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OBA Ethics Counsel

Ethics Opinion No. 8

Adopted September 25, 1936

The Board of Governors of The State Bar of Oklahoma is in receipt of the following inquiry:

"A Justice of the Peace will tell an attorney if such attorney feels that a client has a just case but does not have the money to deposit for costs, such case may be filed in such justice court and the costs will be collected out of the judgment that may be obtained. If no judgment is obtained the Justice will not hold the attorney or his client for the costs. Is it ethical for the attorney to accept such offer?"

It is the opinion of the Board of Governors that it is not ethical for a member of the bar to accept the offer. The member of the bar would be guilty of knowingly bringing about a condition whereby the Justice of the Peace would be disqualified by reason of his pecuniary interest in the decision to be rendered and thereupon trying the case before the disqualified Justice presumably without the knowledge of the opposing side.

Paraphrasing the language of Chief Justice Taft in Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749:

There may be Justices of the Peace who would not allow such a small consideration to influence their decisions but the requirement of judicial process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self sacrifice could carry it on without danger of injustice; every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to render a verdict against the defendant or which might lead him not to hold the balance nice, clear and true between the plaintiff and the defendant denies the latter due process of law.

The lawyer in accepting the offer referred to and bringing about the condition resultant therefrom would violate Rule 31 of the Rules of Professional Conduct which requires him to strive at all times to uphold the honor and to maintain the dignity of the profession and to improve the administration of justice.

Such procedure on the part of the attorney would be a cause for disbarment, suspension, etc., under Cause 8, to-wit, that he has been guilty of a wilful violation of a duty of an attorney or counselor.