Ethics Opinions

Opinion No. 76-9

Summary: A lawyer who is a "municipal employee" of a city or town as defined in G.L. c.268, S1(g) may not undertake to represent a client in prosecuting any claim against the same city or town, or in connection with any particular matter in which the same city or town is a party, or has a direct and substantial interest. He may do so, however, subject to the limitations in G.L. c.268A, S17, if he has been classified as a "special municipal employee" as provided in G.L. c.268A, S1(n), unless (a) the employment involved a matter which foreseeably might involve his future participation as a "municipal employee," or become the subject of his official responsibility, or (b) he is at the time (or in some circumstances has been) counsel for the same city or town.

Facts: A lawyer serving as a part-time assessor in a town has been asked to represent a resident of that town in opposition to a land development project in the town. This project can only go forward if approved by the town's planning board and possibly by other boards and departments of the town as well. The lawyer considers his work as a part-time assessor to be in the nature of work pro bono publico. He questions whether there would be a real or apparent conflict of interest in undertaking such representation, and states that he would refrain from acting in his capacity as an assessor with respect to any matters involving his client in the future.

Discussion: Canon 9 of the Canons of Professional Responsibility admonishes lawyers to avoid even the appearance of professional impropriety. DR 8-101 and 9-101 make it quite clear that lawyers serving as public officials, whether on a full- or part-time basis, must be especially careful to avoid activities where their personal or professional interests are or may be in conflict with their public responsibilities, or where they may be using their public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.
But we do not have to rely solely upon these general statements to decide the question before us. The legislature in G.L. c.268A has undertaken to define the limits of proper action by a "municipal employee" (including the lawyer who serves as part-time assessor here involved) in acting either as lay agent or as attorney for anyone vis-a-vis his same city or town. Unless the lawyer is at the time (or in some circumstances has been) counsel to his same city or town--as to which see our Opinion 75-7--we do not believe the fact that the "municipal employee" in question is a lawyer should impose on him greater restrictions (apart from those the above-mentioned provisions in DR 8-101 and 9-101) than are imposed by G.L. c.268A on a "municipal employee" who is not a lawyer, in connection with representing anyone vis-a-vis his city or town.
We therefore refer the inquirer to the provisions of G.L. c.268A, S17, which would bar the inquirer, as a "municipal employee" as defined in Section 1(g), whether full- or part-time, from taking the case in question, unless he has been classified as a "special municipal employee" as defined in Section 1(n). If classified as a "special municipal employee" there are still certain restrictions imposed by Section 17 with regard to the matters in connection with which he may represent anyone vis-a-vis his same city or town.
But the inquirer's offer to refrain from acting in his capacity as assessor with respect to any matters involving his client in the future does not clear the way for this particular assessor to represent a resident of his same town in opposition to a land development project in the town. As an assessor, it is foreseeable that he may be required to reassess the property involved in his representation of his client. Questions of fairness and impartiality are bound to arise, if this happens.
It is no answer that the official involved may refrain from acting on any matter involving representation of a present or former client. A public official has the obligation to carry out his duties with respect to all members of the public, and not just with respect to those with whom he has had no professional relationship. Similarly, it is no answer to characterize holding a public office as being in the nature of an activity pro bono publico, simply because the remuneration is minimal and the duties are part-time. Public office and the duties attendant thereon cannot be so minimized and thus held to some lower standard.
This conclusion is supported by G.L. c.268A, S23(a), which provides the following standard of conduct: "No officer or employee of a state, county or municipal agency shall: (a) accept other employment which will impair his independence of judgment in the exercise of his official duties ... ." We also note that EC 8-8 provides in part: "A lawyer who is a public officer, whether full- or part-time, should not engage in activities in which his personal or professional interests are or may be in conflict with his official duties."


Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.
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