Can an ex-county attorney who only perfected an appeal while in office, without investigating the facts, later be employed in that same case?

Plain-English summary

A member of the bar, having read the Board's Opinion 27, asked for a further opinion on the second question there: whether an ex-county attorney could represent a tax ferret on appeal from the county treasurer to the county court and the Supreme Court, in a matter the ex-county attorney had certified and appealed while in office. The inquirer added two points: that the State, not the tax ferret, is the party plaintiff in proceedings to list omitted property (citing several Oklahoma cases), and that the county attorney had not participated in the hearing before the treasurer or investigated the facts, but had perfected the appeal merely on the tax-ferret attorneys' representation that the case had merit.

The Board of Governors concluded it remained improper, for the reasons stated in Opinion 27. Rule 38 provides that a lawyer who has held public office should not, after retirement, accept employment in connection with any matter he investigated or passed on while in office. The Board reasoned that the very purpose of the rule would be thwarted if each case turned on the extent of the officer's participation or "passing upon" the matter. It stressed the broad scope of the rule and that, so long as it remains a rule, it must be adhered to.

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 The rule cited here, Rule 38, belongs to that superseded canon-era code and does not correspond to the current Oklahoma Rules of Professional Conduct, which address former government lawyers in a separate provision. Treat this page as historical context, not current guidance.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

Common questions

Q: Did limited participation in office let the ex-county attorney take the later employment?

A: No. The Board held Rule 38 applies regardless of the extent of participation; perfecting the appeal while in office was enough to bar later employment in the matter.

Q: Why wouldn't the Board weigh how little the officer did?

A: The Board reasoned that the rule's purpose would be thwarted if each case depended on measuring the degree of the officer's participation or "passing upon" the matter.

Q: How does this relate to Opinion 27?

A: Opinion 37 answers a supplementary question raised after Opinion 27 and reaches the same result, reaffirming the broad reach of Rule 38.

Background and rules framework

The opinion applied Rule 38 of the then-current Oklahoma Rules of Professional Conduct, which barred a former public officer from accepting employment in a matter he investigated or passed on while in office. The Board read the rule broadly, declining to make its application depend on how much the officer had done in the matter while in office. The analysis follows the Board's reasoning in Opinion 27. This rule was 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): a lawyer who has held public office should not, after retirement, accept employment in a matter he investigated or passed on while in office.

Cases:

• In re Evans, 71 Okl. 87, 175 P. 510; In re Stewart Brothers, 53 Okl. 153, 155 P. 1124; In re Boston Store, 53 Okl. 565, 157 P. 746 (cited by the inquirer for the proposition that the State is the party plaintiff in omitted-property proceedings).

Other opinions cited:

• Oklahoma Board of Governors Opinion 27: applying Rule 38 to former judges and public officers.

See also

• Okla. Bar Ethics Op. 27: Former Judge or Official Representing a Prior Matter
• Okla. Bar Ethics Op. 32: City Attorney's Firm as Special Prosecutor With Civil Claims
• ABA Formal Op. 509: Confidential Government Information and Disqualification

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-37/

Original opinion text

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

Adopted October 28, 1932

A member of the bar, having considered Advisory Opinion No. 27 appearing in the May 1932 Bar Journal, asks for a further opinion with reference to the second question propounded in the request for the opinion numbered 27, which is:

"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?"

The member of the bar asks for the further opinion (a) suggesting that a tax ferret is not a party to proceedings for listing omitted property, but that the State of Oklahoma is the party plaintiff, citing In re Evans, 71 Okl. 87, 175 P. 510; In re Stewart Brothers, 53 Okl. 153, 155 P. 1124, and In re Boston Store, 53 Okl. 565, 157 P. 746; and (b) that the county attorney in question did not participate in the hearing before the county treasurer, made no investigation of facts, and that, while he did perfect the appeal to the county court from the adverse decision of the county treasurer, he did so merely upon the representation of the attorneys for the tax ferret that there was merit in the case. In view of that fact he states a question as follows:

"Is it proper or permissible for an ex-County Attorney to accept employment to assist the County Attorney in representing the State of Oklahoma in the prosecution of an appeal from the 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, though not investigating the facts nor appearing before the County Treasurer, did appeal the case to the County Court?"

Rule 38 of the Rules of Professional Conduct provides:

"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."

It is the opinion of the Board, for the reasons stated in Advisory Opinion No. 27, that it is not proper for the ex-County Attorney to accept the employment referred to in the supplementary question propounded by the member of the bar. The very purpose of the rule would be thwarted were each case to depend upon the extent of the participation in, or the "passing upon," by the public officer, in a matter in which it is subsequently sought to employ him.

The broad scope of the rule is apparent. So long as it remains a rule it must be adhered to.