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OBA Ethics Counsel

Ethics Opinion No. 103

Adopted January 24, 1936

The Oklahoma State Board of Accountancy inquires:

"May a member of the State Bar who has accepted employment upon a contingent fee basis employ a certified public accountant upon an agreement that the accountant's compensation will come out of the contingent fee only, when and if collected, upon an agreed participation therein, and thereupon give to the accountant an assignment of the agreed interest in the contingent fee?"

In response:

The Board of Governors is of the opinion that he may not.

In Advisory Opinion No. 69, 1935 Year Book, the Board held that, "for obvious reasons," it would not be proper for a member of the bar, who was employed upon a contingent fee, to employ an engineer as an expert to assist him in the preparation of a case and to testify, agreeing to pay him for his services out of the contingent fee received by the member of the bar if and when collected. There is no distinction in principle between that situation and the one here presented. The board sees no reason to change its position upon the subject.

Surely, for instance, no such arrangement with a member of the medical profession in relation to personal injury suits could be tolerated. There is no distinction between that instance and the one under consideration.

The trial of a dispute in a court or before an administrative body ought to be an honest and earnest effort by members of the bar and all persons concerned, be they investigators or witnesses, to develop the whole truth and all the facts. It is unfortunate enough when, ex necessitate, a witness is an interested person; and certainly the practice by members of the bar as a course of conduct of premeditatingly creating persons into interested witnesses by an arrangement such as suggested is not to be encouraged.

If the accountant sought to be employed is to be used in the capacity of a witness, the situation presented would be intolerable. There may be accountants who are of such strong moral stamina, high honor and self sacrificing spirit as to enable them to withstand even a subconscious temptation to flavor their testimony in their self interest, but the proper conception of a witness does not tolerate the voluntary placing of him in a position which would offer a possible temptation to the average man, in his self interest, not to tell the truth, the whole truth and nothing but the truth. To acquiesce in the arrangement suggested, even though it were not interdicted by the rules of professional conduct, would not be conducive to the proper administration of justice.

Independent of the foregoing, it is to be noted that such a course of conduct is prohibited by Rule 36 of the Rules of Professional Conduct of the State Bar of Oklahoma, which provides:

"No division of fees for legal services is proper, except with another lawyer based upon a division of services or responsibility."

If the accountant is sought to act merely as an investigator, a narrower question is presented. The member of the bar premeditatively has placed the accountant in a position where his compensation is predicted solely upon the success of the client. He is not an officer of the court; he is not restrained by an oath not to urge a false cause; and he is under no compulsion of an ethical nature so far as the administration of justice is concerned. However that may be, an arrangement such as suggested is interdicted by Rule 44, which provides:

"A lawyer may not properly agree with a client that the lawyer shall pay or bear the expense of litigation; he may, in good faith, advance expenses as a matter of convenience, but subject to reimbursement."