Can a lawyer serve as a Selective Service Government Appeals Agent when the role requires protecting both the registrant and the Government?

Plain-English summary

The committee addressed whether an attorney could serve as a Government Appeals Agent within the Selective Service System without violating the Code of Professional Responsibility. The role is created by Selective Service Regulation Section 1604.71; an agent need not be a lawyer but legal training is preferred, and the agent must be "equally diligent in protecting the interests of the Government and the rights of the registrant in all matters." The committee found those duties incompatible with an attorney-client relationship between the agent and either the registrant or the board.

Because Canon 4 forbids a lawyer from using information acquired in representing a client to that client's disadvantage, the committee reasoned that an attorney serving as an Appeals Agent could not ordinarily satisfy that duty toward the registrant while also performing the agent's duty to the Government. The solution was disclosure at the outset: the registrant and the Government must clearly understand there is no confidential relationship and that, consistent with the regulations, information obtained may be provided to the local board when the agent recommends reconsideration.

The committee added that Canon 9 required the agent to forcefully inform any registrant who seeks his counsel that matters disclosed may be reported to the local board, and that the agent cannot represent the registrant as a lawyer because it is as much the agent's duty to protect the Government's rights as the registrant's. With those precautions, an attorney may properly serve. The committee noted, citing Ethical Consideration 8-8, that lawyers are often called to serve as public officers and are uniquely qualified to contribute to the legal system and related areas.

Currency note

This opinion was issued in 1970, under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions, and the Selective Service regulations it construes have themselves changed since the conscription era. Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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: Why is there no attorney-client relationship between a registrant and the Appeals Agent?

A: The committee reasoned the agent is required by Selective Service Regulation Section 1604.71(d)(5) to be equally diligent in protecting the Government and the registrant, which is incompatible with the loyalty and confidentiality an attorney owes a client.

Q: What disclosure did the committee require?

A: The registrant and the Government had to be told at the outset that there is no confidential relationship and that information obtained may be provided to the local board, and under Canon 9 the agent had to forcefully tell any registrant seeking his help that disclosures may be reported.

Q: Could the agent give the registrant legal advice as his lawyer?

A: No. The committee said the agent must tell the registrant he cannot represent the registrant as a lawyer, because protecting the Government's rights is as much the agent's duty as protecting the registrant's.

Background and rules framework

The opinion applied Canon 4 of the Code of Professional Responsibility (preservation of client confidences and secrets, including the rule against using client information to the client's disadvantage) and Canon 9 (avoiding even the appearance of impropriety), with reference to Ethical Consideration 8-8 under Canon 8 on lawyers serving in public roles. It construed those canons against the duties imposed on a Government Appeals Agent by Selective Service Regulation Section 1604.71. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 4 (Code of Professional Responsibility): a lawyer should preserve the confidences and secrets of a client and not use client information to the client's disadvantage.
• Canon 9 (Code of Professional Responsibility): a lawyer should avoid even the appearance of professional impropriety.
• Canon 8, Ethical Consideration 8-8 (Code of Professional Responsibility): lawyers are encouraged to serve as public officers.

Statutes:

• Selective Service Regulations Section 1604.71 (Government Appeals Agent), including subsections (c) and (d)(5).

See also

• Okla. Bar Ethics Op. 215: Acting county attorney maintaining private practice
• Okla. Bar Ethics Op. 228: Guard and reserve lawyers providing civilian legal services on duty
• Okla. Bar Ethics Op. 245: Pardon and Parole Board member representing criminal defendants

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-259/

Original opinion text

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

Adopted May 23, 1970

INQUIRY

Can an attorney perform the duties of a Government Appeals Agent within the Selective Service System without violating the Code of Professional Responsibility?

OPINION

The office of the Government Appeals Agent is established by Section 1604.71 of the Selective Service Regulations. A Government Appeals Agent is not required to be an attorney, but "a person with legal training and experience" is preferred. Sel. Sve. Reg., § 1604.71(c).

The Government Appeals Agent is required "to be equally diligent in protecting the interests of the Government and the rights of the registrant in all matters." Sel. Sve. Reg., § 1604.71(d)(5). His duties are thus incompatible with the existence of an attorney-client relationship between himself and either the registrant or the Selective Service Board.

Ethical Consideration 4_5. Canon 4 of the Code of Professional Responsibility requires the lawyer to not use information acquired in the course of the representation of a client to the disadvantage of that client.

It is obvious that the attorney serving as a Government Appeals Agent cannot ordinarily discharge the requirements of an attorney under Canon 4 insofar as the registrant is concerned if the duties imposed upon the Appeals Agent by § 1604.71(d)(5) of the Selective Service Regulations with respect to the Government are also performed. Thus, the registrant and the Government must be made to clearly understand at the outset of any case referred to the Appeals Agent that there is no confidential relationship between the Appeals Agent and the registrant and that consistent with the Selective Service Regulations, any information obtained by the Government Appeals Agent may be provided to the local board when the Appeals Agent recommends that the case be reconsidered by the local board.

In addition, Canon 9 of the Code of Professional Responsibility would require an attorney acting as a Government Appeals Agent to forcefully inform any registrant who seeks his counsel or assistance that any matters disclosed by the registrant may be reported to the local board. The registrant should also be told that the Appeals Agent cannot represent the registrant as a lawyer since it is as much the Agent's duty to protect the Government's rights as it is to protect the rights of the registrant.

If the above precautions are taken, an attorney may properly serve as a Government Appeals Agent. Lawyers are often called upon to serve as public officers, and it is highly desirable that whenever possible they accept these opportunities. Because of their training, experience, and background, lawyers are uniquely qualified to make significant contributions not only to the legal system, but to other related areas as well. See Ethical Consideration 8_8, Canon 8 of the Code of Professional Responsibility.