OBA Ethics Counsel
Ethics Opinion No. 192
Adopted September 11, 1957
The Central Committee of the Oklahoma Bar Association has submitted to its Legal Ethics Committee the following inquiry:
An attorney has sought the opinion of the Committee on the propriety of representing four heirs of a decedent, whose estate is being probated in the County Court, when he had formerly represented the administratrix of said estate in connection with her appointment, but had subsequently been discharged by her when he remonstrated with her concerning the disposal of what he considered to be property of the estate without proper authority from the court, even though in the course of his representation of the administratrix no confidences were reposed in him by her or other members of the family.
It is the opinion of the Committee that the lawyer may not with propriety represent an heir or any other person in a proceeding against the administratrix. Even though the administratrix reposed no matters of a confidential nature in said attorney, she was certainly in a position so to do, and the attorney was also in a position where he could well have acquired information which could be used to the detriment of the administratrix in any subsequent proceeding.
The last paragraph of Canon No. 6 of the Canons of Professional Ethics reads as follows:
"The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."
The first paragraph of Canon No. 37 of the Canons of Professional Ethics reads as follows:
"It is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client."
It is our opinion that the proposed employment described above would be in direct conflict with both of said Canons. Mr. Henry S. Drinker, in his authoritative work on legal ethics, at page 111, makes the following statement:
"One who has represented an administratrix may not accept employment to bring an action against her in connection with her duties as such."
He cites as authority for such statement an opinion of the American Bar Association and one from the State of Michigan.