May a lawyer who sits on the state Pardon and Parole Board, or a member of his firm, represent defendants in criminal cases in state court?

Plain-English summary

The Board of Directors of the Oklahoma Bar Association asked the committee whether an attorney member of the State Pardon and Parole Board, or any member of his firm, could properly and ethically represent clients in criminal proceedings in Oklahoma courts. The committee answered no.

It described the Board's role: the Board makes an impartial investigation of applicants for commutation, pardons, or paroles and recommends those it deems worthy of clemency to the Governor, who may grant clemency only after a favorable majority recommendation. The committee reasoned that the Board and its members thus exercise wide quasi-judicial authority over everyone convicted under Oklahoma law, and that an application for clemency is a proceeding in which the State is interested adversely to the convicted person. It quoted Canon 6's prohibition on representing conflicting interests except by express consent after full disclosure.

The committee held that, because a Board member is a salaried public officer with constitutionally fixed duties and the State is adverse to the convict, an attorney member of the Board or a member of his firm commits unethical conduct by representing defendants in criminal cases in state courts. It added that the dual position is inherently antagonistic, so the conclusion would hold irrespective of Canon 6, and that consent could not cure the conflict because the public is concerned and cannot consent. Allowing a public official to represent persons charged with crimes while sitting in ultimate authority over their future punishment, the committee said, would tend to diminish public confidence and respect for law enforcement. It closed with the principle that an attorney can serve but one master and must avoid circumstances that might be suspect.

Currency note

This opinion was issued in 1967, during the era of the Canons of Professional Ethics, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The conflicting-interest principle the opinion applied survives in modern form in Rule 1.7, with special rules for current and former government lawyers in Rule 1.11. Treat this page as historical context, not current guidance.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 who serves on the Pardon and Parole Board take criminal defense cases in state court?

A: Under this opinion, no. The committee held that because the State is adverse to a convicted person in clemency matters, a Board member representing criminal defendants in state court engages in unethical conflicting representation.

Q: Did the conflict extend to the lawyer's whole firm?

A: Yes. The committee said an attorney member of the Board "or a member of his firm" is guilty of unethical conduct in representing such defendants.

Q: Could the conflict be cured by client consent?

A: No. The committee concluded the dual role is inherently antagonistic and that consent could not apply because the public is concerned and cannot consent.

Background and rules framework

The opinion applied the second paragraph of Canon 6 of the Canons of Professional Ethics, adopted in Oklahoma, which made it unprofessional to represent conflicting interests except by express consent of all concerned after full disclosure. It treated the State's adverse interest in clemency proceedings, combined with a Board member's quasi-judicial authority over convicted persons, as an inherent and non-consentable conflict. The conflicting-interest principle corresponds to today's Model Rule 1.7, with Model Rule 1.11 addressing government lawyers. 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.

Other opinions cited:

• Oklahoma Bar Association Opinion No. 200.
• ABA Committee on Professional Ethics Opinions Nos. 16, 34, and 142.

See also

• Okla. Bar Ethics Op. 222: Former prosecutor representing a former defendant in restoration
• Okla. Bar Ethics Op. 240: Lawyer-adjuster contacting a represented party

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-245/

Original opinion text

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

Adopted February 23, 1967

The Board of Directors of the Oklahoma Bar Association has requested this Committee to write an Opinion answering the following question:

INQUIRY

Can an attorney member of the Pardon and Parole Board of the State of Oklahoma or any member of his firm properly and ethically represent clients in criminal proceedings in the courts of the State of Oklahoma?

OPINION

The Pardon and Parole Board of the State of Oklahoma has the duty to make an impartial investigation and study of applicants for commutation, pardons, or paroles, and make its recommendation to the Governor of all deemed worthy of clemency and the Governor has the power to grant commutation, pardons and–or paroles for all offenses against the State of Oklahoma, except cases of impeachment, only after a favorable recommendation by a majority vote of the Board.

Thus it appears that the Board and its members have a wide latitude of quasi judicial authority over all those convicted of crimes under the laws of the State of Oklahoma. It further appears that the application for a pardon or parole or the commutation of a penalty imposed by law is a proceeding in which the State of Oklahoma is interested adversely to the convicted person. The second paragraph of Canon No. 6 of the Canons of Professional Ethics reads, "It is unprofessional to represent conflicting interest, except by expressed consent of all concerned given after a full disclosure of the facts."

A member of the Pardon and Parole Board is a public officer who draws a salary and a per diem expense as compensation paid by the State of Oklahoma, with designated duties and responsibilities clearly set out in the Constitution; and since the State is interested adversely to the convict, an attorney member of such Pardon and Parole Board or a member of his firm is guilty of unethical conduct in representing defendants in criminal cases in State courts. This Committee is of the opinion that the position of an attorney as a member of the Board and as a lawyer representing a client under the circumstances set out above is inherently antagonistic and this would be so irrespective of Canon No. 6. No question of consent can be involved as the public is concerned and it cannot consent. To permit a public official to engage in the representation of persons charged with crimes and at the same time to sit in a position of ultimate authority over the person's future punishment if convicted, would tend to diminish the public's confidence and respect for law enforcement.

An attorney, firm or member of a firm can serve but one master. When an attorney accepts a position of public responsibility, he is governed by the Canons of Ethics of his profession and it is his duty to strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only upon the law but the administration of justice. He should further avoid any act which would create disrespect for a public office or deception or betrayal of the public. He should seek the confidence of the public by avoidance of circumstances which might be suspect.

See Opinions No. 200 of the Oklahoma Bar Association and Opinions No. 16, 34, and 142 of the Committee on Professional Ethics of the American Bar Association.