After representing taxpayers who fought a school-district annexation, could the lawyer later represent the annexing district resisting their effort to withdraw?

Plain-English summary

The inquiring lawyer had represented a group of taxpayers in a school district who contested the district's annexation to another district. He lost, and the Supreme Court ordered the annexation. Some taxpayers of the district he had indirectly represented now sought to withdraw from the district to which it had been annexed, and the lawyer was asked to represent the school district resisting that withdrawal. He noted that the taxpayers he had represented had paid him and that there were no unfinished duties in the first proceeding, and asked whether taking the new employment would be improper.

The Board concluded it would be improper to accept the employment. It pointed to Rule 8, under which the obligation of undivided fidelity and not divulging a client's confidences "forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed," and to Rule 39, which interdicts accepting the employment "even though there are other available sources of information."

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 The rules cited here belong to that superseded canon-era code, though their former-client confidence principle persists in the modern rules on duties to former clients. Subsequent rule 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 Treat this page as historical context, not current guidance.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 the lawyer take the new matter because the first one was finished and paid?

A: No. The opinion held that Rule 8 bars later employment adverse to a former client as to whom confidence was reposed, regardless of the first matter being concluded and paid.

Q: Did it matter that the same facts were available from other sources?

A: No. The Board cited Rule 39, which interdicts accepting the employment even though there are other available sources of information.

Background and rules framework

The opinion applied Rules 8 and 39 of the canon-era Oklahoma Rules of Professional Conduct: Rule 8's bar on later employment adverse to a former client as to whom confidence was reposed, and Rule 39's continuing duty to preserve confidences. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 8 (1929 Oklahoma Rules of Professional Conduct): the duty of undivided fidelity forbids subsequent employment from others in matters adversely affecting an interest of the client as to whom confidence has been reposed.
• Rule 39 (1929 Oklahoma Rules of Professional Conduct): the duty to preserve confidences bars the employment even though there are other available sources of information.

See also

• Okla. Bar Ethics Op. 91: Suing a former client and prior confidences
• Okla. Bar Ethics Op. 93: Defending a co-defendant against a former client

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-113/

Original opinion text

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

Adopted July 24, 1936

The Board is in receipt of the following inquiry:

"Some time ago I represented a group of taxpayers in a school district who were contesting the annexation of that school district to another school district. I was unsuccessful in this suit, and the Supreme Court ordered the annexation. Now, some of the taxpayers in the district, which I indirectly represented, are seeking to withdraw from the school district to which it was annexed, desires to employ me to contest that proceeding. The individuals whom I represented in the fire proceeding have paid me and there are no unfinished duties in the first proceeding. I desire to be advised whether, in the opinion of the committee, it would be improper for me to represent the school district which is resisting the withdrawal of the former district."

In response:

It is the opinion of the Board that it would be improper to accept the employment referred to.

Attention is called to Rule 8 of the Rules of Professional Conduct wherein it is laid down that:

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

See also Rule 39 of the Rules of Professional Conduct which interdicts the acceptance of the employment "even though there are other available sources of information."