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OBA Ethics Counsel

Ethics Opinion No. 106

Adopted February 28, 1936

The Board is in receipt of the following inquiry:

"During a prior City of ............ Administration,--approximately a year and a half ago--I was the City Attorney of the City of ............. At that time a number of suits were filed against the City of ......... to recover damages for the maintenance of a nuisance in the conducting of their sewage disposal plant, which actions I defended for the City as its Attorney.

Some of the parties plaintiff in those actions desire, at this time, to employ me as their attorney to institute action in their behalf seeking to recover damages from the city of ............ for the continuation of this same nuisance.

My office as City Attorney having expired and these actions being for the recovery of damages since the time of my service as City Attorney for the City of ............, does the fact that the damage is occasioned to the plaintiffs by the continued maintenance of this same nuisance in any manner disqualify me to act as the Attorney for the complaining parties, by reason of the fact that the damages are occasioned by the continuance of the same nuisance?

Necessarily none of the damages sought to be recovered could have been incorporated in the cause of action in the various actions defended by me."

In response:

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 that he has investigated or passed upon in said office or employ."

Rule 8 provides:

"The obligations to represent the client with undivided fidelity and not divulge his secrets or confidences forbids also the subsequent acceptances of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."

Under the clear provisions of the foregoing rules, the inquiring member of the bar may not accept the employment offered.