Ethics Opinion

Opinion No. 78-7

July 1978

Summary: Under the existing disciplinary rules of the SJC an attorney who is an employee of the Department of Mental Health (DMH) would not be prohibited from providing legal services to patients or former patients of the DMH unless (1) the attorney had substantial responsibility as a DMH employee for any of the services provided by the DMH to the patient or former patient, (2) the interests of the prospective client differed in any way, actually or potentially, from the interests of the DMH. This latter prohibition extends not only to patients and former patients at the facility where the attorney is employed, but also to all other patients and former patients of the DMH. The inquiry does not raise the issue of whether the attorney is using his employment at the DMH to "funnel" potential clients to his law practice contrary to DR 2-102(E).
Also potentially applicable are certain statutory provisions such as G.L. c.268A. Construing these statutes is beyond the function of this committee.

Facts: An attorney works as a full-time social work supervisor at a DMH school for the retarded. His work involves supervising workers of lesser experience, working with parents, counseling retarded children, and a variety of other miscellaneous duties. He does not work with mentally ill persons.
During eight years of employment as a DMH employee, he has received many referrals from parents of retarded children who are or have been patients at the school where he works. The legal advice sought often concerns the children and includes wills, trusts, guardianship and related matters. The attorney also receives requests for legal representation from current and former patients of another DMH facility which treats mentally ill persons. The attorney seeks to develop a law practice which includes mentally retarded and mentally ill clients, and he also plans to continue as a DMH employee.
The attorney asks:
(1) To what extent would G.L. c.268A, SS 4, 4a, and 6 prohibit him from servicing former patients of the school?
(2) To what extent would he be prohibited from providing legal services to persons currently receiving service from the school?
(3) To what extent would he be prohibited from providing legal services, including defense against involuntary commitments, for mentally ill persons at another DMH facility? The involuntary commitment proceedings are usually prosecuted by the attorney general's office on behalf of the commonwealth.

Discussion: (1) The interpretation of G.L. c.268A is a question of substantive law and thus beyond the jurisdiction of the committee.
(2) These inquiries do not raise the question of whether the attorney is using his DMH position to "funnel" clients to his private practice contrary to DR 2-102(E). The proper scope of DR 2-102(E) is currently under review by the SJC.
(3) Canon 9 "... admonishes lawyers to avoid even the appearance of professional impropriety." See Opinion 76-9. Although DR 9-101(B) is cast in the past tense in prohibiting an attorney from accepting "private employment" as to matters which the attorney "had substantial responsibility" while a public employee, the spirit of that rule would also preclude acceptance of private employment in matters where the attorney has "substantial responsibility" while currently working as a public employee. ABA Formal Opinion 342 (1975) has construed the term "matter" to encompass "a discrete and isolatable transaction or set of transactions between identifiable parties," and the term "substantial responsibility" to mean involvement "to an important, material degree, in the investigative or deliberative processes regarding the transactions of facts in question." Id. at 6. Thus, where the attorney has not dealt with a particular individual who is currently receiving service at the school where he works, we do not believe that his mere knowledge or understanding of the operations at the school would be sufficient to preclude him under DR 9-101(B) from representing such a person.
We hasten to add, however, that such representation cannot be properly undertaken where the interests of the DMH differed, actually or potentially, from the interests of a person currently at the school. In addition to the prohibition of DR 9-101, the attorney should also be guided by DR 5-105(A) which requires attorneys to "... decline proferred employment if the exercise of his independent professional judgment ... will be or is likely to be adversely affected." See also EC 5-18.
Since the attorney is an employee of the DMH, it would be improper within the meaning of DR 9-101(B) to represent a person in an involuntary commitment proceeding which is brought on behalf of the DMH by the attorney general. This is quite apart from the provisions of G.L. c.268A, S4. Whenever a public employee acts as an attorney for a person in an adversary proceeding involving his employer, his conduct "... has a tendency to diminish public confidence in the legal system or in the legal profession ... ." EC 9-2. See DR 5-105(A). These rules would not prohibit the attorney from rendering legal services to patients or former patients of other facilities of the DMH if the interests of the DMH do not differ, actually or potentially, from the interests of the patients or former patients.

Permission to publish granted by the Board of Delegates, 1978. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.