Could a lawyer accept a retainer and charge a reasonable fee to help a person obtain a leave of absence, parole, or pardon?

Plain-English summary

A member of the bar asked whether a lawyer may, with propriety, accept retainers to aid persons in securing leaves of absence, paroles, and pardons. The Board answered through ABA Committee on Professional Ethics and Grievances Opinion 61, which addressed charging for services in obtaining a pardon for a convict, assuming conduct free of objectionable tactics and services consisting of securing letters of recommendation and presenting the matter to the Governor or Board of Pardons. Although the pardoning power lies with the executive, the application requires legal knowledge and skill, and the convict has the right to apply for clemency; except where prohibited by law, it is not improper for an attorney to accept a reasonable fee from a convict in representing him on a pardon application, including securing and presenting letters of recommendation.

The Board added that the rules of professional conduct apply to this practice as to any other. Solicitation of such practice is prohibited under Rule 29. Rule 28 applies, so a lawyer may render services openly and in his true character on the same ethical footing as appearing before courts, but it is unprofessional to conceal his attorneyship, to employ secret personal solicitations, or to use means other than those addressed to reason and understanding to influence action. Rule 47 also applies, requiring every attorney retained in a cause pending in any court, board, or commission to file a written appearance; the Board read this to require a lawyer accepting such a retainer to file his appearance with the pardon and parole attorney.

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 The rules cited here belong to that superseded canon-era code, and the flat ban on solicitation has since been narrowed by constitutional decisions on lawyer advertising and solicitation beginning with Bates v. State Bar of Arizona (1977). Subsequent rule amendments and case law 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 Treat this page as historical context, not current guidance.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 lawyer charge to help a convict get a pardon or parole?

A: Yes. Adopting ABA Opinion 61, the Board held it is not improper, except where prohibited by law, to accept a reasonable fee for representing a convict in a pardon application.

Q: Did the usual ethics rules still apply to pardon and parole work?

A: Yes. The opinion stressed that the rules apply as in any other practice: no solicitation (Rule 29) and no concealed attorneyship or secret solicitation (Rule 28).

Q: Did the lawyer have to file anything?

A: Yes. Under Rule 47 the Board required a lawyer accepting such a retainer to file his written appearance with the pardon and parole attorney.

Background and rules framework

The opinion adopted ABA Committee on Professional Ethics and Grievances Opinion 61 and applied Rules 28, 29, and 47 of the canon-era Oklahoma Rules of Professional Conduct: Rule 29's bar on solicitation, Rule 28's bar on concealed representation and secret solicitation, and Rule 47's requirement of a written appearance. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 28 (1929 Oklahoma Rules of Professional Conduct): a lawyer may render services openly in his true character but may not conceal his attorneyship or use secret personal solicitations.
• Rule 29 (1929 Oklahoma Rules of Professional Conduct): prohibits solicitation of professional employment.
• Rule 47 (1929 Oklahoma Rules of Professional Conduct): every attorney retained in a cause pending in any court, board, or commission must file a written appearance.

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances Op. 61: a lawyer may accept a reasonable fee for representing a convict in a pardon application.

See also

• Okla. Bar Ethics Op. 95: A card in a directory circulated to laymen

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-115/

Original opinion text

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

Adopted September 24, 1936

The Board is in receipt of an inquiry from a member of the bar inquiring whether or not, with propriety, a member of the bar may accept retainers to aid persons in securing leaves of absence, paroles and pardons.

The Board expresses its views through Opinion 61 of the A. B. A. Committee on Professional Ethics and Grievances which is as follows:

"A member asks whether a lawyer can properly make a charge for services rendered in obtaining a pardon for a convict. It is to be assumed that the lawyer's conduct is wholly free from objectionable tactics and that his services consist of securing letters of recommendation to the pardoning executive and the presentation of the matter to the Governor or the Board of Pardons."

"The pardoning power is generally lodged in the executive rather than in the judicial department, yet an application for pardon and its presentation require knowledge and skill of a legal nature. The convict has the legal right vouchsafed to him to apply for the grace or right to pardon or clemency. Except where prohibited by law, it is not improper for an attorney to accept a reasonable fee from a convict in representing him in an application for pardon although the attorney's services include the securing of letters of recommendation and the presentation of them along with the application."

For various reasons, however, it is not amiss to observe that the Rules of Professional Conduct are as applicable to this phase of practice as they are to any other.

Solicitation of such practice is prohibited. (Rule 29).

The provisions of Rule 28 are applicable, to-wit:

"A lawyer openly, and in his true character, may render professional services * * * upon the same principle of ethics which justify his appearance before the courts; but it is unprofessional for a lawyer so engaged to conceal his attorneyship, or to employ secret personal solicitations, or to use means other than those addressed to the reason and understanding, to influence action."

Rule 47 is likewise applicable. It provides:

"Every attorney, upon being retained in a cause pending in any court, board or commission of this State shall immediately file in the office of the Clerk of the Court, board or commission his written appearance in the cause."

Under this rule a member of the bar accepting such retainer must file his appearance with the pardon and parole attorney.