Can a former judge or former county attorney accept private employment in a matter he investigated, passed on, or decided while in office?

Plain-English summary

The Board was asked to apply Rule 38 of the Rules of Professional Conduct to three situations. Rule 38 provides that a lawyer should not accept employment as an advocate in any matter on whose merits he has previously acted in a judicial capacity, and that a lawyer who has held public office or been in public employ should not, after retirement, accept employment connected with any matter he investigated or passed on while in office. The three questions were: whether an ex-county judge could be employed to finish a probate matter commenced before him during his term; whether an ex-county attorney could represent a tax ferret on appeal in a matter he had assisted with and certified for appeal while county attorney; and whether a former district judge who had denied a widow's allowance in 1928 could later represent the heirs against the widow in a renewed action for the same allowance.

The Board concluded that, under the plain provisions of the rule, each question must be answered in the negative. It relied on ABA Opinion 49 and noted that Canon 36, discussed there, is identical with Rule 38. The opinion quoted the ABA committee's explanation that both paragraphs of the canon rest on the need to maintain professional integrity and public confidence in it, that a lawyer who has acted in a judicial capacity should refrain from employment in any matter involving the same facts he acted upon, and that the profession "must not only avoid all evil but must likewise avoid the appearance of evil."

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 The rule cited here, Rule 38 (drawn from ABA Canon 36), belongs to that superseded canon-era code and does not correspond to the current Oklahoma Rules of Professional Conduct, which address former judges and former government lawyers in separate provisions. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Could a former judge later represent a private party in a matter he had decided from the bench?

A: The opinion concluded no. The Board held Rule 38 barred a lawyer from acting as an advocate in a matter on whose merits he had previously acted in a judicial capacity.

Q: Could a former county attorney take private employment in a matter he had handled in office?

A: No. The Board held the second paragraph of Rule 38 barred a former public official from accepting employment connected with a matter he had investigated or passed on while in office.

Q: Why did the rule reach even the appearance of a conflict?

A: The Board, quoting ABA Opinion 49, grounded the rule in maintaining public confidence in the integrity of the profession, which requires lawyers to avoid even the appearance of evil.

Background and rules framework

The opinion applied Rule 38 of the then-current Oklahoma Rules of Professional Conduct, which the Board identified as identical to ABA Canon 36. The first paragraph addressed lawyers who had acted in a judicial capacity; the second addressed lawyers who had held public office or been in public employ. The Board read both paragraphs to bar later private employment in the same matter, relying on the ABA committee's interpretation in its Opinions 26, 39, and 49. These rules were patterned on the ABA Canons of Professional Ethics in force at the time.

Citations and references

Rules of Professional Conduct:

• Rule 38 (1929 Oklahoma Rules of Professional Conduct), identical to ABA Canon 36: a lawyer should not act as an advocate in a matter on whose merits he previously acted in a judicial capacity, nor, after public office, accept employment in a matter he investigated or passed on while in office.

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, Opinion 49: interpreting Canon 36 to require avoiding even the appearance of evil.
• ABA Opinions 26 and 39: construing the second paragraph of Canon 36 as to former public officials.

See also

• ABA Formal Op. 509: Confidential Government Information and Disqualification
• Okla. Bar Ethics Op. 24: Special Prosecutor With a Contingent Civil Claim
• Okla. Bar Ethics Op. 13: County Attorney Compensation Connected to Prosecution

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-27/

Original opinion text

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

Adopted April 29, 1932

The Board of Governors is in receipt of the following request for an advisory opinion:

"I call to your attention Rule 38 of the Rules of Professional Conduct, prepared by the Governors of The State Bar of Oklahoma, and approved by the Supreme Court of Oklahoma. This rule reads as follows:

'A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity. A lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ.'

1. Is it proper or permissible under this rule for an ex-County Judge to accept employment to finish or complete a probate matter which was commenced before him during his term of office?

2. Is it proper or permissible for an ex-County Attorney to accept employment to represent a tax ferret in the prosecution of an appeal from an adverse decision of the County Treasurer to the County Court, and to the Supreme Court, in a case where said ex-County Attorney during his term of office assisted in the presentation of the matter to the County Treasurer, and undertook to authorize and certify the appeal to the County Court in his official capacity as County Attorney?"

3. In September, 1928, in a probate matter appealed from the County Court to District Court, involving the question of a widow's allowance, the District Judge denied the widow's allowance.

An appeal was taken to the Supreme Court, which resulted in an opinion by the Supreme Court, in February, 1932, affirming the judgment of the District Court. Immediately thereafter the widow filed a direct action in the same District Court against the heirs and distributees asking for the same widow's allowance. The man who was District Judge in 1928 and rendered the opinion or judgment in this matter in September, 1928, is no longer a judge. The heirs and distributees, defendants in the last case filed in the District Court, seek to employ the man who was judge in 1928 to represent them in this last case.

Is he qualified to accept such employment?

In the opinion of the Board, under the plain provisions of the rule, each question must be answered in the negative.

The opinion is fortified by Opinion 49 of the Committee on Professional Ethics and Grievances of the American Bar Association appearing in the May Journal of the association.

Canon 36 referred to in that opinion is identical with Rule 38 of our Rules of Professional Conduct hereinbefore referred to.

In opinion 49 the Committee of the American Bar Association said:

"The first paragraph of Canon 36 reads as follows: 'A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity.' … Underlying these conclusions is the necessity for the maintenance of public confidence in the integrity of the profession. Canon 36 is divided into two paragraphs, the first applying to lawyers who have acted in a judicial capacity and the second to those who have held public office or been in public employ. In Opinion 26, we stated that the second paragraph of the canon: 'was intended to forbid a lawyer accepting private legal employment in any matter involving the same facts as were involved in any specific question which he had previously investigated while in public office or public employ.' and, in Opinion 39, when referring to Opinion 26 we stated that:

'The basis of this decision was that as a public legal official he was acting for the state, and he should not later accept any private employment in the same matter (whether for or against his former opinion or position), on account of the manifest possibility that his action as a public legal official might be influenced (or be open to the charge that it had been influenced) by the hope of later being employed privately either to uphold or upset what he had done.'

Both paragraphs of Canon 36 are based upon the necessity for the maintenance of professional integrity and for the maintenance of public confidence in that integrity. A lawyer who has previously occupied a judicial position or acted in a judicial capacity should refrain from accepting employment in any matter involving the same facts as were involved in any specific question which he acted upon in a judicial capacity and, for the same reasons, should also refrain from accepting any employment which might reasonably appear to involve the same facts. If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness it must not only avoid all evil but must likewise avoid the appearance of evil."