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OBA Ethics Counsel

Ethics Opinion No. 90

Adopted July 26, 1935

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

"On last December 26th my firm filed suit for certain of the heirs of ............, deceased, against ............ and his bondsmen, to recover from ............ as executor of the ............ estate certain moneys which the said executor had reported in his final account but failed to pay over to the heirs. Judgment was rendered against the defendants on February 5th, 1935, and since then only a small payment has been made on the judgment. On March 11th, 1935, one of our clients filed a complaint against ............ charging him with the crime of embezzlement. He has been arrested and no further proceedings have been had on the criminal case. The County Attorney held a court of inquiry and by order of court came into possession of certain canceled checks written by .......... on the failed Security National Bank of ............ which checks were held by the liquidating agent of the bank, though paid before the bank failed. These checks were paid out of the .............. estate account to ............ and drawn by him and payable to him and constitute in large part the evidence of his guilt. On the 19th inst. the County Attorney resigned and I was appointed to the office of County Attorney. Being interested in the collection of the balance of the judgment I write to inquire if there is, in your opinion, any reason why I should not proceed with the prosecution of the criminal case against ............."

In response:

The Board is of the opinion that the inquirer may not, with propriety, proceed in the prosecution.

This conclusion is based upon the necessity for the maintenance of public confidence in the integrity of the profession and upon the proposition that if the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must not only avoid all evil but must likewise avoid the appearance of evil.

Rule 7 of the Rules of Professional Conduct states it to be the primary duty of an attorney engaged in a public prosecution not to convict but to see that justice is done. Rule 30 defines it to be the duty of a member of the bar at all times to strive to uphold the honor and to maintain the dignity of the profession.

The situation presented would be too susceptible of misconstruction because the member of the bar making the inquiry is personally interested, at least indirectly, in the result of the prosecution.

In this connection see 18 C.J. page 1313, Section 39, where it is said:

"If the prosecuting attorney has a personal interest in obtaining an acquittal or conviction, it may disqualify him. If he himself is involved in the offense under investigation he will not be allowed to conduct the prosecution. He should not act in a case if he has before appeared in a civil suit against the same party, based substantially upon the same facts, even if defendant gives his unqualified consent." See also 27 C.J.S. District & Pros. Attys. § 12(6).

This conclusion is supported by Advisory Opinion Nos. 32 and 24, both of which appear in the April, 1933, Oklahoma State Bar Journal.