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OBA Ethics Counsel

Ethics Opinion No. 78

Adopted September 21, 1934

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

"A and B have been associated together as partners and engaged in the general practice of law for several years last past. A has recently been appointed Conciliation Commissioner for his County under Section 75 of the Bankruptcy Act [11 U.S.C.A. § 203] and has accepted the appointment. A and B have continued the partnership and are still engaged in the practice of law together. Prior to the appointment of A as Conciliation Commissioner, the partnership of A and B represented numerous farmers defending foreclosure actions, which farmers are eligible to receive the benefits of Section 75 and undoubtedly will find it necessary to petition under same in the near future. Many of these debtors have determined that it will be necessary for them to file a petition and schedules under Section 75 and they desire to retain B as their attorney in preparing petition and schedules and appearances for them wherever necessary, either before the Court or the Conciliation Commissioner in the development of the case. Other debtors who were not represented by the partnership of A and B prior to the appointment of A as Conciliation Commissioner, who are now proposing to file debtor's petition under Section 75, have conferred with B relative to his representing them in such proceedings before the Court and Conciliation Commissioner. As I understand it the Conciliation Commissioner has little discretion except in the appointment of appraisers and everything that is done by him must be approved by the Court."

"Query:

1. Can B with propriety represent any debtor who may see fit to employ him in filing a petition and representing him under Section 75 of the Bankruptcy Act in any proceedings before either of the U. S. District Court or the Conciliation Commissioner?

2. Can B with propriety represent clients of the partnership of A and B for whom they were handling foreclosure actions prior to the appointment of A as Conciliation Commissioner, in proceedings under Section 75 of the Bankruptcy Act before both the U. S. Court and the Conciliation Commissioner?"

In response:

It is the opinion of the Board of Governors that as long as "A" and "B" continue in the general practice of law as a partnership and "A" occupies the position of Conciliation Commissioner, "B" cannot, with propriety represent debtors under Section 75 of the Bankruptcy Act.

The Conciliation Commissioner is an officer of the court upon whom devolves important functions involving, at least, discretionary powers. For "B" to represent debtors under the circumstances detailed would justly bring reproach upon both "A" and "B" and reflect upon the dignity and honor of the profession and the administration of justice.