Does opposing counsel's consent let a former city attorney take a case barred by the former-government-lawyer rule?

Plain-English summary

After Opinion 40 held that a former city attorney could not accept a retainer to represent plaintiffs in a personal-injury suit he had defended for the city while in office, the lawyer returned with a further fact: the attorney for the individual defendants did not object to his representing the plaintiffs, so it did not seem unethical to him to accept the employment.

The Board of Governors remained of the opinion that the lawyer could not ethically accept the employment despite that consent. It explained that Rule 38 makes no exception, and that Rule 8, which contains a consent clause, does not apply. Because Rule 38 rests on solid grounds of public policy, no question of consent can be involved where public policy is concerned. The Board cited ABA Opinion 77 (Aug. 27, 1932) for the same underlying principle that an attorney should avoid not only impropriety but the appearance of impropriety.

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 The rules cited here, Rules 38 and 8, belong to that superseded canon-era code and do not correspond to the current Oklahoma Rules of Professional Conduct, which address former government lawyers and consent to conflicts in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 Treat this page as historical context, not current guidance.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 consent by opposing counsel cure the former-city-attorney conflict?

A: The Board concluded no. It held Rule 38 admits no exception and that the consent clause of Rule 8 does not apply, because public policy cannot be waived by consent.

Q: Why doesn't Rule 8's consent provision help here?

A: The Board treated the bar as arising from Rule 38, which has no consent exception, rather than from Rule 8; where the prohibition rests on public policy, consent is irrelevant.

Q: How does this relate to Opinion 40?

A: Opinion 42 reaffirms Opinion 40 on the added fact of opposing counsel's consent, holding the result unchanged.

Background and rules framework

The opinion applied Rule 38 of the then-current Oklahoma Rules of Professional Conduct, barring a former public officer from later employment in a matter he handled in office, and distinguished Rule 8, the conflicts rule whose consent clause the Board held inapplicable. The Board grounded Rule 38 in public policy and cited ABA Opinion 77. 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): a former public officer should not accept employment in a matter he handled in office; no exception.
• Rule 8 (1929): conflicts may be undertaken by consent after full disclosure; held not to apply here.

Other opinions cited:

• ABA Committee on Legal Ethics, Opinion 77 (Aug. 27, 1932): an attorney should avoid impropriety and the appearance of impropriety.
• Oklahoma Board of Governors Opinion 40: the underlying ruling reaffirmed here.

See also

• Okla. Bar Ethics Op. 40: Former City Attorney Representing the Plaintiff Against Codefendant Doctors
• Okla. Bar Ethics Op. 37: Ex-County Attorney's Later Employment Despite Limited Participation
• Okla. Bar Ethics Op. 27: Former Judge or Official Representing a Prior Matter

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-42/

Original opinion text

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

Adopted November 25, 1932

In Advisory Opinion No. 40, it was stated to be the opinion of the Board that a member of the bar who had previously been City Attorney could not ethically, after retiring to private practice, accept a retainer to represent certain plaintiffs who, while the member of the bar was City Attorney, had brought a suit for personal injuries against the City and two individual defendants, the member of the bar, of course, representing the City in that case, other counsel representing the individual defendants. The member of the bar now states that the attorney of the individual defendants in the suit does not object to his representation of the plaintiffs and that it does not seem unethical for him to accept the employment.

The Board is still of the opinion that the member of the bar cannot ethically accept the employment, notwithstanding the consent of the attorney for the individual defendants.

Rule 38 makes no exception. Rule 8 containing the consent clause does not apply.

As has been said by the Board, Rule 38 is based upon solid grounds of public policy and no question of consent can be involved where a question of public policy is concerned.

We are fortified in our Opinion by the reasoning of the American Bar Association's Committee on Legal Ethics in its Opinion No. 77, rendered on August 27, 1932. While the situation in the instant case is not parallel with the situation considered by the American Bar Association's Committee, the underlying principles are the same. In that opinion it was said that "an attorney should not only avoid all impropriety but should likewise avoid the appearance of impropriety."