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OBA Ethics Counsel

Ethics Opinion No. 54

May 26, 1933

1.  Attorneys - Unprofessional Employment

Where a firm under retainer from one person represented the latter in reference to a claim against another person, held that it would constitute unprofessional conduct for a member of the firm, after its dissolution, to represent the adverse party either in resisting the claim, or in bankruptcy proceedings.

Opinion

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

"During the year 1932, M. had the firm of XYZ retained as his attorneys, paying a certain amount as a retainer with the understanding that if he had any suits or any suits were filed against him he would make arrangements for an additional fee in the case that firm of XYZ represented him.  It was understood against M.

About Nov. 20, 1932, M. and C. who was a that time a county officer of Seminole County, Oklahoma, and who had been elected to succeed himself in the same office, but of course could not qualify for his new term until the first Monday in January, 1933, came to the office of XYZ and stated that C owed M about $500.00 and that M. was advancing $150.00 more to C. on that date and asked Y. a member of the firm to draw an assignment of C's salary for the year 1933 as security for such indebtedness.  One of the parties at that time asked the question of Y whether such an assignment would be valid and Y replied that there was no statute in Oklahoma that prohibited such a thing.  The assignment was drawn, signed and delivered at that time.

Now M has brought suit for the $650.00 due him and has had a temporary restraining order issued prohibiting the County Commissioners from delivering C's warrant to him for his April salary.  The firm of XYZ was dissolved February 1, 1933, and since that time Y has not been associated with said firm except in cases that were pending when the partnership was dissolved.

C desires to retain Y to represent him in the matter of getting possession of his warrant for his April salary.  Since the dissolution of the partnership of XYZ, M who brought suit has retained X and Z, the other members of the firm, as his attorneys and they represent him in the case at bar.

The two questions Y desires to ask are:

"(1)  Would it be proper for Y to represent C in the suit already filed against him as a defendant?

(2)  Would it be proper for Y to represent C in a contemplated bankruptcy proceeding by C."

In response of Inquiry (1):

In the opinion of the Board it would not be proper for Y to represent C.  See Rule 8 of the Rules of Professional Conduct, which provides:

"The obligation to represent the client with undivided fidelity and not divulge his secrets or confidence 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 be reposed."

In response to Inquiry (2):

It is the opinion of the Board that Y should not retain C in the contemplated bankruptcy case.  It appears that the validity of the assignment from C to M may be involved  in the bankruptcy proceeding or the right to have the accrued salary exempted as assets of the bankruptcy estate may be urged in that proceeding.  See Rule 8 of the Rules of Professional Conduct, that the retainer was to keep said firm from taking cases which provides that it is  unprofessional to represent conflicting interests, i.e. when, in behalf of one client, it becomes the duty of the attorney to contend for that which duty to another client requires him to oppose.

Generally speaking, a member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach upon the profession.  That the acceptance of employment from C by Y, under the situation presented, might so tend is obvious.  A member of the bar should not only avoid all impropriety, but should likewise avoid the appearance of impropriety.  See A. B. A. Opinion No. 77.

Note to Opinion 54.  Cited with approval in Opinions 56, 57.