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OBA Ethics Counsel

Ethics Opinion No. 24

Adopted March 25, 1932

The Board of Governors is in receipt of the following request from a member of The State Bar:

"I have a client who is charged with murder. An attorney brought two damage suits against him for the minor children of the deceased on a contingent basis, with the words "Attorney's Lien Claimed" on the petitions. This Attorney at the request of the County Attorney appeared to assist in the prosecution of the criminal case. He receives nothing in the criminal case as compensation, except what he expects to receive in the civil actions. Objection was made to him appearing in the criminal action. The court overruled the objection and then appointed him as a special prosecutor without compensation to assist the County Attorney, over objection.

I maintain it is improper for him to appear in the criminal case under these circumstances. What is the opinion of the officers of The State Bar? May I hear from you?"

In response:

In the practice of law there are many matters involving the proprieties, or colloquially speaking "good taste," which cannot be controlled other than by the sensibilities of the individual members of the bar.

Rule 7 of the Rules of Professional Conduct states it to be the primary duty of an attorney engaged in a public prosecution not to convict but to see that justice is done. Rule 30 defines it to be the duty of a member of the bar at all times to strive to uphold the honor and to maintain the dignity of the profession.

It appears that the member of the bar involved is personally pecuniarily interested in the result of the civil suits. This fact may be said to have a tendency to cause the member of the bar to transgress the spirit of Rule 7 referred to. On the other hand it appears that he was requested to assist in the prosecution of the criminal case by the county attorney and was subsequently appointed a special prosecutor by the court.

Again it would not appear that success in the civil suits depends upon obtaining a conviction in the criminal case.

It cannot be assumed that the member of the bar involved will violate the spirit of Rule 7 and yet, under the circumstances the situation does not seem calculated to uphold the honor and to maintain the dignity of the profession.

About all that can be said upon the subject is that members of the bar should not be encouraged to allow themselves to be placed in similar situations.