Could a former judge hold himself out as 'associate counsel' to his old partners while still taking cases against their clients, or against them, when he was not called into the matter?

Plain-English summary

After leaving the bench, a lawyer did not re-form a partnership with his former partners but kept an adjoining office and arranged that his name would appear as "associate counsel" to them, with the understanding that he might be called into their counsel at any time. He recognized that in any case in which he was called into conference he would be disqualified from taking employment adverse to that party, but he did not intend the relation to bar the former partners from opposing him in cases where he was on the other side, or to bar him from taking employment in their cases when he was not called in. He asked whether, under those conditions, it would be unethical to take a case in which the former partners were interested as counsel, or to be employed against their clients.

The Board answered by quoting Rule 31, which enjoins a member of the bar to uphold the honor and maintain the dignity of the profession, and the correlative duty to avoid the appearance of evil and refrain from creating a situation, regardless of express prohibition, that might bring reproach upon the profession. It concluded that the outlined course of conduct would obviously tend to bring reproach upon the profession.

Currency note

This opinion was issued in 1935, 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 The rule cited here, Rule 31, belongs to that superseded canon-era code. 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 Treat this page as historical context, not current guidance.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: Could a lawyer hold out as "associate counsel" to former partners but still oppose their clients?

A: The opinion concluded the described arrangement was improper, finding it would obviously tend to bring reproach upon the profession under Rule 31.

Q: Why was the appearance of the relationship the problem?

A: Rule 31's duty includes avoiding the appearance of evil. The Board treated the public-facing "associate counsel" posture, combined with taking adverse positions, as creating a situation that brought reproach upon the profession.

Background and rules framework

The opinion applied Rule 31 of the canon-era Oklahoma Rules of Professional Conduct, the duty to uphold the honor and dignity of the profession and to avoid the appearance of evil, drawn from the ABA Canons of Professional Ethics. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 31 (1929 Oklahoma Rules of Professional Conduct): the duty to uphold the honor and maintain the dignity of the profession and to avoid the appearance of evil.

See also

• Okla. Bar Ethics Op. 77: Firm name after a partner takes public office
• Okla. Bar Ethics Op. 82: A former judge as advocate on the merits

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-88/

Original opinion text

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

Adopted May 24, 1935

The Board is in receipt of the following inquiry:

"When I left the bench and re-entered the law practice, I did not form a partnership with my former partners, but have an office adjoining and it was arranged that my name should appear as associate counsel to my former partners. However, with the understanding that I may be called into their counsel at anytime. I fully appreciate that in any case in which I was called in conference, I would be disqualified from taking employment from any party with an adverse interest. It was not intended that this relation should bar them from taking opposite sides of cases in which I was interested in the other side, nor bar me from taking employment in cases which were handled by them and in which I was not called in on as counsel. I have, of course, regular clients and they also have regular clients. Would it be unethical under the relations suggested above for me to take a case in which they are interested as counsel under the condition stated above, or would it be unethical for me to be employed in a case against their clients under the conditions stated above?"

Rule 31 of the Rules of Professional Conduct enjoins upon a member of the bar the duty "at all times to uphold the honor and to maintain the dignity of the profession." This involves the correlative duty, not only of refraining from evil, but also of avoiding the appearance of evil–the duty to refrain from creating a situation. regardless of express prohibition, which might bring reproach upon the profession. That the course of conduct outlined would tend to bring reproach upon the profession is obvious.