May a former city attorney who defended the city in nuisance suits over its sewage plant later represent those same plaintiffs suing the city for continuing the same nuisance?

Plain-English summary

About a year and a half earlier, the inquirer had served as city attorney and, in that role, defended the city against several suits seeking damages for maintaining a nuisance through its sewage disposal plant. Some of those plaintiffs now wanted to hire him to sue the city for damages from the continuation of the same nuisance, arising after his term. He asked whether his prior defense disqualified him, noting that none of the new damages could have been part of the earlier actions.

The Board concluded he could not accept the employment. It quoted Rule 38, barring a former public officer from later accepting employment in any matter he had investigated or passed upon in office, and Rule 8, providing that the duty of undivided fidelity and against divulging confidences also forbade later employment from others in matters adversely affecting an interest of the client as to which confidence had been reposed. Under "the clear provisions of the foregoing rules," the Board held the member of the bar could not take the case.

Currency note

This opinion was issued in 1936, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rules cited here, Rules 38 and 8, belong to that superseded canon-era code and do not map onto the current Oklahoma rules governing former government lawyers, former clients, and confidentiality. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a former city attorney later sue the city he once defended?

A: Not on these facts. The opinion held that representing plaintiffs against the city over the same nuisance he had defended was barred by Rules 38 and 8.

Q: Did it matter that the new damages arose after his term ended?

A: The opinion held it did not change the result. Even though the new damages postdated his service and could not have been part of the earlier suits, the matter was one he had passed upon and defended in office.

Background and rules framework

The opinion applied Rule 38, barring a former public officer from later employment in a matter he investigated or passed upon while in office, and Rule 8, tying the duty of undivided fidelity and confidentiality to a bar on later adverse employment. Both were drawn from the ABA Canons of Professional Ethics. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 38 (1929 Oklahoma Rules of Professional Conduct): a former public officer should not later accept employment in a matter he investigated or passed upon in office.
• Rule 8 (1929 Oklahoma Rules of Professional Conduct): the duty of undivided fidelity and against divulging confidences forbids later employment in matters adversely affecting a client's interest as to which confidence has been reposed.

See also

• Okla. Bar Ethics Op. 100: Former judge representing an estate administrator
• Okla. Bar Ethics Op. 102: Liquidating agent suing the State over another bank
• Okla. Bar Ethics Op. 42: Consent does not cure the former-government-lawyer bar

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-106/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted February 28, 1936

The Board is in receipt of the following inquiry:

"During a prior City of ………… Administration,–approximately a year and a half ago–I was the City Attorney of the City of …………. At that time a number of suits were filed against the City of ……… to recover damages for the maintenance of a nuisance in the conducting of their sewage disposal plant, which actions I defended for the City as its Attorney.

Some of the parties plaintiff in those actions desire, at this time, to employ me as their attorney to institute action in their behalf seeking to recover damages from the city of ………… for the continuation of this same nuisance.

My office as City Attorney having expired and these actions being for the recovery of damages since the time of my service as City Attorney for the City of …………, does the fact that the damage is occasioned to the plaintiffs by the continued maintenance of this same nuisance in any manner disqualify me to act as the Attorney for the complaining parties, by reason of the fact that the damages are occasioned by the continuance of the same nuisance?

Necessarily none of the damages sought to be recovered could have been incorporated in the cause of action in the various actions defended by me."

In response:

Rule 38 of the Rules of Professional Conduct provides:

"A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter that he has investigated or passed upon in said office or employ."

Rule 8 provides:

"The obligations to represent the client with undivided fidelity and not divulge his secrets or confidences forbids also the subsequent acceptances of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."

Under the clear provisions of the foregoing rules, the inquiring member of the bar may not accept the employment offered.