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OBA Ethics Counsel

Ethics Opinion No. 32

Adopted May 27, 1932

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

"We have a question on legal ethics that we desire to have the judgment of yourself and committee, and that is this, viz., I am City Attorney of The Town of ............, we have approximately thirty-nine thousand dollars in funds involved in a bank failure here, and have two suits pending on bonds signed by people who were officers of the bank, we also have one suit pending for an individual against the officers of the bank for receiving the individual's deposit while according to our contention the bank was insolvent, which if we are correct, leaves a personal liability against the officers of the bank. Now, when the audit of the affairs of the bank is completed, several criminal prosecutions are contemplated against the officers of the bank, and the advisory committee of the liquidating agent who are large depositors in the insolvent bank and clients of ours, contemplate employing our firm to assist the County Attorney in prosecuting said officers on the criminal charges.

"What we would like to submit under the above statement of facts is whether it would be unethical on our part to accept such employment and assist in the prosecution as special prosecutors in said cases, and I might say in that matter, that I have had considerable experience in prosecution of criminal charges arising out of bank failures, having been the county attorney of this county, and I might say further that the actions criminally and civilly would in no way conflict and would be separate, yet we at all times desire to conform to the good ethics of the profession."

In response:

It is the duty of the County Attorney to prosecute violations of the criminal laws of the State and in the case stated it is not the duty of the City Attorney so to do. In this respect the case presented is different from the case presented in Opinion No. 39 of the American Bar Association committee on professional ethics. In that case a prosecuting attorney, in the performance of his official duty, joined with police officers and an agent of the Board of Underwriters in investigating the origin of a fire which destroyed a building which was insured. The facts were such as to arouse suspicion as to the responsibility of the assured for the fire, but the investigation did not produce information which would warrant the prosecution of the assured. Subsequently, the prosecuting attorney who, under the law of the State, is allowed to handle private cases, was employed by the assured to collect the insurance and, if necessary, to bring suit for that purpose. The opinion was:

"In the opinion of the committee it was professionally improper for the prosecuting attorney to accept the employment described in the question. Canon 36 of Professional Ethics provides that 'a lawyer, having once held public office or having been in the public employ, should not after his retirement accept employment in connection with any matter which he has investigated or passed upon while in such office or employ.' If a lawyer after his retirement from public office should not accept employment in connection with any matter which he has investigated or passed upon while in public office it seems clear that he should not accept such employment while he is still in public office.

"As stated in Opinion 30 the committee also believes that the provision of Canon 31 of Judicial Ethics to the effect that a judge 'who practices law is in a position of great delicacy and must be scrupulously careful to avoid conduct in his practice whereby he utilizes or seems to utilize his judicial position to further his professional success' is applicable to public prosecutors 'who should even at a personal financial sacrifice be and remain above suspicion'."

The facts presented in the request for an advisory opinion are substantially different from those in People ex rel. Colorado Bar Ass'n v. _______, 90 Colo. 440, 9 P.2d 611, where a prosecuting attorney, having the duty of prosecuting in connection with certain acts, also secured representation in the enforcement of civil liabilities growing out of the same state of facts, and apparently by threats of prosecution sought to obtain settlement of the civil claims. The Supreme Court of Colorado in that situation said:

"The merest novice in the profession should know that civil liabilities may not be enforced by threats of criminal prosecution any more than they may be enforced by threats of physical violence, and that any conduct which has the appearance of a resort to such course is as bad, in law, as the thing itself. If B did not use his public office to collect the claims of his private clients, he put himself in the position of appearing to do so and justified the charge. If a prosecutor in this state has a private interest in a criminal case under his jurisdiction, it is made the court's duty to appoint another to act for him. Section 5994, C.L.1921. In such case he should not act even by consent. 18 C.J. Sec. 39, P. 1312."

Upon a somewhat similar state of facts we said in Advisory Opinion No. 24 (April 1932 Bar Journal):

"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 suit 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."

With reference to Advisory Opinion No. 24, the Board of Governors desires to state that it is now of the opinion that the conclusion should have been stated that it was improper for the member of the bar to accept employment in the criminal case basing the conclusion upon the necessity for the maintenance of public confidence in the integrity of the profession and upon the proposition that "if the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must not only avoid all evil but must likewise avoid the appearance of evil." (See Opinion No. 49. A.B.A., Committee on Professional Ethics, May, 1932, A.B.A. Journal.)

In this connection, see 18 C.J., Page 1313, Section 39, where it is said:

"If the prosecuting attorney has a personal interest in obtaining an acquittal or conviction, it may disqualify him. If he himself is involved in the offense under investigation he will not be allowed to conduct the prosecution. He should not act in a case if he has before appeared in a civil suit against the same party, based substantially upon the same facts, even if defendant gives his unqualified consent."

While it is true that in the facts stated upon which Opinion No. 24 was based, the member of the Bar in question had not held public office as a prosecuting attorney, etc., and did not therefore come within the express provisions of Rule 38 of the State Bar Rules of Professional Conduct, we think substantially the same question is presented.

In Advisory Opinion No. 27 (May 1932, State Bar Journal) we stated the conclusion that a lawyer having once held public office or having been in the public employ should not, after his retirement, accept employment in connection with any matter which he had investigated while in such office or employ, (Rule 38, Rules of Professional Conduct) citing in support thereof Opinion No. 49 of the A. B. A.'s Committee on Professional Ethics (May 1932 A.B.A. Journal) wherein it was said that "underlying these conclusions is the necessity for the maintenance of public confidence in the integrity of the profession" and "if the profession is to occupy the same position in public esteem which will enable it to be of the greatest usefulness it must not only avoid all evil but must likewise avoid the appearance of evil."

The Board is of the opinion that to accept the employment referred to would be in violation of the spirit of Rule 31 of the Rules of Professional Conduct which provides that a lawyer should strive at all times to uphold the honor and to maintain the dignity of the profession, and of Rule 38 of such rules which provides that a lawyer having once held public office or having been in the public employ should not after his retirement accept employment in connection with any matter which he has investigated while in such office or employ.