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OBA Ethics Counsel

Ethics Opinion No. 37

Adopted October 28, 1932

A member of the bar, having considered Advisory Opinion No. 27 appearing in the May 1932 Bar Journal, asks for a further opinion with reference to the second question propounded in the request for the opinion numbered 27, which is:

"Is it proper or permissible for an ex-County Attorney to accept employment to represent a tax ferret in the prosecution of an appeal from an adverse decision of the County Treasurer to the County Court, and to the Supreme Court, in a case where said ex-County Attorney during his term of office assisted in the presentation of the matter to the County Treasurer, and undertook to authorize and certify the appeal to the County Court in his official capacity as County Attorney?"

The member of the bar asks for the further opinion (a) suggesting that a tax ferret is not a party to proceedings for listing omitted property, but that the State of Oklahoma is the party plaintiff, citing In re Evans, 71 Okl. 87, 175 P. 510; In re Stewart Brothers, 53 Okl. 153, 155 P. 1124, and In re Boston Store, 53 Okl. 565, 157 P. 746; and (b) that the county attorney in question did not participate in the hearing before the county treasurer, made no investigation of facts, and that, while he did perfect the appeal to the county court from the adverse decision of the county treasurer, he did so merely upon the representation of the attorneys for the tax ferret that there was merit in the case. In view of that fact he states a question as follows:

"Is it proper or permissible for an ex-County Attorney to accept employment to assist the County Attorney in representing the State of Oklahoma in the prosecution of an appeal from the adverse decision of the County Treasurer to the County Court, and to the Supreme Court, in a case where said ex-County Attorney during his term of office, though not investigating the facts nor appearing before the County Treasurer, did appeal the case to the County Court?"

Rule 38 of the Rules of Professional Conduct provides:

"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."

It is the opinion of the Board, for the reasons stated in Advisory Opinion No. 27, that it is not proper for the ex-County Attorney to accept the employment referred to in the supplementary question propounded by the member of the bar. The very purpose of the rule would be thwarted were each case to depend upon the extent of the participation in, or the "passing upon," by the public officer, in a matter in which it is subsequently sought to employ him.

The broad scope of the rule is apparent. So long as it remains a rule it must be adhered to.