OBA Ethics Counsel
Ethics Opinion No. 112
Adopted June 19, 1936
In a disciplinary proceeding recently heard by the Board of Governors it appeared that certain members of the bar of a city in this state had entered into a contract with the city to represent it upon a contingent basis in connection with certain suits to be brought by the city to recover damages in its behalf. Thereafter "X", another member of the bar of said city, was elected a member of the city commission. He qualified and became the mayor of the city. Thereafter, he declared his desire to become associated with the members of the bar employed by the city in the litigation aforesaid. As a result, he became associated with them upon an arrangement whereby the other members assigned to him an interest in the previously stipulated contingent fee. "X" engaged in the litigation, which resulted in a settlement thereof, which, of course, had to be approved by the city commission of which "X" was a member.
The conduct of "X" is condemned.
Section 5963, O.S.1931, 62 Okl. St.Ann. § 371 provides:
"No board of county commissioners, nor city council nor board of trustees of any township, or town, nor any district board of any school district in this State shall make any contract with any of its members, or in which any of its members shall be directly or indirectly interested; and that all contracts made in violation of this section shall be wholly void."
While it does not appear that "X" contracted directly with the city, his participation in the litigation as an attorney for the city, for a consideration, while he was a member of the city commission was in violation of the public policy of the State of Oklahoma as declared by Section 5963 supra.
By this action in interpolating himself into the litigation, "X" was also guilty of a violation of Rule 9 of the rules of professional conduct which interdicts "Efforts, direct or indirect, in any way to encroach upon the business of another lawyer", as unworthy of member of the bar.
Furthermore, when it became necessary for the city commission to approve or to disapprove the proposed settlement of the litigation, "X", as a member of the commission, acted thereupon. By so doing he placed himself in a position where his interest in securing his portion of the contingent fee might easily have unduly influenced him, even though subconsciously, in his determination of the merits of the proposed settlement. As the board has repeatedly said, "It is the duty of a member of the bar, not only to avoid all impropriety, but also to avoid the appearance of impropriety". Furthermore, a member of the bar shall refrain from creating a condition, regardless of express prohibition, which might tend to bring you all reproach on the profession.