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OBA Ethics Counsel

Ethics Opinion No. 23

Adopted March 25, 1932

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

"Plaintiff brings a suit upon a written instrument for money due. Defendant employs a member of the State Bar of Oklahoma and informs him that the amount claimed is due and unpaid and that he executed the instrument sued upon but was not able at the time to meet the obligation, but did not desire a judgment to be entered against him, being of the opinion that within the course of time he will be able to pay off the claim. The defendant's attorney thereupon filed.

(a) a verified general denial, or;

(b) an unverified general denial and a plea of payment.

Was the defendant's attorney's action justified in the premises?

This custom of filing such answer or pleading has prevailed from time immemorial and the suggestion has been made that the procedure outlined has ripened into an accepted practice and is not therefore unethical."

In response:

The oath of office taken by the member of The State Bar upon his admission contains the affirmation that he will "delay no man for lucre or malice" in addition to the affirmation that "he will do no falsehood or consent that any be done in court," and that if he know of any he "will give knowledge thereof to the judges of the court or some one of them."

Cause 4 of the Causes for Disbarment, etc., is that a member of the bar "has been guilty of the violation of the oath taken by him upon his admission to the bar;" and Cause 8 thereof is that "he has been guilty of a wilful [sic] violation of any of the duties of an attorney or counsellor [sic]."

In addition to the foregoing the language of a portion of Rule 17 of the Rules of Professional Conduct is:

"In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client."

Rule 32 provides:

"The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong. But otherwise it is his right, and, having accepted retainer, it becomes his duty to insist upon the judgment of the Court as to the legal merits of his client's claim. His appearance in Court should be deemed equivalent to an assertion on his honor that in his opinion his client's case is one proper for judicial determination."

Rule 33 provides:

"No lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment. Every lawyer upon his own responsibility must decide what business he will accept as counsel, what causes he will bring into court for plaintiffs, what causes he will contest in court for defendants. The responsibility for advising as to questionable transactions, for bringing questionable suits, for urging questionable defenses, is the lawyer's responsibility. He cannot escape it by urging as an excuse that he is only following his client's instructions."

Rule 34 provides:

"No client, corporate or individual, however powerful, nor any cause, civil or political, however important, is entitled to receive nor should any lawyer render any service or advice involving disloyalty to the law whose ministers we are, or disrespect of the judicial office, which we are bound to uphold, or corruption of any person or persons exercising a public or private trust, or deception or betrayal of the public. When rendering any such improper service or advice, the lawyer invites and merits stern and just condemnation. Correspondingly, he advances the honor of his profession and the best interests of his client when he renders service or gives advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law. He must also observe and advise his client to observe the statute law, though until a statute shall have been construed and interpreted by competent, adjudication, he is free and is entitled to advise as to its validity and as to what he conscientiously believes to be its just meaning and extent. But above all a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen."

Section 29 of the State Bar Act provides that the rules of professional conduct shall be binding upon all members of The State Bar and the wilful breach of any such rules shall be punishable by suspension from the practice of law for one year.

It is the opinion of the Board of Governors that the action of the member of the bar in question is in violation of the obligations and duties of such member as provided in Rules of Professional Conduct, Nos. 17, 32, 33 and 34 and subjects him to the penalty therefor provided by Section 29 of the State Bar Act, constitutes a violation of his oath of office and constitutes a cause for the imposition of disciplinary measures under Causes 4 and 8 of the causes provided by the Board of Governors and approved by the Supreme Court.

The suggestion that the course adopted has ripened into accepted practice and is, therefore, not unethical is answered in the language of Judge Bourquin in United States v. Frank, and United States v. Gschrey, D.C., 53 F.2d 128:

"Such a custom were more honored in the breach than in the observance, and the situation required restatement of the law, to impress upon counsel that any such practice or custom is intolerable, indefensible, even criminal, must end, and to recall counsel to a keen sense of their duties and obligations voluntarily assumed. They must remember that, 'They, too, are officers of the courts, administrators of justice, oath-bound servants of society; that their first duty is not to their clients, as many suppose, but is to the administration of justice; that to this their client's success is wholly subordinate; that their conduct ought to and must be scrupulously observant of law and ethics; and to the extent that they fall therein, they injure themselves, wrong their brothers at the bar, bring reproach upon an honorable profession, betray the courts, and defeat justice'."