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OBA Ethics Counsel

Ethics Opinion No. 199

Adopted November 2, 1959

The Central Committee of the Oklahoma Bar Association has submitted to its Legal Ethics Committee the following inquiry:

INQUIRY

Can an Assistant County Attorney represent an applicant for beer license when in so doing he must present the application and conduct the hearing for the same before the County Judge, when under the law it is the duty of the County Attorney's office to represent any person contesting said license?

OPINION

Two categories of Assistant County Attorneys are recognized by the Oklahoma statutes. The first of these includes all full time assistants. They are forbidden the private practice of law. With respect to attorneys in this first category the answer must be an unqualified "no".

The statutes also recognize a category of Assistant County Attorney who, subject to certain restrictions, may continue the private practice of law. These restrictions are contained in 19 O.S.A. § 179.7(e). In addition, § 206 of the same Title prohibits such assistant county attorneys as are permitted by statute to engage in the private practice of law from accepting employment as counsel in "any case, or filing any type of civil action or proceeding on behalf of any person, firm or corporation in any manner arising from or out of or connected with any type of investigation, charge or proceeding conducted or instituted by the office of County Attorney with which he is connected."

While it is true that the great majority of applicants for the annual beer licenses are qualified and the preparation and presentation of the applications are routine matters, nevertheless, it is the opinion of the Committee for an Assistant County Attorney authorized by statute to conduct an outside practice, to accept such employment would constitute a violation of the second paragraph of Canon 6 of the Canons of Legal Ethics, which reads:

"It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."

Obviously, as indicated above, there would be no conflicting interests in many of these applications, but the possibility of conflicting interests arising is also quite obvious. It has been often held by the Ethics Committee of the American Bar Association and of numerous other state bar associations, that the "consent" referred to above may not be given in the case of public officials.

In addition, if such practice were permitted, the Committee feels that applicants for beer licenses, particularly those who might have some doubt as to their right to receive the permit, might feel that the act of employing a member of the staff of the County Attorney, whose duty it is to contest such applications, would result in a less thorough investigation perhaps later in a less energetic prosecution even should the assistant county attorney withdraw from representing the applicant upon the filing of a contest.

The Committee is not unmindful that many counties have neither the business nor means to justify full time assistant county attorneys, but nevertheless find it highly desirable to have such an attorney available. Such an assistant and his partners must give up all their criminal practice and all their civil practice to which the County is a party.

Any further restrictions would tend to make the employment of capable public servants difficult, but the Committee does not feel that this opinion constitutes a further restriction, but is merely recitive of an existing one.