May a lawyer (or a partner of a lawyer) who represents a city board appear before other boards or commissions of the same city, and does it matter whether he is paid by retainer or by the case?

Plain-English summary

Attorneys A and B are partners; A represents a municipal board on a monthly retainer (not the city generally), while B represents neither the city nor any board. A asked whether either partner could represent other clients in matters subject to the jurisdiction of the city and its other boards, and whether it mattered that he might be paid by the case rather than by retainer or salary. The board's members are appointed by the Mayor (an ex-officio member), the board was created by city charter amendment, its larger contracts and expenditures require city-commission approval, its revenue goes to the city's general fund, and its appropriations come from that fund.

The committee analyzed the questions under Canon 6 (representing conflicting interests). It stated that what is unethical for one member of a firm does not become ethical when done by a partner or associate, extending to lawyers whose close association (such as office and overhead sharing) implies a partnership to the public. It treated ABA Informal Opinion C-798 as most on point: there, the controlling question was whether an agency was autonomous from the city, and autonomy turned on facts such as an ordinance declaring the agency's employees not to be city employees. Here, no such provision existed, the board's employees were presumably city employees, and the city commission had to approve substantially all of the board's actions, so the committee doubted the board was autonomous. It noted that a later ABA Informal Opinion (No. 855) muddied the area by ignoring autonomy, but, finding 855 vague and not an express overruling of C-798, the committee followed C-798 as better reasoned.

The committee emphasized that attorneys involved in public work bear a heightened obligation, quoting Informal Opinion 855 that persons in public office must perform the office's functions honestly, impartially, and ethically, and that lawyers compensated by public tax money must avoid even the appearance of evil. While most private conflicts can be addressed by informing affected clients and obtaining consent, the committee said that in public affairs such consent cannot be used by persons standing in a public or quasi-public position. Finally, it concluded the second inquiry did not change the analysis, because the method of compensation does not affect the public character of the work; the duties would remain substantially the same whether the lawyer was paid by retainer or by the case.

Currency note

This opinion was issued in 1969, 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 conflict, imputation, and government-lawyer principles the opinion applied survive in modern form in Rules 1.7, 1.10, and 1.11, but the current rules' treatment of imputation, screening, and consent differs from the Canons. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific limitation mentioned here.

Common questions

Q: Could the law partner of a city board's attorney appear before other boards of the same city?

A: No. The committee held that because the board was not autonomous from the city, Canon 6 barred both the board's attorney and his partner from representing clients before other city boards, since what is improper for one partner is improper for the other.

Q: Could the affected parties consent to the conflict?

A: No. The committee held that in public affairs, consent cannot be used by persons standing in a public or quasi-public position to cure the conflict.

Q: Did it matter that the attorney was paid by the case rather than by retainer?

A: No. The committee concluded the compensation method does not affect the public character of the work, so the duties remained substantially the same either way.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics, adopted in Oklahoma, on representing conflicting interests, together with the principle that a conflict imputes across a firm and the heightened duty of lawyers in public positions. It followed ABA Informal Opinion C-798 (autonomy of a municipal agency) over the later, vaguer Informal Opinion 855. The conflict and imputation principles correspond to today's Model Rules 1.7, 1.10, and 1.11. 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 after full disclosure.

Other opinions cited:

• ABA Committee on Professional Ethics Formal Opinions Nos. 16, 33, 34, 49, 71, 77, 103, 128, and 192; Informal Opinions Nos. C-691, C-798, and 855; Advisory Opinion No. 162.

See also

• Okla. Bar Ethics Op. 245: Pardon and Parole Board member representing criminal defendants
• Okla. Bar Ethics Op. 254: Partner or officemate of an assistant DA defending criminal cases
• Okla. Bar Ethics Op. 246: Judge and former partner as assistant district attorney

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-257/

Original opinion text

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

Adopted May 15, 1969

INQUIRY

1. Is it proper for a partner or associate of an attorney, who represents a board or commission of a city, to appear before other boards or commissions of the city?

2. Would the fact that the attorney is strictly on a fee basis rather than a monthly retainer or salary, make any difference?

OPINION

A and B are partners in private practice in a city in Oklahoma. Attorney A represents one of the municipal boards of said city on a monthly retainer basis. Attorney A does not represent the City per se but only a particular board. His Partner B does not represent the City or any other board. Attorney A has requested an opinion from this committee as to the ethical propriety of either A or B, individually or jointly representing other clients in matters subject to the jurisdiction of the City and other boards.

