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OBA Ethics Counsel

Ethics Opinion No. 39

Oklahoma Bar Association Legal Ethics Committee Advisory Opinions Opinion No. 39. Negotiations May Be Held Directly with Opposing Party Even Though the Opposing Party Has Discharged His Attorney and That Attorney Is Claiming Wrongful Discharge.

Adopted October 28, 1932

The following request for an opinion has been received by the Board:

"A an attorney has a written contract of employment from B to represent B in the negotiation, settlement and litigation of an alleged claim B has against X. Y as attorney for X has had under discussion with A as attorney for B the alleged claim. B has seryed notice by registered letter upon his attorney A of the cancellation of A's contract of employment and has advised Y as attorney for X of this cancellation and B's desire to negotiate the alleged claim direct or through another attorney. Y as attorney for X has notified attorney A of notice being given to Y of the cancellation of the contract and has requested A to advise what his position in the case is. Attorney A has replied that B has attempted to break the contract but that it is still in force and effect. What position does this place Y in as an attorney for X? No suit has been filed. Since attorney Y knows of the existence of the contract between B and his attorney A and also of the attempt to break the contract by B, must attorney Y carry on the further discussion with attorney A, or is attorney Y privileged to discuss B's case with B in accordance with B's desire? It is a matter in which X has instructed attorney Y to attempt to dispose of but Y does not know with whom he should carry on further discussion. An opinion upon this matter would be greatly appreciated."

B, the client, has the power, if under the circumstances not the right, to terminate A's contract of employment, whereupon A's representation of B ceases, B being liable in damages to A if the contract is wrongfully terminated.

Under the circumstances if Y's duty to his client X requires that he negotiate with B, and he does so, Y's conduct is not in contravention of Rule 11 of the rules of professional conduct, because A is no longer counsel for B in the premises.

Copied from Ethics At Your Fingertips(TM)Oklahoma Bar Association Legal Ethics Committee Advisory Opinions Opinion No. 231. Newspaper Advertisement or Letterhead Which Contains the Name of General Counsel of a Corporation, Etc. Which Might Reach the General Public Is Prohibited but Corporations May Identify the Attorney-director.

Adopted June 19, 1965

INQUIRY

In the periodic statement of condition published by some of the savings and loan associations in Oklahoma there customarily appears the name of a firm of attorneys or that of a single attorney identified as "counsel." If such attorney or firm of attorneys is also engaged in the general practice of law, is such a listing proper?

OPINION

This question has been asked of the Committee on several occasions. Because of the long-standing practice and cogent argument to the effect that there is a distinction between counsel for savings and loan asssociations [sic] and counsel for business corporations or even banks, based upon the restrictions placed upon counsel for savings and loan associations by law and the similarity between the "statement of condition" published by the building and loan association and a prospectus submitted to investors pursuant to the rules and regulations of the Securities and Exchange Commission, there has been such a division within the Ethics Committee of the Association (based also upon the awareness by members of the Committee of the high ethical standards of the members of the Bar who support such practice) that no opinion has been possible heretofore.

Fortuitously for the Committee, the exact question has been submitted to the Standing Committee on Professional Ethics of the American Bar Association; and in a recent opinion, designated Informal Decision No. 645, a digest of which appears in the July issue of the American Bar Association Journal at page 686, the ABA Committee held without equivocation that the publication of the name of the general counsel of a savings and loan association in a newspaper advertisement or statement of condition is prohibited as a violation of Canon 27 of the Canons of Legal Ethics.

It is, therefore, our opinion that if the name of the general counsel of a corporation or banking or savings and loan association appears in any newspaper advertisement or letterhead, or in any publication that may reach the general public, it is a violation of Canon 35 and of Canon 27; and, therefore, is prohibited.

This opinion should not be construed as being critical of the practice of identifying an attorney-director of a corporation as such in published lists of directors of any corporation where the occupation of all of the directors is so indicated. Such listing should not, however, identify such attorney as "Counsel for the Company" unless he is a full-time employee of the corporation.