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OBA Ethics Counsel

Ethics Opinion No. 33

Adopted June 24, 1932

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

"A brings a suit against a school district to recover for some property which he has sold to the school district. There was no appropriation made and this purchase was illegal. A lawyer whom we will call § is hired to represent the school district, and he files a general denial, but does not plead the lack of appropriation or the invalidity of the contract. A judgment is rendered against the school district. Then, the taxpayers file a motion to vacate the judgment and S, the lawyer who formerly represented the school district, appears representing the plaintiff and opposing the motion to vacate the judgment. Then, certain citizens bringing a suit against A in which they sought a recovery of this money and the penalty provided for under the Statute and § appears in that case representing the plaintiff in the first suit. Then, later when a levy is attempted to be made to pay the judgment, the taxpayers protest the levy and § appears in opposition to this protest and represents the judgment holder.

Is this conduct permissible, and can a lawyer appear in this capacity without violating his oath of office and his obligation as a lawyer?"

If S, the lawyer, was a party to a plan or scheme to evade the provisions of Section 8638, C.O.S.1921, 62 Okl. St. Ann. § 479, he was guilty of a violation of his oath of office, and of Rules 17, 31 and 34 of the Rules of Professional Conduct promulgated by the State Bar and approved by the Supreme Court.

The oath provides that a member of the bar "shall support, protect, and defend the Constitution of the State of Oklahoma," and that he "shall not knowingly promote any unlawful suit, or give aid or consent to the same."

Rule 17 provides:

"But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client."

Rule 31 provides that a member of the bar "should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice."

Rule 34, among other things, provides, that a member of the bar "must also observe, and advise his client to observe, the law."

Rule 8 of the Rules of Professional Conduct is as follows:

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

The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."

S, the lawyer, in resisting the vacation of judgment, by representing the plaintiff in that proceeding, violated the provisions of Rule 8.