When may an office-sharing lawyer take a suit related to a matter his office-mate handled, and when is the original lawyer disqualified from the other side?

Plain-English summary

Attorney A had drawn a separation agreement for Mr. and Mrs. X, then represented Mrs. X in obtaining a divorce (with Mr. X paying the fee and costs). After the divorce, Mr. X had asked A a "curbstone question" about whether Mrs. X could sue Mrs. Y (with whom Mr. X had kept company) for alienation of affections; A gave no definite answer. Later Mrs. X asked A to bring an alienation suit against Mrs. Y; A declined and would not let Mrs. X tell him about it, instead suggesting she retain Attorney B, who shared a library and reception room with A but was not his partner and had never held out as one. B then investigated Mrs. X's case. The Board was asked (1) whether B may represent Mrs. X against Mrs. Y (now married to Mr. X); (2) whether A may assist B; and (3) whether A may represent Mrs. Y in defending an alienation suit brought by some other attorney.

On question 1, the Board saw no apparent reason A could not represent Mrs. X, and therefore none why B should not; but it cautioned that if A were for some reason disqualified, a different situation arose, citing Advisory Opinion No. 88, which disapproved a somewhat similar relationship. On question 2, since no reason appeared that A could not represent Mrs. X, none appeared that A could not assist B. On question 3, the Board said the answer was not obvious on the limited facts: if the divorce proceedings involved Mr. X's conduct with Mrs. Y and A received information about it through representing Mrs. X, A could not represent Mrs. Y in defending the alienation suit, citing Rule 8 and Advisory Opinions Nos. 91 and 56. In all events, A was involved to such an extent that his defense of the alienation suit would not be seemly. Paraphrasing Advisory Opinion No. 73, the Board restated that a lawyer must avoid both impropriety and the appearance of impropriety and, under Rule 31, strive to uphold the honor and dignity of the profession, refraining from creating a condition that might bring reproach upon it. Mrs. X had reposed confidence in A as to certain phases of the situation. Quoting ABA Opinion 83, the Board added that personal sacrifice of financial reward in such a case adds to professional honor and marks the distinction between a trade and a profession.

Currency note

This opinion was issued in 1937, 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 analysis of former-client conflicts, confidentiality, and imputation among office-sharing lawyers has been restructured in the modern rules. Subsequent rule amendments and later opinions 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 office-mate (B) take Mrs. X's alienation suit?

A: Yes, on the facts. The Board saw no reason A could not represent Mrs. X, and therefore none why B should not; but it warned the answer would differ if A were disqualified.

Q: Could A assist B in the suit?

A: Yes, on the same reasoning. Because no reason appeared that A could not represent Mrs. X, none appeared that A could not assist B.

Q: Could A switch sides and defend Mrs. Y?

A: Not if A had learned, through representing Mrs. X, related confidences about Mr. X's conduct with Mrs. Y (Rule 8). The Board also said that, in all events, A's defending the suit would not be seemly.

Background and rules framework

The opinion applied Rule 8 (representation adverse to a former client where related confidences were received) and Rule 31 (duty to uphold the honor and dignity of the profession and avoid the appearance of impropriety) of the canon-era Oklahoma Rules of Professional Conduct, and relied on Oklahoma Advisory Opinions Nos. 56, 73, 88, and 91, and ABA Opinion 83. 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): a lawyer may not represent conflicting interests or take a matter adverse to a former client where related confidences were received.
• Rule 31 (1929 Oklahoma Rules of Professional Conduct): a lawyer's duty to uphold the honor and dignity of the profession and avoid the appearance of impropriety.

Other opinions cited:

• Oklahoma Advisory Opinions Nos. 56, 73, 88, and 91.
• ABA Committee on Professional Ethics and Grievances Op. 83: personal sacrifice of financial reward in such a case adds to professional honor.

See also

• Okla. Bar Ethics Op. 93: Defending a codefendant against a former client
• Okla. Bar Ethics Op. 130: Suing an heir's share after withdrawing from the probate
• Okla. Bar Ethics Op. 113: Switching sides in a school-district dispute

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-134/

Original opinion text

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

Adopted February 27, 1937

The Board is in receipt of the following request for an opinion:

"Attorney 'A' was employed by Mr. X and Mrs. X to draw a separation agreement for the division of their property. After such agreement was drawn and executed, Mrs. X employed Attorney 'A' to procure a divorce for her. Mr. X paid the fee of Attorney 'A' together with the court costs.

