May a lawyer appointed Acting County Attorney keep a separate law office and a private practice?

Plain-English summary

A bar member serving as County Attorney, appointed under 19 O.S.A. § 187, asked whether a lawyer appointed "Acting County Attorney" under that section may maintain a law office and conduct a private practice in a separate office.

The committee said the first part of the inquiry was partly a matter of statutory construction, and it concurred in an opinion of Professor William R. Bandy that an Acting County Attorney is not prohibited from private practice during his tenure, agreeing with his reading of Sections 187 and 185 of Title 19. The committee further opined that the Acting County Attorney not only may but should maintain a separate office for his private practice. It added a word of caution: private practice by a county attorney is fraught with the possibility of finding himself with a dual obligation in violation of Canon 6, so he should be most circumspect about the type of employment he accepts and take great care not to accept any case where his duties as prosecutor might conflict.

Currency note

This opinion was issued in 1961, 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. §§ 185 and 187) as they stood in 1961. 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 Treat this page as historical context, not current guidance.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 an Acting County Attorney keep a private practice?

A: Yes. The committee concurred in the construction that an Acting County Attorney appointed under 19 O.S.A. § 187 is not prohibited from private practice during his tenure.

Q: Should he keep his private practice in a separate office?

A: Yes. The committee said he not only may but should maintain a separate office in which to pursue his private practice.

Q: What limit did the committee place on that private practice?

A: The committee cautioned that, under Canon 6, he must be circumspect about the employment he accepts and avoid any case where his prosecutorial duties might conflict.

Background and rules framework

The opinion combined statutory construction of 19 O.S.A. §§ 185 and 187 (relying on Professor William R. Bandy's reading) with Canon 6 of the Canons of Professional Ethics, adopted in Oklahoma, which bars representing conflicting interests. 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): a county attorney in private practice must avoid employment that creates a conflicting dual obligation.

Statutes:

• 19 O.S.A. §§ 185 and 187: provisions governing the appointment of an Acting County Attorney.

See also

• Okla. Bar Ethics Op. 199: Assistant county attorney representing a beer-license applicant
• Okla. Bar Ethics Op. 200: City attorney's firm appearing before the city council

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-215/

Original opinion text

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

Adopted December 14, 1961

A member of the Bar acting as County Attorney, having been appointed pursuant to the provisions of 19 O.S.A. § 187, has submitted the following inquiry.

INQUIRY

May a member of the Bar who is appointed “Acting County Attorney” pursuant to the provisions of 19 O.S.A. § 187 maintain a law office and conduct a private practice in said separate office?

OPINION

The first part of the inquiry does not entirely involve a question of ethics, but also a question of statutory construction. However, there is available to us an opinion of Professor William R. Bandy directed to James Harrod, Esq. of the Code Procedure—Criminal Committee to the effect that an Acting County Attorney is not prohibited from engaging in the private practice of law during his tenure of office as such. We concur in Professor Bandy’s construction of Sections 187 and 185 of Title 19.

We are further of the opinion that the Acting County Attorney not only may, but should, maintain a separate office in which to pursue his private practice.

We feel that we would be remiss if we did not add a word of caution–Private practice by a County Attorney is fraught with the possibility of the attorney’s finding himself with a dual obligation and in violation of Canon 6. He should be most circumspect in the type of employment he accepts and take great care not to accept employment in any case where his duties as prosecutor might conflict.