OBA Ethics Counsel
Ethics Opinion No. 42
Adopted November 25, 1932
In Advisory Opinion No. 40, it was stated to be the opinion of the Board that a member of the bar who had previously been City Attorney could not ethically, after retiring to private practice, accept a retainer to represent certain plaintiffs who, while the member of the bar was City Attorney, had brought a suit for personal injuries against the City and two individual defendants, the member of the bar, of course, representing the City in that case, other counsel representing the individual defendants. The member of the bar now states that the attorney of the individual defendants in the suit does not object to his representation of the plaintiffs and that it does not seem unethical for him to accept the employment.
The Board is still of the opinion that the member of the bar cannot ethically accept the employment, notwithstanding the consent of the attorney for the individual defendants.
Rule 38 makes no exception. Rule 8 containing the consent clause does not apply.
As has been said by the Board, Rule 38 is based upon solid grounds of public policy and no question of consent can be involved where a question of public policy is concerned.
We are fortified in our Opinion by the reasoning of the American Bar Association's Committee on Legal Ethics in its Opinion No. 77, rendered on August 27, 1932. While the situation in the instant case is not parallel with the situation considered by the American Bar Association's Committee, the underlying principles are the same. In that opinion it was said that "an attorney should not only avoid all impropriety but should likewise avoid the appearance of impropriety."