After leaving office, may a former county attorney represent a divorcing wife against a husband he once prosecuted in a bastardy proceeding involving the same couple?

Plain-English summary

While county attorney, the inquirer had prosecuted a bastardy proceeding that was settled when the complainant and the defendant married. After his term ended, the wife (the former bastardy complainant) wanted to retain him to bring a divorce suit against the husband (the former bastardy defendant). The Board was asked whether accepting that employment would violate Rule 38 or any other rule.

The Board found the answer not obvious on the limited facts. It drew a line based on the relationship between the two matters: if the divorce proceedings involved matters wholly dissociated from the bastardy proceedings, the principles of Advisory Opinion 127 applied and he could accept; but if the divorce facts were associated with facts he had investigated in the bastardy case, the interdiction of Rule 38 applied and he could not accept the employment.

Currency note

This opinion was issued in 1937, 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 successive-government-and-private-employment restriction once stated in Rule 38 now lives, in modified form, in the rule on former government lawyers (Model Rule 1.11 and its Oklahoma counterpart). Subsequent rule amendments and later opinions 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 Treat this page as historical context, not current guidance.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: Was the answer a flat yes or no?

A: Neither. The Board said it was not obvious on the facts and made the answer turn on whether the divorce matters were dissociated from, or associated with, the bastardy facts he had investigated in office.

Q: When could he accept the divorce employment?

A: When the divorce involved matters wholly dissociated from the bastardy proceedings. In that case the Board said the principles of Advisory Opinion 127 applied.

Q: When was he barred?

A: When the divorce facts were associated with facts he had investigated in the bastardy case, in which event Rule 38 interdicted the employment.

Background and rules framework

The opinion applied Rule 38 of the canon-era Oklahoma Rules of Professional Conduct, barring a former public officer from accepting employment in connection with a matter he investigated or passed upon while in office, and relied on Oklahoma Advisory Opinion 127. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 38 (1929 Oklahoma Rules of Professional Conduct): a former public officer may not accept employment in connection with a matter he investigated or passed upon while in office.

Other opinions cited:

• Oklahoma Advisory Opinion 127 (Nov. 1936 Bar Journal, p. 161).

See also

• Okla. Bar Ethics Op. 137: Former county attorney in a collision damage suit
• Okla. Bar Ethics Op. 127: Former county attorney suing on a defense-fee note
• Okla. Bar Ethics Op. 84: Ex-county attorney defending a case he prosecuted

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-138/

Original opinion text

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

Adopted September 17, 1937

The Board is in receipt of the following inquiry:

"Where an attorney at law, while serving as the county attorney of his county, prosecuted a bastardy proceeding which was settled and determined by the marriage of the complainant and defendant, may the attorney, after the expiration of his term of office, accept employment as attorney for the plaintiff in a suit for divorce brought by the wife, who was the complainant in the bastardy proceeding, against the husband, who was the defendant therein; or would the acceptance of employment under such circumstances constitute a violation of Rule 38 of the Rules of Professional Conduct of the State Bar, or of any other rule governing the professional conduct of attorneys?"

In response:

From the limited facts in the inquiry as to the matters involved in the divorce suit, the answer to this question is not obvious. If the divorce proceedings involve matters wholly dissociated from the bastardy proceedings, the principles laid down in advisory opinion 127, (page 161, Nov. 1936 Bar Journal) apply. If, however, the facts involved in the divorce case are associated with facts investigated in the bastardy case the interdiction of rule 38 does apply and it would follow that the inquirer may not accept the employment.