Can a lawyer who represented a school district then switch to represent the opposing party against the district, and assist a scheme to evade an appropriation statute?

Plain-English summary

A man sued a school district to recover for property he had sold it, although no appropriation had been made and the purchase was illegal. The lawyer, "S," hired to represent the school district, filed only a general denial and did not plead the lack of appropriation or the invalidity of the contract, and judgment was rendered against the district. When taxpayers moved to vacate the judgment, S appeared for the plaintiff and opposed the motion to vacate, and he continued to appear for the plaintiff's side in related suits and in opposing the taxpayers' protest of the tax levy to pay the judgment. The inquiry asked whether this was permissible.

The Board of Governors gave two answers. First, if S was a party to a plan or scheme to evade Section 8638, C.O.S. 1921 (the appropriation statute), he violated his oath of office, which forbids knowingly promoting any unlawful suit, and Rules 17, 31, and 34, which require the lawyer to act within the bounds of the law, uphold the dignity of the profession, and observe and advise the client to observe the law. Second, the Board concluded that by resisting the vacation of judgment on behalf of the plaintiff, S represented interests conflicting with those of his former client the school district, in violation of Rule 8. Rule 8 makes it unprofessional to represent conflicting interests except by express consent after full disclosure, and forbids accepting later employment in matters adversely affecting an interest of a client as to which confidence has been reposed.

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 The rules cited here, Rules 8, 17, 31, and 34, belong to that superseded canon-era code and do not correspond to the current Oklahoma Rules of Professional Conduct, which address conflicts and duties to former clients in separate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 Treat this page as historical context, not current guidance.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 lawyer who represented the school district later appear for the opposing party against it?

A: The Board concluded no. It held that resisting the motion to vacate the judgment on behalf of the plaintiff put S in conflict with his former client the school district, in violation of Rule 8.

Q: What if the lawyer helped a scheme to evade the appropriation statute?

A: The Board concluded that if S was party to a plan to evade the statute, he violated his oath of office and Rules 17, 31, and 34, which bar promoting unlawful suits and require obedience to the law.

Q: Did Rule 8 allow the dual representation with consent?

A: Rule 8 permitted representing conflicting interests only by express consent of all concerned after full disclosure. The opinion did not find such consent and treated the representation as a violation.

Background and rules framework

The opinion applied Rule 8 of the then-current Oklahoma Rules of Professional Conduct, which made it unprofessional to represent conflicting interests absent express consent after full disclosure and forbade later employment adverse to a client's interests as to which confidence had been reposed. It also applied Rules 17, 31, and 34 and the lawyer's oath, which together require the lawyer to act within the law, uphold the profession's dignity, and not promote unlawful suits. The statute at issue was Section 8638, C.O.S. 1921, governing appropriations. These rules were patterned on the ABA Canons of Professional Ethics in force at the time.

Citations and references

Rules of Professional Conduct:

• Rule 8 (1929 Oklahoma Rules of Professional Conduct): it is unprofessional to represent conflicting interests except by express consent after full disclosure.
• Rule 17 (1929): the lawyer's trust is to be performed within the bounds of the law.
• Rule 31 (1929): a lawyer should uphold the honor and dignity of the profession.
• Rule 34 (1929): a lawyer must observe, and advise his client to observe, the law.

Statutes:

• Section 8638, C.O.S. 1921 (62 Okl. St. Ann. § 479): appropriation requirement at issue in the underlying transaction.

See also

• ABA Formal Op. 497: Conflicts From Materially Adverse Interests
• ABA Formal Op. 479: The "Generally Known" Exception for Former Clients
• Okla. Bar Ethics Op. 28: Representing Both a Bankrupt and Creditors

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-33/

Original opinion text

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

Adopted June 24, 1932

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

"A brings a suit against a school district to recover for some property which he has sold to the school district. There was no appropriation made and this purchase was illegal. A lawyer whom we will call § is hired to represent the school district, and he files a general denial, but does not plead the lack of appropriation or the invalidity of the contract. A judgment is rendered against the school district. Then, the taxpayers file a motion to vacate the judgment and S, the lawyer who formerly represented the school district, appears representing the plaintiff and opposing the motion to vacate the judgment. Then, certain citizens bringing a suit against A in which they sought a recovery of this money and the penalty provided for under the Statute and § appears in that case representing the plaintiff in the first suit. Then, later when a levy is attempted to be made to pay the judgment, the taxpayers protest the levy and § appears in opposition to this protest and represents the judgment holder.

Is this conduct permissible, and can a lawyer appear in this capacity without violating his oath of office and his obligation as a lawyer?"

If S, the lawyer, was a party to a plan or scheme to evade the provisions of Section 8638, C.O.S.1921, 62 Okl. St. Ann. § 479, he was guilty of a violation of his oath of office, and of Rules 17, 31 and 34 of the Rules of Professional Conduct promulgated by the State Bar and approved by the Supreme Court.

The oath provides that a member of the bar "shall support, protect, and defend the Constitution of the State of Oklahoma," and that he "shall not knowingly promote any unlawful suit, or give aid or consent to the same."

Rule 17 provides:

"But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client."

Rule 31 provides that a member of the bar "should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice."

Rule 34, among other things, provides, that a member of the bar "must also observe, and advise his client to observe, the law."

Rule 8 of the Rules of Professional Conduct is as follows:

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

The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."

S, the lawyer, in resisting the vacation of judgment, by representing the plaintiff in that proceeding, violated the provisions of Rule 8.