OBA Ethics Counsel
Ethics Opinion No. 65
Adopted December 27, 1933
The Board of Governors is in receipt of the following request for an advisory opinion:
"'A', an attorney, is a local attorney for a Federal Land Bank and as attorney examines abstracts of title on which loans are contemplated. Question: Is it proper for 'A', after requiring title to be quieted, to represent the applicant in court to quiet the title, assuming the attitude of representing both applicant and Federal Land Bank?"
In the opinion of the Board 'A', under the circumstances, would be representing conflicting interests were he to quiet the title for the applicant, and then proceed to pass upon the title for the Federal Land Bank. However, Rule Eight of the Rules of Professional Conduct provides:
"It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts."
The inhibition against an attorney representing conflicting interests grows out of the principle of agency. "No man can serve two masters." The ground upon which this rule is based rests upon the fraudulent advantage which such an interest may stimulate the agent to take to the prejudice of his principle's rights. However, Rule Eight, supra, was enacted to relax the general principle of law in order that an attorney might properly represent conflicting interests when he brings himself clearly within the strict interpretation of the rule which requires the free and intelligent consent of all parties concerned, given after full knowledge of all the facts and circumstances. In the ordinary transactions where the attorney brings himself within the strict letter of the rule there is no just ground for criticism. However, the present inquiry presents a slightly different situation than the ordinary. Here we are confronted with a situation involving a member of the Bar, a citizen and a governmental agency which of necessity acts only by and through a delegation of powers. Upon the acceptance of an attorneyship to examine titles for this governmental agency the attorney becomes a part of the agency for the purpose of performing those special duties. In this representative capacity the member of the Bar in dealing with the citizen places himself in a very delicate situation and one fraught with many dangers. It places the member of the Bar in a position where he can make needless title requirements, indirectly solicit business, direct legal business into favored or chosen channels and commit other malfeasances to his pecuniary benefit. To occupy this dual relationship will in some, and in many instances create a condition which will tend to bring reproach upon the legal profession. Such delicate situations should always be avoided where possible. A member of the Bar should not only avoid all impropriety but should likewise avoid the appearance of impropriety. The Bar as a whole would, undoubtedly, frown upon the situation presented should 'A' accept employment from the applicant.
The Board is of the opinion that while technically such employment of 'A' by the applicant is permissible under Rule Eight supra, provided the strict letter of the Rule is followed, yet the relationship creates such a delicate situation surrounded by so many pitfalls and so likely to bring reproach upon 'A' and the legal profession, that such employment should be accepted only in those exceptional cases where the applicant is absolutely unwilling to secure the services of other counsel after being advised so to do by 'A'.