Could a former county attorney, after leaving office, defend the very people he had charged and bound over while serving as prosecutor?

Plain-English summary

A lawyer whose term as county attorney expired on January 7, 1935, reentered general practice. While county attorney, he had filed a complaint against two persons charged with crime, represented the State at the preliminary hearing (at which the two were bound over to district court), and filed the information against them in district court. The two now wished to retain him to defend them at final trial in district court, and he asked whether he could properly accept the employment.

The Board concluded he could not. It quoted Rule 38: "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." Because the former county attorney had investigated and acted on the same matter while in office, the rule barred him from defending the charges.

Currency note

This opinion was issued in 1935, 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 The rule cited here, Rule 38, belongs to that superseded canon-era code, though its principle survives in the modern rule on former government lawyers. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a former prosecutor defend the same defendants he had charged?

A: No. The opinion held that Rule 38 barred a former public officer from accepting employment connected with a matter he investigated or passed upon while in office.

Q: Did it matter that he had already left the county attorney's office?

A: No. Rule 38 applied specifically to employment accepted "after his retirement" from public office, so leaving office did not cure the conflict.

Background and rules framework

The opinion applied Rule 38 of the canon-era Oklahoma Rules of Professional Conduct in its successive-government-employment form, barring a former public officer from accepting employment connected with a matter he investigated or passed upon in office, drawn from the ABA Canons of Professional Ethics. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 38 (1929 Oklahoma Rules of Professional Conduct): a lawyer who held public office or was in public employ should not after retirement accept employment connected with any matter he investigated or passed upon while in office.

See also

• Okla. Bar Ethics Op. 82: A former judge as advocate on the merits
• Okla. Bar Ethics Op. 80: The no-contact rule applies to county attorneys

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-84/

Original opinion text

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

Adopted January 25, 1935

A member of the bar whose term as county attorney expired on January 7, 1935, reentered the general practice. While county attorney, and in the performance of his official duties as such, he filed a complaint against two persons charged with crime and represented the State at the preliminary hearing, at the conclusion of which the two persons were bound over to the District Court for trial. As county attorney he filed the information against the persons in the District Court.

The two persons named now desire to retain the member of the Bar to defend them against the charges upon final trial in the District Court.

The member of the Bar desires an opinion as to whether or not with propriety, he may accept the employment.

In response:

Under the circumstances related, the member of the Bar may not accept the employment. 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."