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OBA Ethics Counsel

Ethics Opinion No. 137

Adopted September 17, 1937

"I was County Attorney of this county for a period of four years, my successor having qualified in January this year. During my encumbency [sic] it was necessary that I prosecute one X for the crime of driving an automobile while under the influence of intoxicating liquor. To the charge X entered a plea of guilty. Judgment and sentence, although deferred until after I had retired from office, was pronounced by the Court. While so driving X ran into and collided with a truck belonging to B. The collision ended X's driving as aforesaid. Now B desires to employ me as local counsel in a damage suit against X to collect damages caused at the time of the collision by X if any. While I was county attorney I did not pass upon any of the facts insofar as they related to the damages caused, if any. May I with propriety, now accept employment from B to represent him along with others, in the suit against X?"

In response:

In the opinion of the Board the question as to whether or not damages resulted from the collision, or the amount thereof, cannot be dissociated from an investigation of the facts involved in the collision, because if there were no liability there could be no legal claim for damages.

The mere facts presented bring the matter of the employment of the inquirer clearly within the purview of Rule 38 which prohibits his acceptance of employment in the suit brought by B against X. That rule provides:

"A member of the bar, having once held public office ... shall not after his retirement, accept employment in connection with any matter which he has investigated or passed upon while in such office or employ."