Can a former city attorney who investigated a malpractice case while representing the city later represent the plaintiff against the codefendant doctors?

Plain-English summary

While city attorney, the inquirer had jointly represented the city in a damage suit brought against the city and a firm of physicians, alleging that a sponge was left in a patient after an operation in the city hospital and that the doctors and the hospital nurses were negligent. The city's bonding company settled the city's obligation, but the case against the physicians remained pending. The plaintiff, having discharged her former attorneys, wanted the former city attorney to represent her against the physicians. He saw no reason he could not, but asked the Board first. The interests of the city and the physicians had been adverse, because the doctors claimed the nurse's inaccurate sponge count caused the injury, which would place liability on the city rather than them.

The Board of Governors concluded that, under Rule 38, the inquirer could not accept the retainer. Rule 38 bars a lawyer who has held public office from accepting employment in a matter he investigated while in office. The Board assumed that, as city attorney, the inquirer had investigated all the facts surrounding the operation, including the physicians' conduct, and so had obtained information in his official capacity. Accepting the retainer would subject him to the suspicion of using that information for private clients, and the Board invoked ABA Opinion 49's principle that the profession must avoid even the appearance of evil. The Board added that the rule against using official knowledge for private benefit rests on sound public policy, and that the inquirer's lack of direct consultation with the physicians was a mere circumstance that created no exception. It cited ABA Opinions 26 and 49.

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 The rule cited here, Rule 38, belongs to that superseded canon-era code and does not correspond to the current Oklahoma Rules of Professional Conduct, which address former government lawyers in a separate provision. Treat this page as historical context, not current guidance.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: Could a former city attorney switch to represent the plaintiff against codefendants he had not personally dealt with?

A: The Board concluded no. Rule 38 barred employment in a matter he investigated in office, and the Board assumed he had investigated all the facts, including the physicians' conduct, as city attorney.

Q: Did it matter that he never consulted the doctors directly?

A: No. The Board called that a mere circumstance that did not create an exception; the concern was the information obtained in his official investigation and the appearance of using it privately.

Q: What principle underlay the prohibition?

A: The Board relied on the public-policy rule that an official may not later use official-capacity knowledge for private benefit, and on the duty to avoid even the appearance of evil from ABA Opinion 49.

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 while in office. The Board relied on ABA Opinions 26 and 49 and on its own Opinions 27, 32, and 37, treating the official investigation of the underlying facts as enough to bar the later private retainer. 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 accept employment in a matter he investigated while in office.

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, Opinion 26 (Vol. 55 Reports of A.B.A. 503): the rule forbids private employment in any matter involving the same facts the lawyer investigated in public employ.
• ABA Committee on Professional Ethics, Opinion 49: the profession must avoid even the appearance of evil.
• Oklahoma Board of Governors Opinions 27, 32, and 37: applying Rule 38.

See also

• Okla. Bar Ethics Op. 27: Former Judge or Official Representing a Prior Matter
• Okla. Bar Ethics Op. 37: Ex-County Attorney's Later Employment Despite Limited Participation
• Okla. Bar Ethics Op. 32: City Attorney's Firm as Special Prosecutor With Civil Claims

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-40/

Original opinion text

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

Adopted October 28, 1932

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

"In…(years)…I was City Attorney of the City of ……, Oklahoma. During that time a damage suit was filed against the City of …… and a firm of physicians and surgeons, jointly, alleging negligent operation on a patient in the City Hospital. Jointly with Mr. ……, I represented the City, but had no connection or consultation with the doctors in connection with their defense in the action.

The case was based upon the theory that the doctors operated on the plaintiff and sewed up the wound with a sponge in it and that the doctors were negligent and the nurses in the hopsital [sic] were negligent. Mr. ……, representing the City's bonding company, settled and paid off the City's obligation, but the case against the physicians is still pending and the plaintiff has discharged her former attorneys. They want me to represent her in her action against the physicians.

I do not see any reason why I cannot accept employment, but before doing so I thought best to take the matter up with you and with the Board of Governors and have you advise me whether or not it would be unethical for me to accept this employment. I only know from the answer filed by the doctors what their defense is. The interest of the City of …… and of the physicians were adverse because the doctors claimed that the sponge count by the nurse was inaccurate and caused the injury and therefore if any one was liable it was the City of ……, and not the doctors.

As this case will soon come up for trial, I would thank you for as speedy answer as possible on the question hereinbefore set out."

In response:

The inquirer is referred to Advisory Opinions No. 27 (May 1932 Journal), No. 32 (June 1932 Journal), and Opinion No. 37 (November 1932 Journal).

It is the opinion of the Board that, under the inhibition of Rule 38 of the Rules of Professional Conduct, the inquirer may not accept the retainer referred to in his letter. The broad scope of the rule is apparent. The rule provides that a lawyer, having once held public office or having been in the public employ, should not accept employment in connection with any matter which he has investigated while in such office or employ. It is to be assumed that in the line of his duty as a public official, to-wit, city attorney, the inquirer conducted an investigation into all of the facts and circumstances surrounding the operation including the conduct of the physicians, thereby in an official capacity necessarily obtaining a certain amount of information.

By accepting the retainer offered to him the inquirer would subject himself to the suspicion that, in his representation of his clients in his private capacity as an attorney, he was utilizing or would utilize information which he had acquired in the performance of his duties as a public officer. In Opinion No. 49 of the A. B. A.'s Committee it was said that "underlying these conclusions is the necessity for the maintenance of public confidence in the integrity of the profession" and "that if the profession is to occupy the 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."

The rule that a public official may not subsequently take advantage of knowledge or information obtained by him in the course of his official duties for the benefit of private individuals is too well founded upon sound principles of public policy to require further exposition. The fact that in the instant case the inquirer obtained no information through direct consultation with the physicians in question is a mere circumstance which does not create an exception to the general rule.

The inquirer is referred also to Opinion No. 26 of the American Bar Association's Committee on Professional Ethics and Grievances (Vol. 55 Reports of A. B. A., page 503) wherein it is said that the rule 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 employ as a lawyer, whether the same or different parties are concerned"; and to Opinion 49 of the same committee reported in the May 1932 issue of the A. B. A. Journal.