Can a city attorney defend city council members and officers when taxpayers sue them over a settlement the council approved?

Plain-English summary

A city attorney for a charter city of the first class asked whether he could defend city officials in a particular suit. The council had approved, by majority vote, the settlement of a disputed claim in the city's favor for less than the full amount. Certain taxpayers then demanded that the council sue to recover the full amount, and proposed that, if the council refused, the taxpayers would bring the suit themselves and name the officers and council members who voted for the settlement as defendants.

The Board of Governors responded briefly that the city attorney in question could, with propriety, represent the officers of the city and the members of the council in the proposed suit. The opinion gave no further analysis and cited no specific numbered rule.

Currency note

This opinion was issued in 1933, 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 conflict-of-interest and government-lawyer questions it touches are governed today by separate provisions of the current Oklahoma Rules of Professional Conduct. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific principle mentioned here.

Common questions

Q: Could a city attorney defend council members sued over a settlement the council had approved?

A: Yes. The Board concluded the city attorney could, with propriety, represent the officers and members of the council in defending the proposed taxpayer suit.

Q: Did the Board point to a specific rule in reaching this result?

A: No. The opinion stated its conclusion without citing a numbered rule of professional conduct or explaining the reasoning behind it.

Background and rules framework

The question arose under the canon-era Oklahoma Rules of Professional Conduct in force in 1933, which were patterned on the ABA Canons of Professional Ethics. The opinion did not cite a specific rule; it addressed whether a public lawyer (the city attorney) could defend the city's own officers and council members in litigation challenging an official act of the council.

Citations and references

Rules of Professional Conduct:

• The opinion does not cite a specific numbered rule of professional conduct.

See also

• 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
• Okla. Bar Ethics Op. 32: City Attorney Firm as Special Prosecutor With Civil Claims

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-46/

Original opinion text

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

Adopted January 27, 1933

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

"I desire to have an opinion as to the propriety of the appearance of one occupying the office of City Attorney based upon the following statement of facts:

The Council of a charter city of the first class adopted by a majority vote, a resolution approving the settlement of a controverted claim in favor of the City and against certain individuals. Thereafter, demand is made by certain taxpayers upon the Council and other officers of the City that suit be brought to recover the total amount which would have been due the City, which is in excess of the amount received in the compromise settlement. Should suit be brought by the petitioning of taxpayers, upon the refusal of the Council to file suit, and officers of the City and members of the Council voting in favor of the Resolution are made parties defendant, would the City Attorney of the municipality be authorized to represent the officers and members of the Council so sued in defense of the action by the taxpayers, and would there be any violation of the ethics of the profession in so doing?"

In response:

The Board is of the opinion that the City Attorney in question may, with propriety, represent the officers of the City and members of the Council in the proposed suit.