either in the period in which you would wait in line for filing or in acceptance of personal checks.

 

End Of Decision

[1] G.L. c. 183, § 6 provides as follows:

Every deed presented for record shall contain or have endorsed upon it the full name, residence and post office address of the grantee and a recital of the amount of the full consideration thereof in dollars or the nature of the other consideration thereof, if not delivered for a specific monetary sum, the full consideration shall mean the total price for the conveyance without deduction for any liens or encumbrances assumed by the grantee or remaining thereon. All such endorsements and recitals shall be recorded as part of the deed. Failure to comply with this section shall not affect the validity of any deed. No register of deeds shall accept a deed for recording unless it is in compliance with the requirements of this section.

[2] 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, attest, decision, determination, finding. but excluding enactment of general legislation by the general court.

[3] In your opinion request, you review those portions of G.L. c. 268A which apply the outside representation prohibitions less restrictively to legislators in court proceedings. Those provisions are not analogous to your situation.

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