Ethics Opinion

Opinion No. 82-6

June 1982

Summary: A lawyer who is also a member of the Massachusetts legislature may represent clients before governmental entities, including state agencies, provided that (1) the representation does not violate G.L. c.268A, (2) the lawyer does not use his position as a legislator to influence or attempt to influence the governmental entity to act in favor of the client, and (3) the lawyer neither states nor implies that he is able to influence the governmental entity improperly or upon irrelevant grounds.

Facts: A member of the General Court would like to practice law on a part-time basis with two of his friends. It is expected that the proposed law firm would attract clients whose interests would require representation before federal, state and local administrative authorities, both in formal adjudicatory and rule-making proceedings, and in negotiations for permits and licenses. The inquiring lawyer has asked what limitations are imposed by the Disciplinary Rules upon his concurrent service as a legislator and practice of law before governmental entities.

Discussion: Under SJC Rule 3:07, the restrictions that result from the lawyer's service as a legislator are different from those that result from an attorney's legal representation of the commonwealth. In particular, service as a legislator would not generally subject the lawyer to duties to the commonwealth under Canons 4 and 5. It might, however, give rise to certain fiduciary duties to the commonwealth that could be compromised by his representation of private interests against the state. These duties are matters of substantive law that the committee cannot address. Also the application of G.L. c.268A to a public official's representation of private clients raises questions of substantive law beyond the purview of this committee.
G.L. c.268A, Section 4 does impose stringent restrictions upon a legislator's legal representation of private clients before state agencies for compensation. A violation of this statute might also constitute a violation of DR 1-102(A)(4) and DR 7-102(A) (8). The State Ethics Commission has proposed amendments to Chapter 268A that, if enacted, would further restrict such representation. See Mass. Lawyers Weekly, Feb. 8, 1982, p. 1.
Obviously, Chapter 268A is not dispositive as to representation before federal and certain local entities, nor as to representation before all state agencies. Here, DR 8-101(A)(2) provides that a lawyer who holds public office shall not: "Use his position to influence, or attempt to influence, a tribunal to act in favor of himself or a client." Thus it is not the public official's position, but only the use of his position to influence or attempt to influence, that constitutes a violation of this rule. The lawyer likewise cannot state or imply that he is able to influence the action of a governmental entity improperly or upon irrelevant grounds. See DR 9-101(C).
Because the problems discussed above are the result of the lawyer's status as a legislator, the committee does not believe that his partners should be barred from all practice before such agencies. It would, of course, be improper for one of his partners to state or imply that he was able to influence the agency because of his affiliation with the legislator. See DR 9-101(C). The legislator, however, should have nothing to do with a matter engaged in by one of his partners, if the legislator could not handle it personally, nor should the legislator's compensation be affected by the firm's handling of the matter.

Permission to publish granted by the Board of Delegates, May 6, 1982. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.