Lawyers who are legislators face conflicts

Some do not report potential complications

By Michael Levenson
Globe Staff / July 4, 2011

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One legislator served as a lawyer for construction and paving firms that had state highway contracts. At the same time, he led the committee that sets transportation policy.

Another represented workers with asbestos claims while he debated workers’ compensation legislation in the House.

The 52 lawyers who serve in the state Legislature juggle a briefcase full of potential conflicts as they represent individuals or companies with significant business before the state, ranging from liquor licenses to bridge repair contracts.

Even within the boundaries of the law, they often perform work in their law offices that closely overlaps with their work at the State House.

The recent corruption case of former House speaker Salvatore F. DiMasi cast a harsh light on the potential for abuse by legislators with law practices.

DiMasi, a criminal defense attorney, was convicted of taking $65,000 in kickbacks in exchange for rigging a state contract. He had argued the payments were legitimate referral fees for sending business to his law partner.

“The lawyer-legislator issue always has the potential for conflicts, either in appearance or substance,’’ said Scott Harshbarger, a former state attorney general. “The other side is: The rules are very clear.’’

State law forbids legislators with legal practices from appearing before most state agencies on behalf of clients, if they are getting paid for their work.

Legislators are also barred from acting on budget items and bills that benefit a single community or entity, if they or their law partners have a financial interest. Those are all considered substantive conflicts.

However, in cases where the legislators’ legal work may only give the appearance of a conflict, they must simply disclose it to the State Ethics Commission or to the House or Senate clerk. Then they are free to act.

Yet some legislators never take even that step.

The chairs of the Judiciary Committee, Representative Eugene L. O’Flaherty and Senator Cynthia Stone Creem, have never disclosed a conflict related to their law practices, even though they oversee bills regulating judges, jurors, and fellow attorneys.

Creem, a Newton Democrat, has been Senate chair of the committee since 2009. At the same time, she has had a family law practice, handling divorces, alimony, and child support. This year, she is overseeing a major overhaul of alimony laws.

She said she resolved her unease about her dual roles by consulting privately with the Ethics Commission, an approach that many legislators use to quietly assure themselves that they are not violating the conflict of interest law. The Ethics Commission refuses to publicly discuss those inquiries.

“I asked the Ethics Commission, and I don’t have a conflict because I’m not paying alimony or receiving alimony, so I have no personal gain or loss,’’ she said. In general, she said, “I’m very nervous about that, so I seek opinions.’’

O’Flaherty, a Chelsea Democrat, has been House chair of the Judiciary Committee since 2002. At the same time, he has been a lawyer, handling, he said, civil lawsuits and criminal defense.

O’Flaherty said he has encountered only one potential conflict, in 2005, when he was defending drunk drivers in court while reviewing Melanie’s Law, a tough drunken driving bill.

Like Creem, he consulted privately with the Ethics Commission, which told him it was acceptable for him to handle both jobs at once because Melanie’s Law affected the entire court system, not just his practice.

But critics say that such arrangements, even if legal, may not serve the public interest.

“On a gut level, of course, there’s something a little off about a practicing criminal defense lawyer having utter control over what bills get out of committee and what bills become law, because that person’s professional life outside the Legislature will be affected, one way or another, by what bills ultimately become law, ’’ said Daniel P. Haley, a former legal aide to Governor Mitt Romney, who helped draft Melanie’s Law. “It gives rise to this question of whether legislators are representing their constituents or their clients in any given decision.’’

Speaker Robert A. DeLeo, who oversees nearly every bill and budget item in the House, has never disclosed any conflicts from his law practice in Revere.

DeLeo, who has served in the House for 20 years, has a “limited solo practice focused primarily on real estate closings,’’ said his spokesman, Seth Gitell. While DeLeo has filed disclosures on issues not related to his law practice, Gitell said, “to the best of his knowledge, he has no further information which required disclosure.’’

Haley said it is hard to believe veteran lawyer-legislators have never encountered even one conflict that would require them to file a disclosure.

“The problem is you’ve got these legislators who convince themselves that there’s total separation between their two lives, so they don’t need to file disclosures when, from a common-sense level, it seems artificial,’’ he said. “You think, ‘how can that be?’ ’’

There has been no major push to toughen the disclosure rules in Massachusetts, which relies on lawyer-legislators to judge when they must reveal potential conflicts. But Congress forbids its members from practicing law, and some states impose tougher requirements.

In New York, Governor Andrew Cuomo, responding to a series of ethical scandals, recently pushed through legislation that requires legislators with law practices to disclose the names of clients they represent in matters before the state. California and Washington have similar laws.

“You want to know that your legislators are independent, and knowing who their clients are outside of government, and their sources of income outside of government, is part of that story,’’ said Gregory G. Ballard, a lawyer who helped write a report on disclosure requirements for the New York City Bar Association. “The public should be entitled to know those kinds of facts.’’

Lawyers have fought such requirements, arguing they violate attorney-client privilege. But New York’s bill allows legislators to petition a panel if they want to keep a client’s name private - for example, to protect a victim of domestic violence.

In Massachusetts, Senator Steven A. Baddour, a Methuen Democrat, has been relatively open about disclosing potential conflicts. Until earlier this year, he was the chair of the Transportation Committee. At the same time, he was doing legal work for construction and paving firms with state highway contracts.

In one of at least six disclosure forms he has filed, he revealed that he helped one of his clients, Methuen Construction Co., get a meeting with the Massachusetts Highway Department. The firm’s owner, who is a friend, wanted to get on the department’s list of prequalified bidders for construction work, he said.

But Baddour said he did not have a substantive conflict between his law practice and his legislative duties.

“In no case did I represent any of those entities before MassHighway or any state agency,’’ he said. “The representation was not state-related.’’

Representative Garrett J. Bradley, a Hingham Democrat, similarly disclosed that his law firm was handling workers’ asbestos claims at the same time he was considering workers’ compensation legislation. His guiding principle, he said: “When you’re in doubt, disclose it.’’

Michael Levenson can be reached at Follow him on Twitter @mlevenson