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:
- 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
- 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.