Can a former prosecutor sue on a note for the defense fees in a case he once prosecuted?

Plain-English summary

A lawyer who served as County Attorney during 1931 and 1932 had, while in office, filed a bastardy proceeding against a defendant. The defendant had employed a firm of attorneys to defend him and gave them a note for their services; the bastardy proceeding was dismissed when the defendant married the woman involved, during the former County Attorney's term. The defense firm later asked him to file suit on the note to collect its fees, and he asked whether doing so would violate professional ethics.

The Board identified Rule 38 as the rule the inquirer likely had in mind, which provides that a lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity. The Board concluded that the situation did not come within Rule 38's interdiction: the inquirer did not investigate or pass upon the facts involved in the proposed note litigation, and his employment to sue on the note is too remote from the original matter to be considered connected with it within the spirit of the rule.

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 restrictions on former government lawyers and former adjudicative officers survive in modern form, but the rule text and its scope have changed. 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 Treat this page as historical context, not current guidance.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 prosecutor sue on a note for the defense fees in a case he had prosecuted?

A: Yes. The opinion held the note suit did not come within Rule 38, because he never passed on the facts of the note litigation and the matter was too remote from the original proceeding.

Q: What was the test the Board applied?

A: Whether he had previously investigated or passed upon the merits of the matter in which he was now to act, and whether the new employment was connected to the original matter within the spirit of Rule 38.

Background and rules framework

The opinion interpreted Rule 38 of the canon-era Oklahoma Rules of Professional Conduct, which provides that a lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity. It 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 lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity.

See also

• Okla. Bar Ethics Op. 116: A former judge retained in a case he handled only procedurally
• Okla. Bar Ethics Op. 101: Former judge cannot litigate a matter he decided
• Okla. Bar Ethics Op. 82: Former judge as advocate on the merits

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-127/

Original opinion text

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

Adopted October 23, 1936

The Board is in receipt of the following:

"I served as County Attorney of …… County during the years 1931 and 1932, and while in office filed a bastardy proceeding against one Judson Crow. This defendant employed a firm of attorneys to defend him in this action, and in payment for their services gave them a note. The bastardy proceeding was dismissed on the marriage of the defendant to the girl involved during the tenure of office of the writer.

The firm of attorneys who defended this action have requested that I file suit on the note to collect their attorney's fees. I would like to know if filing suit on this note, which represents attorney fees for the defense in the matter herein referred to, would be a violation of the ethics of the profession."

In response:

The rule of professional conduct which the inquirer probably has in mind is Rule 38, which, inter alia, states:

"A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity."

The situation presented does not come within the interdiction of Rule 38. Inquirer did not investigate nor pass upon the facts involved in the proposed litigation based upon the note. His employment to bring suit upon the note is too remote from the original matter to be considered as connected therewith within the spirit of the rule.