After leaving office, may a former county attorney represent a private client in a civil damage suit arising out of a collision caused by a crime he prosecuted in office?

Plain-English summary

While county attorney, the inquirer had prosecuted X for driving while intoxicated; X pleaded guilty, and the judgment was pronounced after the inquirer left office. The same drunk driving had caused a collision with a truck belonging to B. After the inquirer returned to private practice, B wanted to retain him as local counsel in a civil damage suit against X to recover for the collision. The inquirer noted that, while county attorney, he had not passed on any facts insofar as they related to the damages.

The Board concluded he could not accept the employment. In its view, the question whether damages resulted from the collision, or their amount, could not be dissociated from an investigation of the facts of the collision, because if there were no liability there could be no legal claim for damages. The facts brought the proposed employment clearly within Rule 38, which prohibited a former public officer from accepting employment in connection with any matter he had investigated or passed upon while in office.

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 successive-government-and-private-employment restriction once stated in Rule 38 now lives, in modified form, in the rule on former government lawyers (Model Rule 1.11 and its Oklahoma counterpart). 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 Treat this page as historical context, not current guidance.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: Why did it matter that he had not handled the damages issue in office?

A: The Board found that distinction unavailing. It reasoned that the damages question could not be separated from the collision facts, which he had prosecuted, because without liability for the collision there could be no damage claim.

Q: What rule controlled?

A: Rule 38, which barred a former public officer from later accepting employment in connection with any matter he had investigated or passed upon while in office.

Background and rules framework

The opinion applied Rule 38 of the canon-era Oklahoma Rules of Professional Conduct, which prohibited a member who had held public office from accepting, after retirement, employment in connection with any matter he had investigated or passed upon while in that office. The rule predates the Model Rules and the opinion made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 38 (1929 Oklahoma Rules of Professional Conduct): a former public officer may not accept employment in connection with a matter he investigated or passed upon while in office.

See also

• Okla. Bar Ethics Op. 127: Former county attorney suing on a defense-fee note
• Okla. Bar Ethics Op. 84: Ex-county attorney defending a case he prosecuted
• Okla. Bar Ethics Op. 106: Former city attorney suing the city over the same nuisance

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-137/

Original opinion text

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

Adopted September 17, 1937

"I was County Attorney of this county for a period of four years, my successor having qualified in January this year. During my encumbency [sic] it was necessary that I prosecute one X for the crime of driving an automobile while under the influence of intoxicating liquor. To the charge X entered a plea of guilty. Judgment and sentence, although deferred until after I had retired from office, was pronounced by the Court. While so driving X ran into and collided with a truck belonging to B. The collision ended X's driving as aforesaid. Now B desires to employ me as local counsel in a damage suit against X to collect damages caused at the time of the collision by X if any. While I was county attorney I did not pass upon any of the facts insofar as they related to the damages caused, if any. May I with propriety, now accept employment from B to represent him along with others, in the suit against X?"

In response:

In the opinion of the Board the question as to whether or not damages resulted from the collision, or the amount thereof, cannot be dissociated from an investigation of the facts involved in the collision, because if there were no liability there could be no legal claim for damages.

The mere facts presented bring the matter of the employment of the inquirer clearly within the purview of Rule 38 which prohibits his acceptance of employment in the suit brought by B against X. That rule provides:

"A member of the bar, having once held public office … shall not after his retirement, accept employment in connection with any matter which he has investigated or passed upon while in such office or employ."