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OBA Ethics Counsel

Ethics Opinion No. 257

Adopted May 15, 1969

INQUIRY

1. Is it proper for a partner or associate of an attorney, who represents a board or commission of a city, to appear before other boards or commissions of the city?

2. Would the fact that the attorney is strictly on a fee basis rather than a monthly retainer or salary, make any difference?

OPINION

A and B are partners in private practice in a city in Oklahoma. Attorney A represents one of the municipal boards of said city on a monthly retainer basis. Attorney A does not represent the City per se but only a particular board. His Partner B does not represent the City or any other board. Attorney A has requested an opinion from this committee as to the ethical propriety of either A or B, individually or jointly representing other clients in matters subject to the jurisdiction of the City and other boards.

The membership of the particular board in question is appointed by the Mayor who, along with another commissioner, are ex-officio members of said board. The board itself was created by Charter Amendment to the City, a copy of such amendment was submitted to the committee along with Attorney A's request. A is the only attorney employed by the board and represents it in all legal matters affecting the Board. Authority for the board to employ an attorney is granted in the Charter Amendment subject to approval of the City Board of Commissioners. The Charter Amendment provides that all contracts and expenditures in excess of a certain stated amount by the board are subject to approval by the City Commissioners. All revenue derived from the board's operation is allocated to the general fund of the City and any appropriations for operations of the board are made out of the general fund of the city by its commissioners.

The questions raised are covered by Canon 6 of the American Bar Association Canons of Professional Ethics as adopted by the Oklahoma Bar Association. This canon provides in its pertinent parts as follows:

"... It is unprofessional to represent conflicting interests, except by express consent of all concerned given after 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 ...."

At the outset it should be noted that what may be unethical for one member of a law firm to do in a particular situation does not render such act ethical simply by permitting a partner or associate of the firm to do. This likewise extends to those lawyers who may not be partners according to a legal definition of a partnership but have close proximity or association (such as office and overhead sharing arrangements) with each other so as to imply to the public that a partnership exists. (See ABA Formal Opinions Nos. 33, 49, 103, 128; ABA Informal Opinions No. 691; ABA Advisory Opinion No. 162.)

The particular situation presented by these inquiries has been covered in ABA Informal Opinion No. C_798 rendered on October 26, 1964. In that opinion an attorney represented a client before a City Council acting as a Zoning Appeals Board while the attorney was representing an Urban Renewal Authority in an appeal before a local circuit court. The issue appeared to be resolved by a determination of whether the Authority was autonomous from the city. In finding that the authority was autonomous, the opinion emphasized the fact that the ordinance establishing such authority expressly stated that its employees were not employees of the city. In the facts presented to us no such provision exists in the Charter regarding the board's employees and therefore we assume that they are city employees. Furthermore, it is extremely doubtful that the Board is actually autonomous of the city. A review of the amendment provision pertaining to the Board indicates that the city commission must approve substantially all of the board's actions.

In all fairness, however, we should note that ABA Informal Opinion C_798 has been obscured or clouded by a subsequent informal opinion of the ABA. In Informal Opinion No. 855 rendered on May 31, 1965, the ABA Ethics Committee discusses in a general way representation problems of partnerships involved in municipal agencies and courts where members or associates of a firm all are members of, appointed or elected to various boards, courts or official attorney offices. Some situations are outlined where no conflict would exist. However, it is our opinion that this opinion completely ignores any discussion of the factor of autonomy and thus leaves unresolved a factor which the prior opinion deems controlling in these situations. Informal Opinion No. 855 discusses numerous situations in such a vague and unprecise [sic] manner that its value should be discounted. That opinion did not expressly overrule Informal Opinion No. C_ 798 and we therefore assume it is still binding because of its apparent similarity to the situation with which we are confronted in this inquiry. Of course, should the ABA resolve this apparent conflict, we would have to reconsider this opinion. For the present we are simply stating that C_798 is more to point, better reasoned and has not been expressly overruled.

Also, attorneys who are involved in public works such as board members or attorneys for governmental boards have a different obligation than an attorney in those situations involving private conflicts of interest.

As stated in ABA Informal Opinion No. 855:

"Generally speaking, any persons in public offices, including attorneys, have as their primary duty that of performing the functions of the office in a wholly honest, impartial, and ethical manner." (Emphasis supplied.)

Because lawyers are before the public and being compensated by public tax money they must avoid not only all evil but the mere appearance of it.

In most conflict of interests situations the lawyer or his firm is under a duty to only inform the parties interested and whom they represent and hopefully secure all persons' consent. However, in public affairs it has been held that such consent cannot be utilized by persons standing in a public or quasi-public position. (See ABA Formal Opinions 16, 34, 71, 77, 192; Informal C_691.)

We do not feel that our opinion would be changed by Inquiry No. 2, since this would not affect the public character of the work, but only the method of compensation. It would seem to us that your duties would remain substantially the same in either situation.