May a lawyer employed by the State Banking Department as a liquidating agent take a client's case suing the State on relation of the bank commissioner over a different insolvent bank?

Plain-English summary

A lawyer employed by the State Banking Department as a liquidating agent asked whether he could accept a client's employment in a suit against the State, on relation of the bank commissioner, arising out of a separate insolvent bank.

The Board concluded he could, subject to a limitation. It quoted Rule 8, which provided that the obligation to represent a client with undivided fidelity and not to divulge confidences also forbade later accepting employment from others in matters adversely affecting an interest of the client as to which confidence had been reposed. Answering in the affirmative, the Board assumed the lawyer had not received information about the facts of the proposed litigation as a consequence of his employment as liquidating agent. It cautioned that if he had obtained such information through that employment, even if the knowledge could have been acquired otherwise, accepting the proposed employment would be improper. The Board referenced its earlier Advisory Opinion No. 91.

Currency note

This opinion was issued in 1936, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rule cited here, Rule 8, belongs to that superseded canon-era code and does not map onto the current Oklahoma rules governing confidentiality, former clients, and former government lawyers. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a government lawyer take private work adverse to the State?

A: The opinion concluded he could here, on the assumption that he had not received information about the facts of the proposed suit through his department employment. The matter concerned a different insolvent bank.

Q: What would have made the representation improper?

A: The opinion stated that if the lawyer had obtained information about the suit as a consequence of his department employment, even if that knowledge could have been acquired otherwise, accepting the employment would be improper under Rule 8.

Background and rules framework

The opinion applied Rule 8 of the then-current Oklahoma Rules of Professional Conduct, drawn from the ABA Canons of Professional Ethics, which tied the duty of undivided fidelity and confidentiality to a bar on later accepting employment in matters adversely affecting a client's interest as to which confidence had been reposed. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 8 (1929 Oklahoma Rules of Professional Conduct): the duty of undivided fidelity and against divulging confidences forbids later accepting employment in matters adversely affecting an interest of the client as to which confidence has been reposed.

Other opinions cited:

• Oklahoma Advisory Opinion No. 91 (October 1935)

See also

• Okla. Bar Ethics Op. 42: Consent does not cure the former-government-lawyer bar
• Okla. Bar Ethics Op. 40: Former city attorney representing a plaintiff against codefendant doctors
• Okla. Bar Ethics Op. 27: Former judge or official representing a prior matter

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-102/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted January 24, 1936

The Board is in receipt of the following inquiry:

"May an attorney, who is employed by the State Banking Department in the capacity of liquidating agent, accept employment from a client which will involve a suit against the State of Oklahoma on relation of the bank commissioner growing out of another and different insolvent bank?"

In response:

The Board is of the opinion that the attorney referred to, within the limitations hereinafter set forth, may accept employment. See Advisory Opinion No. 91, October 1935, State Bar Journal.

Rule Eight of the Rules of Professional Conduct of the State Bar provides:

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

Therefore, in answering the inquiry in the affirmative, it is assumed that the attorney has not received information with reference to any of the facts involved in the proposed litigation as a consequence of his employment as liquidating agent.

It must be borne in mind, however, that if the attorney has obtained such information as a consequence of his employment, even though such knowledge could have been acquired had not the attorney been in the employ of the department, the acceptance of the proposed employment would be improper.