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Opinion

Opinion EC-COI-87-26

Date: 06/30/1987
Organization: State Ethics Commission

A former state employee who has recently become a special assistant attorney general may privately represent a client in the appeal of an adverse ruling by a state agency which will be represented by another bureau in the attorney general's office. Under section 23, the special attorney general is prohibited from disclosing confidential information obtained on the job and from using his official position to benefit his private client.

Table of Contents

Facts

You formerly served as an assistant attorney general. In that
capacity, you served within the ABC bureau. Following the
completion of your services as an assistant attorney general, you
formed a law partnership with XYZ, a former assistant attorney
general, who was assigned previously to the ABC bureau. Both you

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and XYZ have been recently retained by the Attorney General as
special assistant attorneys general to complete certain pending ABC cases. Your work involves three ABC cases and you have no official dealings With the government bureau of the Attorney General's Office. You do not expect to perform services as a special assistant attorney general for more than sixty days.

In your private practice, you have been asked to represent a
state employee whose discharge for absenteeism has been affirmed by the Civil Service Commission. You would represent your client in a court appeal of the adverse ruling, and the defendant state agency would be represented by an assistant attorney general within the government bureau.

Question

Does G.L. c. 268A permit you to represent your client in a
discharge appeal while you also serve as a special assistant
attorney general?

Answer

Yes, subject to certain limitations described below.

Discussion

While you continue to serve as a special assistant attorney
general, you are considered a state employee for the purposes of
G.L. c. 268A. Because of your part. time status, you are also a
"special state employee" within the meaning of G.L. c. 268A, s.1(o)
and are subject, therefore, to certain less restrictive provisions.

Section 4 of G.L. c. 268A generally prohibits a state employee
from representing a private client in a court appeal of a state
agency decision, since the appeal is a matter in which a state
agency is a party. As a special state employee, however, you are
subject to s.4 only with respect to a particular matter in which
you have either participated as a state employee or currently have
within your official responsibility as a state employee, or have
had within your official responsibility during the prior one-year
period.[1] Based on our review of your current and prior
assignments as an assistant attorney general, we conclude that your representation in the discharge case is permissible under s.4.
Specifically, the discharge case was not a matter in which you
participated as an assistant attorney general, nor is it a matter
within your official responsibility in the ABC bureau. Because we
understand that the ABC bureau works independently of the
government bureau, matters handled by the government bureau such as the defense of a state agency discharge decision would not be regarded as within your official responsibility in the ABC bureau.

In addition to s.4, you are also subject to the standards of
conduct contained in G.L. c. 268A, s.23. In relevant part, s.23
requires that you refrain from disclosing to your client or
otherwise misusing confidential information to which you have
access as an assistant attorney general, s.23(c), and from using
your position to secure unwarranted privileges or exemptions of
substantial value for you or your client.[2]

[1] There are further restrictions on the outside activities of
special state employees who serve for more than sixty days in any
365 day period. Because you will be serving for less than sixty
days as a special assistant attorney general, these further
restrictions will not apply.

[2] In certain instances, the Commission may examine whether a
special state employee who also represents private clients in cases
against his own agency, may be "accepting other employment...
inherently incompatible with the responsibilities of his public
office." G.L.c. 268A, s.23(b)(1). Issues under this paragraph could
arise, for example, if the private representation required taking
ideological positions which were inherently incompatible with
ideology required to represent the state effectively. We see no
such incompatibility in your case. In addition, we leave open
whether this subsection would apply were you retained to represent
a client in a matter being handled by the criminal bureau.
 

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