Can a lawyer who holds contingent-fee civil damage claims against a criminal defendant also serve as a special prosecutor in the criminal case?

Plain-English summary

A lawyer represented a man charged with murder. Another attorney had brought two civil damage suits against the defendant on behalf of the deceased's minor children on a contingent basis, with attorney's-lien claims noted on the petitions. That same attorney, at the county attorney's request, appeared to assist in prosecuting the criminal case and was appointed a special prosecutor without compensation over objection. He received no compensation in the criminal case beyond what he expected to recover in the civil actions. The inquiring lawyer asked whether it was proper for the attorney to appear in the criminal case under these circumstances.

The Board of Governors framed the issue as one of propriety. It pointed to Rule 7, which makes the primary duty of a prosecuting attorney not to convict but to see that justice is done, and Rule 30, which makes it the duty of a member of the bar to uphold the honor and maintain the dignity of the profession. The Board observed that the attorney was personally and pecuniarily interested in the civil suits, a fact that might tend to cause him to transgress the spirit of Rule 7, while also noting that he had been requested to assist by the county attorney and appointed by the court, and that success in the civil suits did not appear to depend on a criminal conviction. The Board declined to assume the attorney would violate Rule 7, but concluded that the situation did not seem calculated to uphold the honor and dignity of the profession, and that "members of the bar should not be encouraged to allow themselves to be placed in similar situations." The Board later revisited this conclusion in its Opinion 32, stating that Opinion 24 should have found it improper for the lawyer to accept the criminal employment.

Currency note

This opinion was issued in 1932, 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 The rules cited here, Rules 7 and 30, belong to that superseded canon-era code and do not correspond to the current Oklahoma Rules of Professional Conduct. Treat this page as historical context, not current guidance.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 lawyer prosecute a criminal case while holding contingent civil claims against the same defendant in 1932?

A: The Board did not flatly prohibit it, but concluded the arrangement did not tend to uphold the honor and dignity of the profession and that lawyers should not be encouraged to place themselves in such a position.

Q: What was the Board's concern with the arrangement?

A: The Board noted the prosecutor was personally and pecuniarily interested in the civil suits, which it said might tend to cause him to transgress the spirit of Rule 7's duty to see that justice is done rather than to convict.

Q: Did the court's appointment of the lawyer as special prosecutor change the analysis?

A: The Board treated the county attorney's request and the court's appointment as facts weighing in the lawyer's favor, but still concluded the overall situation was one lawyers should avoid.

Background and rules framework

The opinion turned on two rules of the then-current Oklahoma Rules of Professional Conduct. Rule 7 provided that the primary duty of an attorney engaged in a public prosecution is not to convict but to see that justice is done. Rule 30 made it the duty of a member of the bar to uphold the honor and maintain the dignity of the profession. The Board treated the prosecutor's personal financial stake in the related civil litigation as the feature that placed the arrangement in tension with both rules. These rules were patterned on the ABA Canons of Professional Ethics in force at the time.

Citations and references

Rules of Professional Conduct:

• Rule 7 (1929 Oklahoma Rules of Professional Conduct): the primary duty of a prosecutor is not to convict but to see that justice is done.
• Rule 30 (1929): a member of the bar must strive to uphold the honor and maintain the dignity of the profession.

See also

• Okla. Bar Ethics Op. 32: City Attorney's Firm as Special Prosecutor With Civil Claims
• Okla. Bar Ethics Op. 8: County Attorney as Witness and Prosecutor
• Okla. Bar Ethics Op. 13: County Attorney Compensation Connected to Prosecution
• ABA Formal Op. 469: Prosecutors and Debt-Collection Companies

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-24/

Original opinion text

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

Adopted March 25, 1932

The Board of Governors is in receipt of the following request from a member of The State Bar:

"I have a client who is charged with murder. An attorney brought two damage suits against him for the minor children of the deceased on a contingent basis, with the words "Attorney's Lien Claimed" on the petitions. This Attorney at the request of the County Attorney appeared to assist in the prosecution of the criminal case. He receives nothing in the criminal case as compensation, except what he expects to receive in the civil actions. Objection was made to him appearing in the criminal action. The court overruled the objection and then appointed him as a special prosecutor without compensation to assist the County Attorney, over objection.

I maintain it is improper for him to appear in the criminal case under these circumstances. What is the opinion of the officers of The State Bar? May I hear from you?"

In response:

In the practice of law there are many matters involving the proprieties, or colloquially speaking "good taste," which cannot be controlled other than by the sensibilities of the individual members of the bar.

Rule 7 of the Rules of Professional Conduct states it to be the primary duty of an attorney engaged in a public prosecution not to convict but to see that justice is done. Rule 30 defines it to be the duty of a member of the bar at all times to strive to uphold the honor and to maintain the dignity of the profession.

It appears that the member of the bar involved is personally pecuniarily interested in the result of the civil suits. This fact may be said to have a tendency to cause the member of the bar to transgress the spirit of Rule 7 referred to. On the other hand it appears that he was requested to assist in the prosecution of the criminal case by the county attorney and was subsequently appointed a special prosecutor by the court.

Again it would not appear that success in the civil suits depends upon obtaining a conviction in the criminal case.

It cannot be assumed that the member of the bar involved will violate the spirit of Rule 7 and yet, under the circumstances the situation does not seem calculated to uphold the honor and to maintain the dignity of the profession.

About all that can be said upon the subject is that members of the bar should not be encouraged to allow themselves to be placed in similar situations.