Could a sitting mayor take an assigned share of the contingent fee in the city's own litigation and then vote, as a commissioner, on its settlement?

Plain-English summary

In a disciplinary proceeding, certain lawyers had contracted with a city to represent it on a contingent basis in damage suits the city would bring. Afterward "X," another lawyer of that city, was elected to the city commission and became mayor. He then sought to associate with the city's lawyers in the litigation and did so under an arrangement by which they assigned him an interest in the previously stipulated contingent fee. X took part in the litigation, which settled, and the settlement had to be approved by the city commission of which X was a member.

The Board condemned X's conduct on three grounds. First, although X did not contract directly with the city, his participation as an attorney for the city, for a consideration, while a member of the commission violated Oklahoma public policy as declared by Section 5963, O.S.1931 (62 Okl. St.Ann. § 371), which voids municipal contracts in which a board member is interested. Second, by interpolating himself into the litigation, X violated Rule 9, which interdicts "efforts, direct or indirect, in any way to encroach upon the business of another lawyer." Third, when the commission had to approve or disapprove the settlement, X acted on it, placing himself where his interest in his portion of the contingent fee might have unduly influenced him, even subconsciously, in judging the settlement's merits; the Board reiterated that a member of the bar must avoid not only impropriety but the appearance of impropriety and refrain from creating a condition that might bring reproach on the profession.

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 statute it relied on, Section 5963 of the 1931 Oklahoma Statutes, and Rule 9 of that era may since have been amended or renumbered. Subsequent rule and statutory amendments or 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 Treat this page as historical context, not current guidance.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 city official share in the fee for the city's own lawsuit?

A: No. The Board condemned a mayor who took an assigned share of the city's contingent fee, finding it contrary to Oklahoma public policy against self-interested municipal contracts.

Q: Why was voting on the settlement a problem?

A: The opinion reasoned that, as a commissioner acting on the settlement, X's interest in his share of the fee might have unduly influenced his judgment, even subconsciously, creating at least the appearance of impropriety.

Q: What did Rule 9 add?

A: The opinion held that by inserting himself into litigation already handled by other lawyers, X encroached on another lawyer's business in violation of Rule 9.

Background and rules framework

The opinion applied Rule 9 of the canon-era Oklahoma Rules of Professional Conduct (encroaching on another lawyer's business) together with Section 5963, O.S.1931 (62 Okl. St.Ann. § 371), Oklahoma's bar on self-interested municipal contracts, and the duty to avoid the appearance of impropriety. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 9 (1929 Oklahoma Rules of Professional Conduct): interdicts efforts, direct or indirect, to encroach upon the business of another lawyer.

Statutes:

• Section 5963, O.S.1931 (62 Okl. St.Ann. § 371): no town or city board may make a contract with, or in which, any of its members is directly or indirectly interested; such contracts are wholly void.

See also

• Okla. Bar Ethics Op. 111: A town trustee serving as the town's paid attorney
• Okla. Bar Ethics Op. 90: Prosecutor with a personal interest in the case

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-112/

Original opinion text

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

Adopted June 19, 1936

In a disciplinary proceeding recently heard by the Board of Governors it appeared that certain members of the bar of a city in this state had entered into a contract with the city to represent it upon a contingent basis in connection with certain suits to be brought by the city to recover damages in its behalf. Thereafter "X", another member of the bar of said city, was elected a member of the city commission. He qualified and became the mayor of the city. Thereafter, he declared his desire to become associated with the members of the bar employed by the city in the litigation aforesaid. As a result, he became associated with them upon an arrangement whereby the other members assigned to him an interest in the previously stipulated contingent fee. "X" engaged in the litigation, which resulted in a settlement thereof, which, of course, had to be approved by the city commission of which "X" was a member.

The conduct of "X" is condemned.

Section 5963, O.S.1931, 62 Okl. St.Ann. § 371 provides:

"No board of county commissioners, nor city council nor board of trustees of any township, or town, nor any district board of any school district in this State shall make any contract with any of its members, or in which any of its members shall be directly or indirectly interested; and that all contracts made in violation of this section shall be wholly void."

While it does not appear that "X" contracted directly with the city, his participation in the litigation as an attorney for the city, for a consideration, while he was a member of the city commission was in violation of the public policy of the State of Oklahoma as declared by Section 5963 supra.

By this action in interpolating himself into the litigation, "X" was also guilty of a violation of Rule 9 of the rules of professional conduct which interdicts "Efforts, direct or indirect, in any way to encroach upon the business of another lawyer", as unworthy of member of the bar.

Furthermore, when it became necessary for the city commission to approve or to disapprove the proposed settlement of the litigation, "X", as a member of the commission, acted thereupon. By so doing he placed himself in a position where his interest in securing his portion of the contingent fee might easily have unduly influenced him, even though subconsciously, in his determination of the merits of the proposed settlement. As the board has repeatedly said, "It is the duty of a member of the bar, not only to avoid all impropriety, but also to avoid the appearance of impropriety". Furthermore, a member of the bar shall refrain from creating a condition, regardless of express prohibition, which might tend to bring you all reproach on the profession.