The membership of the particular board in question is appointed by the Mayor who, along with another commissioner, are ex-officio members of said board. The board itself was created by Charter Amendment to the City, a copy of such amendment was submitted to the committee along with Attorney A's request. A is the only attorney employed by the board and represents it in all legal matters affecting the Board. Authority for the board to employ an attorney is granted in the Charter Amendment subject to approval of the City Board of Commissioners. The Charter Amendment provides that all contracts and expenditures in excess of a certain stated amount by the board are subject to approval by the City Commissioners. All revenue derived from the board's operation is allocated to the general fund of the City and any appropriations for operations of the board are made out of the general fund of the city by its commissioners.

The questions raised are covered by Canon 6 of the American Bar Association Canons of Professional Ethics as adopted by the Oklahoma Bar Association. This canon provides in its pertinent parts as follows:

"… It is unprofessional to represent conflicting interests, except by express consent of all concerned given after 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 …."

At the outset it should be noted that what may be unethical for one member of a law firm to do in a particular situation does not render such act ethical simply by permitting a partner or associate of the firm to do. This likewise extends to those lawyers who may not be partners according to a legal definition of a partnership but have close proximity or association (such as office and overhead sharing arrangements) with each other so as to imply to the public that a partnership exists. (See ABA Formal Opinions Nos. 33, 49, 103, 128; ABA Informal Opinions No. 691; ABA Advisory Opinion No. 162.)

The particular situation presented by these inquiries has been covered in ABA Informal Opinion No. C_798 rendered on October 26, 1964. In that opinion an attorney represented a client before a City Council acting as a Zoning Appeals Board while the attorney was representing an Urban Renewal Authority in an appeal before a local circuit court. The issue appeared to be resolved by a determination of whether the Authority was autonomous from the city. In finding that the authority was autonomous, the opinion emphasized the fact that the ordinance establishing such authority expressly stated that its employees were not employees of the city. In the facts presented to us no such provision exists in the Charter regarding the board's employees and therefore we assume that they are city employees. Furthermore, it is extremely doubtful that the Board is actually autonomous of the city. A review of the amendment provision pertaining to the Board indicates that the city commission must approve substantially all of the board's actions.

In all fairness, however, we should note that ABA Informal Opinion C_798 has been obscured or clouded by a subsequent informal opinion of the ABA. In Informal Opinion No. 855 rendered on May 31, 1965, the ABA Ethics Committee discusses in a general way representation problems of partnerships involved in municipal agencies and courts where members or associates of a firm all are members of, appointed or elected to various boards, courts or official attorney offices. Some situations are outlined where no conflict would exist. However, it is our opinion that this opinion completely ignores any discussion of the factor of autonomy and thus leaves unresolved a factor which the prior opinion deems controlling in these situations. Informal Opinion No. 855 discusses numerous situations in such a vague and unprecise [sic] manner that its value should be discounted. That opinion did not expressly overrule Informal Opinion No. C_ 798 and we therefore assume it is still binding because of its apparent similarity to the situation with which we are confronted in this inquiry. Of course, should the ABA resolve this apparent conflict, we would have to reconsider this opinion. For the present we are simply stating that C_798 is more to point, better reasoned and has not been expressly overruled.

Also, attorneys who are involved in public works such as board members or attorneys for governmental boards have a different obligation than an attorney in those situations involving private conflicts of interest.

As stated in ABA Informal Opinion No. 855:

"Generally speaking, any persons in public offices, including attorneys, have as their primary duty that of performing the functions of the office in a wholly honest, impartial, and ethical manner." (Emphasis supplied.)

Because lawyers are before the public and being compensated by public tax money they must avoid not only all evil but the mere appearance of it.

In most conflict of interests situations the lawyer or his firm is under a duty to only inform the parties interested and whom they represent and hopefully secure all persons' consent. However, in public affairs it has been held that such consent cannot be utilized by persons standing in a public or quasi-public position. (See ABA Formal Opinions 16, 34, 71, 77, 192; Informal C_691.)

We do not feel that our opinion would be changed by Inquiry No. 2, since this would not affect the public character of the work, but only the method of compensation. It would seem to us that your duties would remain substantially the same in either situation.