Must a criminal-defense lawyer withdraw from defending a man accused of embezzling school funds after the lawyer is later appointed attorney for the school board?

Plain-English summary

The inquirer represented John Doe, who was jointly charged with the former treasurer of a city board of education for embezzling school funds; the inquirer had appeared as Doe's counsel of record. He was then appointed attorney for the same board of education, which had suits pending against the former treasurer's bondsmen (handled by the board's former attorney). He asked whether he should now withdraw as Doe's defense counsel.

The Board first noted it did not appear whether, by accepting employment from the board, it became his duty to prosecute the treasurer; it assumed not, because doing so would clearly violate Rules 8 and 39. It then concluded that, for obvious reasons, he should withdraw from representing Doe. Because he represented the board generally, it was not seemly for him to defend a person charged with embezzling the board's funds; under the circumstances that could not, in its most favorable aspect, avoid the appearance of impropriety. Beyond the possibility that he might consciously or unconsciously use information gained through his access to the board's records, the Board closed by quoting Advisory Opinion 93: a member of the bar 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, with personal sacrifice of financial reward in such a case adding to professional honor.

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 conflict-of-interest and appearance-of-impropriety analysis stated here in Rules 8, 31, and 39 is now restructured in the modern conflict rules (Model Rules 1.7 and 1.9 and their Oklahoma counterparts). 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 Treat this page as historical context, not current guidance.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: What was the conflict?

A: The lawyer was defending a man charged with embezzling the school board's funds while now serving as the board's general attorney. The Board found that representing the board and defending an accused taker of its funds could not avoid the appearance of impropriety.

Q: Did the Board say he had to prosecute the treasurer?

A: No. It assumed that prosecuting the treasurer was not part of his board employment, noting that if it were, doing so would clearly violate Rules 8 and 39.

Q: What concern did the Board raise beyond appearances?

A: It noted the possibility that he might, consciously or unconsciously, use information obtained through his access to the board's records, even though other sources of that information existed.

Background and rules framework

The opinion applied the conflict and appearance-of-impropriety provisions of the canon-era Oklahoma Rules of Professional Conduct, Rules 8 and 39 (conflicting representations) and Rule 31 (duty to uphold the honor and dignity of the profession), and relied on Oklahoma Advisory Opinion 93. 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 except by express consent after full disclosure.
• 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.
• Rule 39 (1929 Oklahoma Rules of Professional Conduct): restriction on a lawyer acting adversely in a matter where his duties conflict.

Other opinions cited:

• Oklahoma Advisory Opinion 93 (Vol. 1, Adv. Op., p. 164).

See also

• Okla. Bar Ethics Op. 93: Defending a codefendant against a former client
• Okla. Bar Ethics Op. 134: Office-sharing lawyers and an alienation-suit conflict
• Okla. Bar Ethics Op. 130: Suing an heir's share after withdrawing from the probate

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-139/

Original opinion text

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

Adopted September 27, 1937

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

"One John Doe is jointly charged with embezzlement of school funds in the District Court of ………… County with the former Treasurer of the Board of Education of the City of ………………, Oklahoma. I represented John Doe in the preliminary and was present the day he was arraigned in the District Court and appeared as his counsel of record.

Since that time I have been appointed attorney for the Board of Education of the City of …………, Oklahoma. Should I now withdraw as attorney for the defendant in the criminal action?

The Board of Education has certain suits pending against the bondsmen of the former Treasurer. The former attorney of the School Board has been retained to pursue these suits to a final determination."

In response:

At the outset it is to be noted that it does not appear from the facts presented whether or not, by the acceptance of professional employment from the Board, it became the duty of the inquirer to proceed with the prosecution against the treasurer. It is assumed that that is not the fact, because so to do would clearly violate Rules 8 and 39 of the rules of professional conduct. While the facts are somewhat dissimilar the principles laid down in advisory opinion 93, page 164, Vol. 1, Adv. Op., control the instant situation.

It is the opinion of the Board, that, for obvious reasons, the inquirer should withdraw from further representation of John Doe. By reason of the fact that the inquirer represents the board generally it is not seemly that he should defend a person charged with the embezzlement of its funds. To do so, under the circumstances detailed, could not, in its most favorable aspects, avoid the appearance of impropriety. Passing by the possibility that the inquirer, either consciously or sub-consciously may use information obtained by reason of his easy access to the records of the Board, and other information which, by reason of his representation thereof might be obtained–even though there are other sources of information available–the Board concludes by quoting the last paragraph of Advisory Opinion 93:

"The Board has had repeated occasion to say that 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 maintain the dignity of the profession; and that, generally speaking, a member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach on the profession, and, that personal sacrifice of financial reward in such case adds to professional honor and dignity and elevates the profession in public esteem, marking clear the distinction between a trade or business, and the profession."