You are the city solicitor for the City (City), and you and a partner also have a private law practice. Pursuant to § 39 of the charter of the City, the city solicitor has overall responsibility for defending all claims in which the City is an interested party. Recently your sixteen-year-old daughter was a passenger in a car which was involved in an accident with a City police cruiser. She sustained injuries in the accident which remove her from the no-fault provision of the motor vehicle law. It is not yet clear where liability for the accident lies, but it is possible that your daughter may have a cause of action against the City. The police department motor vehicles are insured, and the amount your daughter would seek to recover is within the limits of the policy. You state that the city solicitor's department does not defend any motor vehicle accidents where an insurance company is involved on behalf of the City, although the situation might be different if the amount sought to be recovered exceeded the policy limits. If suit is brought on behalf of your daughter, your spouse would be the nominative plaintiff. You have stated that if suit is filed against the City you would take no part in the handling of the matter either in your official capacity or in your private practice. Should your partner handle the case, your office would not receive a fee.
1. May your law partner handle the settlement and/or liability case on behalf of your daughter?
2. What limitations would be placed on your activities as city solicitor should your spouse pursue an action against the City on your daughter's behalf?
2. You are subject to the following limitations.
As city solicitor, you are a municipal employee. Consequently, you and your law partner are subject to certain provisions of G.L. c. 268A, the conflict of interest law. The section of that law which is applicable to you partner is § 18. That section prohibits the partner of a municipal employee from acting as agent or attorney for anyone other than the city in connection with any particular matter in which the same city is party or has a direct and substantial interest and which is the subject of the municipal employee's official responsibility. Even though the city solicitor's office does not ordinarily become involved in motor vehicle matters in which the City's insurer is involved, the City's charter gives you, as city solicitor, official responsibility for defending all claims in which the City is an interested party. Thus, any action brought against the City by your spouse on your daughter's behalf would be one which would be the subject of your official responsibility. This is true even though you might not personally participate in the matter as city solicitor. See e.g. EC-COI-85-22. Consequently, your law partner is prohibited by § 18 from acting as agent or attorney for your daughter in this matter, as long as the City is involved, regardless of whether suit is actually filed. The fact that your office would not be receiving a fee for its representation would not alter this result.
Because you have stated that you would have no part in the handling of this matter either through your official office or through your private practice, it is not necessary here to discuss the provisions of §§ 17 or 19 of G.L. c. 268A. You should, however, be aware of § 23 which contains general standards of conduct applicable to all state, county and municipal officials. It provides in pertinent part that no employee shall use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others. It also provides that no municipal employee shall, by his conduct, give reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is unduly affected by the kinship, rank, position or influence of any party or person. These provisions would be implicated if, for example, your daughter's claim were to receive special consideration or treatment from the city solicitor's office. See e.g. EC-COI-84-97. Section 23 also prohibits a municipal employee from disclosing confidential information acquired in the course of his employment, and use of such information to further his personal interests. See generally, EC-COI-84-16. Should your daughter's claim reach the city solicitor's office, you should take measures to screen yourself completely from the matter. We also recommend that you notify your appointing official at that time both of the claim and of the steps you have taken to avoid contact with the matter.
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