May a part-time assistant county attorney privately represent a beer-license applicant in a hearing his own office has a duty to contest?

Plain-English summary

The committee was asked whether an assistant county attorney could represent an applicant for a beer license when doing so required presenting the application and conducting the hearing before the county judge, while the county attorney's office had a statutory duty to represent any person contesting the license.

The committee distinguished two statutory categories of assistant county attorney. Full-time assistants are forbidden the private practice of law, so for them the answer was an unqualified no. As to the second category, those who under 19 O.S.A. § 179.7(e) may continue private practice subject to restrictions, the committee noted that § 206 prohibits them from accepting employment as counsel in any matter arising from or connected with any investigation, charge, or proceeding conducted by the county attorney's office. The committee held that accepting the beer-license representation would violate the second paragraph of Canon 6, which makes it unprofessional to represent conflicting interests except by the express consent of all concerned after full disclosure. It observed that while many applications are routine and uncontested, the possibility of conflicting interests arising is obvious, and that the consent referred to in Canon 6 may not be given in the case of public officials. The committee also reasoned that allowing the practice could lead applicants to believe that employing a member of the county attorney's staff would produce a less thorough investigation or less energetic prosecution. It added that such an assistant and his partners must give up all criminal practice and all civil practice in which the county is a party, and characterized the opinion as reciting an existing restriction rather than imposing a new one.

Currency note

This opinion was issued in 1959, 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 opinion also rests on Oklahoma statutes (19 O.S.A. §§ 179.7 and 206) as they stood in 1959. Subsequent rule amendments, statutory changes, or 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 Treat this page as historical context, not current guidance.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 full-time assistant county attorney take this private representation?

A: No. The committee said full-time assistants are forbidden the private practice of law, so for them the answer was an unqualified no.

Q: What about a part-time assistant whom statute allows to practice privately?

A: The committee said accepting the beer-license representation would still violate Canon 6's bar on representing conflicting interests, and that § 206 already prohibited such assistants from taking work connected with proceedings conducted by the county attorney's office.

Q: Could the conflict be cured by consent?

A: No. The committee said the consent Canon 6 contemplates may not be given in the case of public officials.

Background and rules framework

The opinion applied the second paragraph of Canon 6 of the Canons of Professional Ethics, adopted in Oklahoma, which forbids representing conflicting interests absent the express, fully informed consent of all concerned, and read it together with the Oklahoma statutes governing assistant county attorneys (19 O.S.A. §§ 179.7(e) and 206). It relied on the view, attributed to the ABA committee and other state bars, that public officials cannot give the consent Canon 6 requires. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 6 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): it is unprofessional to represent conflicting interests except by express consent of all concerned after full disclosure.

Statutes:

• 19 O.S.A. § 179.7(e): restrictions on assistant county attorneys who continue private practice.
• 19 O.S.A. § 206: prohibits such assistants from accepting employment connected with matters conducted by the county attorney's office.

See also

• Okla. Bar Ethics Op. 200: City attorney's firm appearing before the city council
• Okla. Bar Ethics Op. 32: City attorney's firm as special prosecutor with civil claims

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-199/

Original opinion text

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

Adopted November 2, 1959

The Central Committee of the Oklahoma Bar Association has submitted to its Legal Ethics Committee the following inquiry:

INQUIRY

Can an Assistant County Attorney represent an applicant for beer license when in so doing he must present the application and conduct the hearing for the same before the County Judge, when under the law it is the duty of the County Attorney’s office to represent any person contesting said license?

OPINION

Two categories of Assistant County Attorneys are recognized by the Oklahoma statutes. The first of these includes all full time assistants. They are forbidden the private practice of law. With respect to attorneys in this first category the answer must be an unqualified “no”.

The statutes also recognize a category of Assistant County Attorney who, subject to certain restrictions, may continue the private practice of law. These restrictions are contained in 19 O.S.A. § 179.7(e). In addition, § 206 of the same Title prohibits such assistant county attorneys as are permitted by statute to engage in the private practice of law from accepting employment as counsel in “any case, or filing any type of civil action or proceeding on behalf of any person, firm or corporation in any manner arising from or out of or connected with any type of investigation, charge or proceeding conducted or instituted by the office of County Attorney with which he is connected.”

While it is true that the great majority of applicants for the annual beer licenses are qualified and the preparation and presentation of the applications are routine matters, nevertheless, it is the opinion of the Committee for an Assistant County Attorney authorized by statute to conduct an outside practice, to accept such employment would constitute a violation of the second paragraph of Canon 6 of the Canons of Legal Ethics, which reads:

“It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.”

Obviously, as indicated above, there would be no conflicting interests in many of these applications, but the possibility of conflicting interests arising is also quite obvious. It has been often held by the Ethics Committee of the American Bar Association and of numerous other state bar associations, that the “consent” referred to above may not be given in the case of public officials.

In addition, if such practice were permitted, the Committee feels that applicants for beer licenses, particularly those who might have some doubt as to their right to receive the permit, might feel that the act of employing a member of the staff of the County Attorney, whose duty it is to contest such applications, would result in a less thorough investigation perhaps later in a less energetic prosecution even should the assistant county attorney withdraw from representing the applicant upon the filing of a contest.

The Committee is not unmindful that many counties have neither the business nor means to justify full time assistant county attorneys, but nevertheless find it highly desirable to have such an attorney available. Such an assistant and his partners must give up all their criminal practice and all their civil practice to which the County is a party.

Any further restrictions would tend to make the employment of capable public servants difficult, but the Committee does not feel that this opinion constitutes a further restriction, but is merely recitive of an existing one.