Can a lawyer accept a criminal defendant who, on his own initiative, wants to replace his prior appointed counsel, and must the new lawyer first contact the old one?

Plain-English summary

A justice of the peace appointed lawyer A to represent a defendant at a preliminary hearing, and A waived the hearing. The defendant later asked to be interviewed by lawyer B, told B he did not want A to represent him, and insisted that B act as his attorney. B found that the defendant had already been arraigned in District Court with no attorney of record, secured an order appointing himself in District Court, and learned that the justice of the peace's appointment was invalid. The inquirer asked whether B had to contact A first, whether B breached any rule, whether B acted properly, and whether it was proper for a client to recommend his attorney to a jailed person or to tell his attorney that an accused wanted to talk to him.

The Board cited Rule 9, that efforts direct or indirect to encroach upon another lawyer's business are unworthy of brothers at the bar. On the facts, the defendant solicited B's representation and B was not the instigator of the change, so it did not appear B breached any rule; the defendant was entitled to counsel of his own choosing. The Board said it is not improper for a client to recommend his attorney to a jailed person not represented by counsel, or to tell his attorney that an accused wishes to talk to him, provided neither is done at the attorney's solicitation. If done at the attorney's solicitation, Rule 29 would be violated, because that rule forbids securing business by indirection through touters of any kind.

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 limits on solicitation the opinion applied were later constrained by constitutional decisions on lawyer advertising and solicitation, and a client's right to choose counsel is treated separately today. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific principle mentioned here.

Common questions

Q: Did the new lawyer have to contact prior counsel before taking the case?

A: The Board did not require it on these facts. Because the defendant himself sought the change and the lawyer was not the instigator, it did not appear the new lawyer breached any rule.

Q: Could a client recommend his lawyer to a jailed person who had no counsel?

A: Yes, provided it was not done at the attorney's solicitation. If the attorney solicited it, Rule 29's bar on securing business through touters would be violated.

Q: What rule governs a lawyer taking over another lawyer's client?

A: Rule 9, which calls direct or indirect efforts to encroach on another lawyer's business unworthy of the bar; but a defendant remains entitled to choose his own counsel.

Background and rules framework

The opinion applied Rule 9 (not encroaching on another lawyer's business) and Rule 29 (no securing business by indirection through touters) of the then-current Oklahoma Rules of Professional Conduct, patterned on the ABA Canons of Professional Ethics. The Board treated a client-initiated change of counsel as permissible and located the ethical line at whether the new lawyer solicited the change.

Citations and references

Rules of Professional Conduct:

• Rule 9 (1929 Oklahoma Rules of Professional Conduct): efforts to encroach on another lawyer's business are unworthy of the bar.
• Rule 29 (1929): no securing of business by indirection through touters of any kind.

See also

• Okla. Bar Ethics Op. 38: Settling Directly With a Represented Opposing Party
• Okla. Bar Ethics Op. 60: Stating a Specialty on the Office Door and Professional Card
• Okla. Bar Ethics Op. 50: Lawyer's Business Card in a Telephone Directory and Newspaper

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-61/

Original opinion text

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

Adopted October 27, 1933

The Board is in receipt of the following inquiry:

"'A', a member of the State Bar, is appointed by a Justice of the Peace to defend and represent, at a preliminary hearing, a defendant charged with a public offense. Said attorney waives preliminary hearing, and subsequently thereafter defendant requests an interview with 'B', also a member of the State Bar. At the time 'B' interviews defendant he is informed that defendant doesn't care to have 'A' represent him, and insists that 'B' act as his attorney. 'B' learns that defendant has already been arraigned in the District Court and that the court records do not show either an appointment by the court or an attorney of record. 'B' then secures an order appointing him to represent the defendant in the District Court. At this time I may state that 'B' learns from the District Court that an appointment by the Justice of the Peace is invalid. Question: Is it necessary for 'B' to communicate with 'A' before perfecting appointment in the District Court? Has 'B' breached, or violated any rule of legal ethics? Has 'B' acted properly in securing the employment? Will you also inform the writer whether it is proper for a client to recommend his attorney to another person incarcerated in jail and not represented by counsel? Is it proper for a client to inform his attorney that an accused person desires to talk to him?"

In response:

Rule 9 of the Rules of Professional Conduct lays down the rule that "efforts, direct or indirect, in any way to encroach upon the business of another lawyer, are unworthy of those who shall be brothers at the bar." From the statement of facts it appears that the defendant solicited the representation of him by 'B' and that 'B' was not the instigator in the change of attorneys. It does not appear that 'B' has breached any of the Rules of Professional Conduct. It would appear that the defendant is entitled to be represented by an attorney of his own choosing. It is not improper for a client to recommend his attorney to any person incarcerated in jail and not represented by counsel; nor for a client to inform his attorneys that an accused desires to talk to him; provided always that neither is done at the solicitation of the attorney. If it is done at the solicitation of the attorney, Rule 29 of the Rules of Professional Conduct would be violated. This rule interdicts "the securing of business by indirection through touters of any kind."