Ethics Opinion

Opinion 2014-1

January 2014

Summary: The ability of civilian lawyers employed by the Department of the Navy who have been designated for furlough leave for budget purposes to give advice to the Navy on matters relating to furlough policy as well as non-furlough matters is a matter of federal, not Massachusetts, professional responsibility law.

Facts: The Committee on Professional Ethics has received a number of inquiries from Massachusetts-licensed lawyers serving as civilian employees of the Navy at various naval installations outside Massachusetts concerning the effect of the furlough policy being implemented by the Department of Defense. These inquiries have been prompted by a directive from Navy General Counsel's Office that its civilian lawyers seek advice from the jurisdictions in which they are licensed about what the professional responsibility rules of those jurisdictions provide as to potential conflicts of interest. More particularly, we are being asked whether the fact that the inquiring lawyers themselves face furlough affects their ability to give legal advice to the Navy about furlough policy and about non-furlough matters. Our opinion has been sought with respect to a wide variety of legal advice and activities that the inquirers might be called upon to undertake at a time when they might have a personal stake, and possibly an active role, in actions brought to contest the furloughs.

We are told that the Secretary of the Navy has given a conflict waiver that would permit the giving of advice to Naval "clients" in a variety of situations providing that certain qualifications are met. We are also told that a formal opinion has been sought from the Office of Legal Counsel with respect to effectiveness of the client waiver to resolve any professional responsibility problems for its civilian lawyers.

The committee's website explains its role: "The committee only gives advice. It is not a governmental body and its advice has no binding force, although successive bar counsel have stated that as a general rule, they will not take disciplinary action against lawyers who follow the committee's advice if they have given the committee all the relevant facts. That, however, is a matter of bar counsel's policy, not of committee power. As might be expected when the subject matter involves sensitive questions of lawyers' obligations, bar counsel has very occasionally expressed public disagreement with the committee's views."

The questions being asked by the various civilian attorneys for the Navy all relate to their professional conduct as federal lawyers in situations where their only relationship to Massachusetts is that they are licensed to practice law in Massachusetts. The first question for us is what law of professional responsibility the Supreme Judicial Court would apply in considering the questions being raised. That court has adopted a nonstandard choice of law rule with respect to professional responsibility matters. Our version of the ABA's Model Rule 8.5(b) reads as follows:

In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

  1. for conduct in connection with a matter pending before a governmental tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
  2. for any other conduct, the rules of the jurisdiction in which the lawyer's principal office is located shall be applied, unless the predominant effect of the conduct is in a different jurisdiction, in which case the rules of that jurisdiction shall be applied. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.

It seems difficult to view Massachusetts as the principal office for any of the lawyers who have inquired about the furlough policy, but in any event the predominant effect of the conduct involved would seem to be where the inquirer is operating or perhaps it is simply the nerve center of the whole Naval establishment. Wherever the predominant effect is, it does not seem to be Massachusetts. The essential conflict of interest question is likely to turn, in most situations, on the validity of the waiver of the rules under federal law and on the ability of the inquiring lawyers to comply with the conditions imposed by the Navy on the effectiveness of the waiver. We may not, under the rules that govern this committee, advise with respect to substantive law issues or with respect to any kind of law of another jurisdiction. Massachusetts law ought to apply with respect to the furlough inquiries only if a professional responsibility issue arises in the course of relevant litigation in a Massachusetts court.

Whatever other state jurisdictions are doing, we think that the best advice that we can give Massachusetts lawyers working as civilian employees for the Navy is that under our Rules of Professional Conduct federal, not Massachusetts, professional responsibility law governs their conduct in giving advice to the Navy in the furlough inquiries that have been put to us.

This advice is that of a committee without official government status.

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on May 8, 2014.