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OBA Ethics Counsel

Ethics Opinion No. 127

Adopted October 23, 1936

The Board is in receipt of the following:

"I served as County Attorney of ...... County during the years 1931 and 1932, and while in office filed a bastardy proceeding against one Judson Crow. This defendant employed a firm of attorneys to defend him in this action, and in payment for their services gave them a note. The bastardy proceeding was dismissed on the marriage of the defendant to the girl involved during the tenure of office of the writer.

The firm of attorneys who defended this action have requested that I file suit on the note to collect their attorney's fees. I would like to know if filing suit on this note, which represents attorney fees for the defense in the matter herein referred to, would be a violation of the ethics of the profession."

In response:

The rule of professional conduct which the inquirer probably has in mind is Rule 38, which, inter alia, states:

"A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity."

The situation presented does not come within the interdiction of Rule 38. Inquirer did not investigate nor pass upon the facts involved in the proposed litigation based upon the note. His employment to bring suit upon the note is too remote from the original matter to be considered as connected therewith within the spirit of the rule.