Thereafter Attorney 'A' was asked by Mr. X whether or not a suit for alienation of affections against one Mrs. Y might be maintained by Mrs. X. This inquiry by Mr. X was made after the divorce decree had been granted, Mrs. Y being one with whom he had been keeping company prior thereto. The inquiry was merely a 'curbstone question' and to which Attorney 'A' made no definite answer.

Still later Mrs. X, then divorced, came to the office of Attorney 'A' and asked him to represent her in an alienation suit against Mrs. Y. But Attorney 'A' advised her that he would not take such case, and would not permit her to tell him of her suit.

Officing with Attorney 'A' is Attorney 'B'; however the relationship of partners does not exist between them, and they only use a common library and reception room, and have never held themselves out as partners.

On telling Mrs. X that he would not represent her, Attorney 'A' suggested that she employ Attorney 'B' to represent her. Thereupon she went to Attorney 'B' who investigated her case.

Question 1. May Attorney 'B' ethically represent Mrs. X in an alienation suit against Mrs. Y who has now married Mr. X?

Question 2. May Attorney 'A' ethically assist Attorney 'B' in the prosecution of such alienation suit against Mrs. Y, (now the wife of Mr. X)?

Question 3. May Attorney 'A' ethically represent Mrs. Y, in the event such opportunity arose in the defense of an alienation suit which would be filed by some other attorney than Attorney 'B'?

It might be added here that Attorneys 'A' and 'B' have not talked about the case, or any of the phases thereof, or the merits of either side thereof, as they are in no wise partners. Neither is it at all contemplated that they would in any event be on opposite sides of said suit. Nor is it assumed that Attorney 'B' would assist Attorney 'A' in the defense of the alienation suit when and if filed by another attorney, as Attorney 'B' has investigated the case for Mrs. X, the proposed plaintiff."

In response to question 1:

From the facts no reason is apparent why 'A' may not represent Mrs. X in the proposed proceeding. That being so, there appears no reason why 'B' should not represent Mrs. X in the proceeding. If for any reason, however, 'A' is disqualified from representing Mrs. X another situation is presented. See Advisory Opinion No. 88, Vol. 1, Adv. Op. p. 156, in which a somewhat similar relationship was disapproved of.

To question 2:

If, as indicated in the response to Question 1, no reason exists why 'A' should not represent Mrs. X, there is no reason why 'A' could not assist 'B'.

To question 3:

From the limited facts stated in the inquiry as to the matters involved in the divorce suit, the answer to this question is not obvious. If the divorce proceedings involved the conduct of Mr. X with Mrs. Y and information with reference thereto was received by 'A' as a result of his representation of Mrs. X, 'A' could not represent Mrs. Y in the defense of the alienation suit. See Rule 8 of Professional Conduct and Advisory Opinion No. 91, (Vol. 1, Adv. Op. p. 161) and Advisory Opinion No. 56, (Vol. 1, Adv. Op. p. 109).

In all events, it appears that 'A' is involved in the situation to such an extent that his defense of the alienation suit would not be seemly. Paraphrasing somewhat the language of advisory opinion No. 73 (Vol. 1, Adv. Op. p. 137), it is the duty of a member of the bar not only to avoid all impropriety, but also to avoid the appearance of impropriety and (Rule 31) to strive, at all times, to uphold the honor and to maintain the dignity of the profession. Generally speaking, a member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach upon the profession. For obvious reasons the acceptance of employment from Mrs. X under the conditions presented would so tend. Confidence with reference to certain phases, if not as to all, of the situation had been reposed by Mrs. X in 'A'. As stated in opinion No. 83 of the Committee on Professional Ethics and Grievances of the American Bar Association, personal sacrifice of financial reward in such a case adds to professional honor and dignity and elevates the profession in public esteem; it marks clear the distinction between a trade or business and a profession.