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OBA Ethics Counsel

Ethics Opinion No. 245

Adopted February 23, 1967

The Board of Directors of the Oklahoma Bar Association has requested this Committee to write an Opinion answering the following question:

INQUIRY

Can an attorney member of the Pardon and Parole Board of the State of Oklahoma or any member of his firm properly and ethically represent clients in criminal proceedings in the courts of the State of Oklahoma?

OPINION

The Pardon and Parole Board of the State of Oklahoma has the duty to make an impartial investigation and study of applicants for commutation, pardons, or paroles, and make its recommendation to the Governor of all deemed worthy of clemency and the Governor has the power to grant commutation, pardons and--or paroles for all offenses against the State of Oklahoma, except cases of impeachment, only after a favorable recommendation by a majority vote of the Board.

Thus it appears that the Board and its members have a wide latitude of quasi judicial authority over all those convicted of crimes under the laws of the State of Oklahoma. It further appears that the application for a pardon or parole or the commutation of a penalty imposed by law is a proceeding in which the State of Oklahoma is interested adversely to the convicted person. The second paragraph of Canon No. 6 of the Canons of Professional Ethics reads, "It is unprofessional to represent conflicting interest, except by expressed consent of all concerned given after a full disclosure of the facts."

A member of the Pardon and Parole Board is a public officer who draws a salary and a per diem expense as compensation paid by the State of Oklahoma, with designated duties and responsibilities clearly set out in the Constitution; and since the State is interested adversely to the convict, an attorney member of such Pardon and Parole Board or a member of his firm is guilty of unethical conduct in representing defendants in criminal cases in State courts. This Committee is of the opinion that the position of an attorney as a member of the Board and as a lawyer representing a client under the circumstances set out above is inherently antagonistic and this would be so irrespective of Canon No. 6. No question of consent can be involved as the public is concerned and it cannot consent. To permit a public official to engage in the representation of persons charged with crimes and at the same time to sit in a position of ultimate authority over the person's future punishment if convicted, would tend to diminish the public's confidence and respect for law enforcement.

An attorney, firm or member of a firm can serve but one master. When an attorney accepts a position of public responsibility, he is governed by the Canons of Ethics of his profession and it is his duty to strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only upon the law but the administration of justice. He should further avoid any act which would create disrespect for a public office or deception or betrayal of the public. He should seek the confidence of the public by avoidance of circumstances which might be suspect.

See Opinions No. 200 of the Oklahoma Bar Association and Opinions No. 16, 34, and 142 of the Committee on Professional Ethics of the American Bar Association.