Could a newly appointed county attorney prosecute an embezzlement case against a person he had already sued and obtained a civil judgment against, while still trying to collect that judgment?

Plain-English summary

A lawyer's firm had filed a civil suit for certain heirs against an executor and his bondsmen to recover money the executor reported but failed to pay over, and obtained judgment in February 1935, on which only a small payment had been made. One of the clients then filed an embezzlement complaint against the same person, who was arrested; canceled checks paid out of the estate account formed much of the evidence of guilt. The lawyer was then appointed county attorney and, interested in collecting the balance of the judgment, asked whether any reason barred him from prosecuting the criminal case.

The Board concluded he could not, with propriety, proceed with the prosecution. It reasoned from the need to maintain public confidence in the integrity of the profession and the duty to avoid not only evil but the appearance of evil. It cited Rule 7, making the primary duty of a prosecutor not to convict but to see that justice is done, and Rule 30, the duty to uphold the honor and dignity of the profession. The situation was too susceptible of misconstruction because the prosecutor was personally interested, at least indirectly, in the result. The Board quoted 18 C.J. 1313, § 39 (and 27 C.J.S. District & Pros. Attys. § 12(6)) to the effect that a prosecutor with a personal interest, or who had appeared in a civil suit against the same party on substantially the same facts, should not act, even with the defendant's consent, and noted its prior Advisory Opinions Nos. 32 and 24.

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 The rules cited here, Rules 7 and 30, belong to that superseded canon-era code, though the principle that a prosecutor must be free of personal interest persists. 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 Treat this page as historical context, not current guidance.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 county attorney prosecute someone he was personally suing?

A: No. The opinion held the prosecutor could not properly proceed where he was personally interested, at least indirectly, in the outcome through a related civil judgment.

Q: What duties did the Board rely on?

A: Rule 7, the prosecutor's primary duty to see that justice is done rather than to convict, and Rule 30, the duty to uphold the honor and dignity of the profession.

Q: Could the defendant consent to let him prosecute anyway?

A: The authorities the Board quoted indicate not; a prosecutor who had appeared in a civil suit against the same party on substantially the same facts should not act even with the defendant's unqualified consent.

Background and rules framework

The opinion applied Rule 7 (the prosecutor's duty to see that justice is done) and Rule 30 (upholding the honor and dignity of the profession) of the canon-era Oklahoma Rules of Professional Conduct, drawn from the ABA Canons of Professional Ethics, and treatise authority on disqualification of an interested prosecutor. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 7 (1929 Oklahoma Rules of Professional Conduct): the primary duty of a prosecutor is not to convict but to see that justice is done.
• Rule 30 (1929 Oklahoma Rules of Professional Conduct): the duty to uphold the honor and maintain the dignity of the profession.

Other authorities:

• 18 C.J. 1313, § 39, and 27 C.J.S. District & Pros. Attys. § 12(6): a prosecutor with a personal interest, or who appeared in a civil suit against the same party on substantially the same facts, should not act.
• Oklahoma Advisory Opinions Nos. 32 and 24 (April 1933 Oklahoma State Bar Journal).

See also

• Okla. Bar Ethics Op. 84: Former county attorney defending a case he prosecuted
• Okla. Bar Ethics Op. 13: County attorney accepting compensation connected to a prosecution

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-90/

Original opinion text

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

Adopted July 26, 1935

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

"On last December 26th my firm filed suit for certain of the heirs of …………, deceased, against ………… and his bondsmen, to recover from ………… as executor of the ………… estate certain moneys which the said executor had reported in his final account but failed to pay over to the heirs. Judgment was rendered against the defendants on February 5th, 1935, and since then only a small payment has been made on the judgment. On March 11th, 1935, one of our clients filed a complaint against ………… charging him with the crime of embezzlement. He has been arrested and no further proceedings have been had on the criminal case. The County Attorney held a court of inquiry and by order of court came into possession of certain canceled checks written by ………. on the failed Security National Bank of ………… which checks were held by the liquidating agent of the bank, though paid before the bank failed. These checks were paid out of the ………….. estate account to ………… and drawn by him and payable to him and constitute in large part the evidence of his guilt. On the 19th inst. the County Attorney resigned and I was appointed to the office of County Attorney. Being interested in the collection of the balance of the judgment I write to inquire if there is, in your opinion, any reason why I should not proceed with the prosecution of the criminal case against …………."

In response:

The Board is of the opinion that the inquirer may not, with propriety, proceed in the prosecution.

This conclusion is based upon the necessity for the maintenance of public confidence in the integrity of the profession and upon the proposition that if the profession is to occupy that 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.

Rule 7 of the Rules of Professional Conduct states it to be the primary duty of an attorney engaged in a public prosecution not to convict but to see that justice is done. Rule 30 defines it to be the duty of a member of the bar at all times to strive to uphold the honor and to maintain the dignity of the profession.

The situation presented would be too susceptible of misconstruction because the member of the bar making the inquiry is personally interested, at least indirectly, in the result of the prosecution.

In this connection see 18 C.J. page 1313, Section 39, where it is said:

"If the prosecuting attorney has a personal interest in obtaining an acquittal or conviction, it may disqualify him. If he himself is involved in the offense under investigation he will not be allowed to conduct the prosecution. He should not act in a case if he has before appeared in a civil suit against the same party, based substantially upon the same facts, even if defendant gives his unqualified consent." See also 27 C.J.S. District & Pros. Attys. § 12(6).

This conclusion is supported by Advisory Opinion Nos. 32 and 24, both of which appear in the April, 1933, Oklahoma State Bar Journal.