Ethics Counsel on www.OKbar.org

OBA Ethics Counsel

Ethics Opinion No. 139

Adopted September 27, 1937

The Board is in receipt of the following request for an opinion:

"One John Doe is jointly charged with embezzlement of school funds in the District Court of ............ County with the former Treasurer of the Board of Education of the City of .................., Oklahoma. I represented John Doe in the preliminary and was present the day he was arraigned in the District Court and appeared as his counsel of record.

Since that time I have been appointed attorney for the Board of Education of the City of ............, Oklahoma. Should I now withdraw as attorney for the defendant in the criminal action?

The Board of Education has certain suits pending against the bondsmen of the former Treasurer. The former attorney of the School Board has been retained to pursue these suits to a final determination."

In response:

At the outset it is to be noted that it does not appear from the facts presented whether or not, by the acceptance of professional employment from the Board, it became the duty of the inquirer to proceed with the prosecution against the treasurer. It is assumed that that is not the fact, because so to do would clearly violate Rules 8 and 39 of the rules of professional conduct. While the facts are somewhat dissimilar the principles laid down in advisory opinion 93, page 164, Vol. 1, Adv. Op., control the instant situation.

It is the opinion of the Board, that, for obvious reasons, the inquirer should withdraw from further representation of John Doe. By reason of the fact that the inquirer represents the board generally it is not seemly that he should defend a person charged with the embezzlement of its funds. To do so, under the circumstances detailed, could not, in its most favorable aspects, avoid the appearance of impropriety. Passing by the possibility that the inquirer, either consciously or sub-consciously may use information obtained by reason of his easy access to the records of the Board, and other information which, by reason of his representation thereof might be obtained--even though there are other sources of information available--the Board concludes by quoting the last paragraph of Advisory Opinion 93:

"The Board has had repeated occasion to say that it is the duty of a member of the bar, not only to avoid all impropriety but also to avoid the appearance of impropriety; and (Rule 31), to strive at all times to uphold the honor and maintain the dignity of the profession; and that, generally speaking, a member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach on the profession, and, that personal sacrifice of financial reward in such case adds to professional honor and dignity and elevates the profession in public esteem, marking clear the distinction between a trade or business, and the profession."