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OBA Ethics Counsel

Ethics Opinion No. 40

Adopted October 28, 1932

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

"In...(years)...I was City Attorney of the City of ......, Oklahoma. During that time a damage suit was filed against the City of ...... and a firm of physicians and surgeons, jointly, alleging negligent operation on a patient in the City Hospital. Jointly with Mr. ......, I represented the City, but had no connection or consultation with the doctors in connection with their defense in the action.

The case was based upon the theory that the doctors operated on the plaintiff and sewed up the wound with a sponge in it and that the doctors were negligent and the nurses in the hopsital [sic] were negligent. Mr. ......, representing the City's bonding company, settled and paid off the City's obligation, but the case against the physicians is still pending and the plaintiff has discharged her former attorneys. They want me to represent her in her action against the physicians.

I do not see any reason why I cannot accept employment, but before doing so I thought best to take the matter up with you and with the Board of Governors and have you advise me whether or not it would be unethical for me to accept this employment. I only know from the answer filed by the doctors what their defense is. The interest of the City of ...... and of the physicians were adverse because the doctors claimed that the sponge count by the nurse was inaccurate and caused the injury and therefore if any one was liable it was the City of ......, and not the doctors.

As this case will soon come up for trial, I would thank you for as speedy answer as possible on the question hereinbefore set out."

In response:

The inquirer is referred to Advisory Opinions No. 27 (May 1932 Journal), No. 32 (June 1932 Journal), and Opinion No. 37 (November 1932 Journal).

It is the opinion of the Board that, under the inhibition of Rule 38 of the Rules of Professional Conduct, the inquirer may not accept the retainer referred to in his letter. The broad scope of the rule is apparent. The rule provides that a lawyer, having once held public office or having been in the public employ, should not accept employment in connection with any matter which he has investigated while in such office or employ. It is to be assumed that in the line of his duty as a public official, to-wit, city attorney, the inquirer conducted an investigation into all of the facts and circumstances surrounding the operation including the conduct of the physicians, thereby in an official capacity necessarily obtaining a certain amount of information.

By accepting the retainer offered to him the inquirer would subject himself to the suspicion that, in his representation of his clients in his private capacity as an attorney, he was utilizing or would utilize information which he had acquired in the performance of his duties as a public officer. In Opinion No. 49 of the A. B. A.'s Committee it was said that "underlying these conclusions is the necessity for the maintenance of public confidence in the integrity of the profession" and "that if the profession is to occupy the 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 rule that a public official may not subsequently take advantage of knowledge or information obtained by him in the course of his official duties for the benefit of private individuals is too well founded upon sound principles of public policy to require further exposition. The fact that in the instant case the inquirer obtained no information through direct consultation with the physicians in question is a mere circumstance which does not create an exception to the general rule.

The inquirer is referred also to Opinion No. 26 of the American Bar Association's Committee on Professional Ethics and Grievances (Vol. 55 Reports of A. B. A., page 503) wherein it is said that the rule was "intended to forbid a lawyer accepting private legal employment in any matter involving the same facts as were involved in any specific question which he had previously investigated while in public employ as a lawyer, whether the same or different parties are concerned"; and to Opinion 49 of the same committee reported in the May 1932 issue of the A. B. A. Journal.