OBA Ethics Counsel
Ethics Opinion No. 282
Adopted October 18, 1974
(1) Is it ethically proper for an attorney to employ as an associate an attorney who is simultaneously employed as a referee by the Oklahoma Court of Criminal Appeals?
(2) Is it ethically proper for an attorney to practice law before various municipal boards, commissions, courts, and council, etc., when the attorney shares offices and associates on a number of cases with another attorney who is employed by the city in question as assistant city manager?
(Inquiry No. 1)
The answer to Inquiry No. 1 is in the negative, for the reasons set out below.
Without otherwise discussing the ethical significance of the practice of law by a referee who is an officer of the court for a specific purpose, exercising judicial powers and authority, it must be pointed out that the practice of law by referee of the Oklahoma Court of Criminal Appeals is prohibited by statute. Under the provisions of 20 O.S.1971, § 50, a referee of the Court of Criminal Appeals is prohibited from engaging in the practice of law. This statute provides:
"The Court of Criminal Appeals may appoint three referees who shall be licensed to practice law in the State of Oklahoma, and who shall have had a minimum of two (2) years' experience as a licensed practicing attorney in the State of Oklahoma or as a judge of a court of record in the State of Oklahoma or both. The duties of the referee shall be prescribed by the Court of Criminal Appeals. Under the direction of the Court, the referees may hold hearings in any place in the State. Said referees shall receive an annual salary, payable monthly, in the same amount as that received by referees of the Supreme Court. Said referees shall, in performing duties assigned them by the Court of Criminal Appeals, be afforded mileage, and per diem in lieu of subsistence or subsistence expenses in lieu of per diem as authorized by law for State employees. No referee shall engage in the practice of law, nor hold any other office or position of profit under the United States or this State." (Emphasis added.) 20 O.S.1971, § 50.
Additional guidance as to the propriety of a referee practicing law is given by the Code of Judicial Conduct adopted by order of the Supreme Court of Oklahoma on July 15, 1974, the effective date of which is January 1, 1975, which provides in Canon 5(F):
"Practice of Law. A judge should not practice law, except as provided in 5 O.S. 1971, § 1 (which contains exceptions with respect to finishing pre-existing business not pertinent here.)"
The Code of Judicial Conduct provides a further guide to compliance with the Code which states:
"Anyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions, including an officer such as a referee in bankruptcy, special master, court commissioner, or magistrate, is a judge for the purpose of this Code. All judges should comply with this Code .... " (Emphasis added.)
In view of the statutory restriction placed upon the practice of law by referees of the Court of Criminal Appeals by 20 O.S.1971, § 50, as well as by the forthcoming Code of Judicial Conduct, it would be unethical for an attorney to aid the referee in such unlawful conduct by associating with him in the practice of law.
(Inquiry No. 2)
The answer to Inquiry No. 2 is in the negative for the following reasons.
In order to resolve the ethical considerations involved, an examination must first be made of the relationship between the attorney and those other attorneys with whom he is associated or shares offices. Representation which is unethical for one attorney to perform is likewise unethical if performed by his associate or partner. This Committee discussed the ethical considerations involved in group legal practice and office sharing arrangements in Oklahoma Bar Association (OBA) Opinion No. 257, 40 Okla. B. J. 1252, 1253 (1969), where we said:
"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, also, OBA Opinion No. 280, 45 Okla. B. J. 1602 (1974); OBA Opinion No. 162 (1952); OBA Opinion No. 88 (1935); OBA Opinion No. 78 (1934); American Bar Association (ABA) Formal Opinion No. 33 (1931); ABA Formal Opinion No. 104 (1934); ABA Informal Opinion No. 995 (1968); Drinker, Legal Ethics 106 (1953).
The resolution of this inquiry is then dependent upon the ethical considerations involved in the appearance of an attorney before various municipal boards, councils, commissions, and courts, etc., during the period of his part-time employment as Assistant City Manager of the city in question.
As stated in Ethical Consideration 5-14:
"Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant."
Although the attorney while employed as Assistant City Manager is not performing the functions of an attorney, he should in performing business or professional activities other than as an attorney adhere to the same standards of conduct and ethical considerations required of him as an attorney. See OBA Opinion No. 274, 44 Okla. B. J. 2157 (1973). Therefore, upon employment by the city, the attorney-city manager must comply with the same standards of conduct that are required of other attorneys employed in their professional capacities by a city.
Previous opinions of this committee have outlined the standards of ethical conduct required of attorneys employed to represent a city. Such an attorney must avoid even the appearance of an impropriety in his dealings with the city and its boards, commissions, councils, and courts.
Guidance is given to a lawyer-public official by Ethical Consideration 8-8 which states:
"A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties."
Aside from actual and potential conflicts of interest, the representation of clients by such an attorney before city bodies would mislead the public and create the impression of impropriety. This committee stated in OBA Opinion No. 200 (1959), that it would be unethical for a city attorney or other members of his law firm to represent and appear on behalf of clients before the city council, municipal boards, commissions, and courts. In OBA Opinion No. 257, 40 Okla. B. J. 1252 (1969), we held that it would be unethical for a partner or an associate of an attorney who represents a board of commission of a city, to appear before other boards or commissions of the city. In OBA Opinion No. 254, 39 Okla. B. J. 539 (1968), we stated that it is unethical for an attorney associated with an assistant district attorney to represent criminal defendants.
In Formal Opinion No. 192 (1939), the Committee on Ethics and Professional Responsibility of the American Bar Association stated that:
"If a firm member accepts temporary full-time employment with a private employer or government agency and retains his membership in the firm then the firm may represent parties adverse to the firm member's employer only after such employment ceases and only in connection with matters arising subsequent to the termination of employment."
ABA Informal Opinion No. 691 stated that it was unethical for the partner or associate of a City Solicitor to represent a property owner in an appeal before the city's Zoning Board of Adjustment, represent a client entering into a developer's agreement with the city, represent a client in a negligence claim against the city, or appeal a decision of the City Zoning Board. In Informal Opinion No. 1003 (1968), The Committee on Ethics and Professional Responsibility of the American Bar Association declared unethical the representation of private interests before city bodies by an attorney employed by the same city or his firm. There the Committee stated:
"It is unethical and improper for a city attorney who is on a regular annual retainer fee from the city to represent a client who files an application for a liquor license with the city council, the granting of which is opposed by the council. It is also unethical for a member of the same firm to appear before the city council in representation of private clients in applications for various licenses and other matters that might result in litigation between such persons and the city."
For the above reasons, it is ethically improper for an attorney to appear before the city council, municipal boards, commissions or courts of a city, or represent any interest differing from the interest of the city, when his associate, partner, or an attorney with whom he shares offices, is employed by that city or any of its boards, councils, commissions or courts in either an administrative, judicial, legal or other official capacity.