Did a county public defender who was running for county prosecuting attorney have to resign as public defender, and what did the lawyer have to disclose to clients?
Ohio BPC Opinion 88-002: County Public Defender Running for County Prosecuting Attorney
Short answer: The Board concluded that nothing in the Code of Professional Responsibility automatically required a public defender to resign because of a candidacy for county prosecutor, but under former DR 5-101(A) the lawyer could not accept or continue a representation if his professional judgment would be or reasonably might be affected by his personal interest in the election, absent the client's consent after full disclosure. The Board recommended disclosure of the candidacy to potential clients.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
This opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 1.7 on conflicts of interest) before relying on any specific rule mentioned here.
Plain-English summary
A county public defender appointed under Ohio Rev. Code 120.15 asked whether he could continue serving after announcing or filing for candidacy for county prosecuting attorney, and what he had to disclose to prospective clients. The request noted the county was effectively a one-party county, so the prosecutor's office would likely be decided in the primary.
The Board concluded that nothing in the Code of Professional Responsibility prohibited a public defender from continuing in that role after declaring or filing for prosecutor. It found the operative limit in former DR 5-101(A), which barred a lawyer, absent the client's consent after full disclosure, from accepting employment if the exercise of his professional judgment on the client's behalf would be or reasonably might be affected by his own financial, business, property, or personal interests. The Board reasoned that if the public defender's judgment on a client's case would be or reasonably might be affected by his candidacy, he should not represent that client; and if his judgment about his public-defender responsibilities was affected by his prosecutorial aspirations, he should not continue to serve, unless the client consented after full disclosure. As to the second question, the Board recommended that the public defender disclose the candidacy to potential clients, drawing on the ABA Standards' defense-function disclosure rule, and observed that disclosure would reduce later ineffective-assistance claims premised on a perceived conflict.
Common questions
Q: Did the public defender have to resign to run for prosecutor?
A: No. The Board concluded that nothing in the Code automatically required resignation, regardless of how likely the candidate was to win.
Q: When did the candidacy create a conflict?
A: Under former DR 5-101(A), when the lawyer's professional judgment on a client's behalf would be or reasonably might be affected by his personal interest in the election. In that situation he could not accept the representation unless the client consented after full disclosure.
Q: Did the Board direct disclosure to clients?
A: The Board recommended that a public defender disclose the candidacy to potential clients, citing the ABA Standards' defense-function disclosure rule and noting it would reduce later ineffective-assistance claims.
Background and rules framework
The opinion applies former DR 5-101(A) of the Ohio Code of Professional Responsibility, governing a personal-interest conflict and the cure of client consent after full disclosure. The current parallel is Ohio Prof. Cond. R. 1.7 and Model Rule 1.7. The opinion also draws on the ABA Standards relating to the defense function.
Citations and references
Rules of Professional Conduct:
- Former DR 5-101(A), Ohio Code of Professional Responsibility
Statutes:
- Ohio Rev. Code 120.15 (county public defender)
Other opinions cited:
- ABA Standards: The Prosecution Function and The Defense Function, Rule 3.5(a) and commentary (1971): defense counsel's duty to disclose interests relevant to the client's selection of a lawyer
See also
- Ohio BPC Opinion 1987-024: Judge Whose Spouse Is a Prosecutor
- Ohio BPC Opinion 1987-022: Part-Time Judge's Law Partners and Relatives
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-002.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-002
Issued: February 12, 1988
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: A county public defender running for county prosecuting attorney is not required, under the Code of Professional Responsibility, to resign or remove himself as county public defender. However, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own personal interests unless the client consents after full disclosure. We recommend that a public defender disclose, to potential clients, the fact that he or she is running for prosecutor.
OPINION: We have before us your request for an informal advisory opinion regarding a county public defender running for county prosecuting attorney. Your questions are as follows:
(1) May a county public defender appointed to that office pursuant to Section 120.15, O.R.C., continue to serve in that office subsequent to his formal public announcement and/or the declaration of his candidacy by filing the requisite petition that he is a candidate for the office of County Prosecuting Attorney?
(2) If the county public defender may continue to serve in that office contemporaneously with his candidacy for prosecuting attorney, what duties of disclosure are necessary to his prospective clients and what waivers or documentation should be obtained from them?
You also indicate in your request letter that your county is virtually a one political party county and therefore, the position of prosecutor will in all likelihood, be determined by the primary election.
There is nothing in the Code of Professional Responsibility which prohibits public defenders from continuing in that position after declaring their intention to run or filing their petition for candidacy for county prosecuting attorney. However, DR 5-101(A) of the Code does restrict the type of employment a lawyer can accept. This Code provision states:
Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests. Code of Professional Responsibility DR 5-101(A).
Thus, if the public defender's judgment on behalf of a client will be or reasonably may be affected by the fact that he is running for county prosecuting attorney then the public defender should not represent that client. In addition, if the public defender's judgment regarding his responsibilities as public defender is, or may be affected by his prosecutorial aspirations then, he should not continue to serve as a public defender. However, DR 5-101(A) allows the client to consent to the potential conflict after it has been has fully disclosed by the lawyer.
In regard to your second question, we recommend that t public defender disclose the fact that he is running for county prosecuting attorney to potential clients. In the ABA standards relating to the defense function Rule 3.5(a) regarding disclosure states, "at the earliest feasible opportunity defense counsel should disclose to the defendant any interest in or connection with the case or any other matter that might be relevant to the defendant's selection of a lawyer to represent him." ABA Standards: The Prosecution Function and The Defense Function 211 (1971). The commentary to this rule states that,
the obligation to disclose to a potential client any relationship to other parties or the subject matter of the case that might undermine or draw into question his ability to guard his client's confidences and zealously pursue his client's interest is a general one that extends to members of the legal profession in all the aspects of their activity. Id. at 211-212.
Based upon this standard and DR 5-101(A), it is our opinion that a public defender should disclosed to a prospective client the fact that he or she is running for county prosecuting attorney. Such an approach will hopefully reduce the number of ineffective assistance of counsel claims relating to failure to disclose what a client might later perceive to be a conflict.
In conclusion, it is our opinion and you are so advised that, a county public defender is not automatically required to resign from that position because he or she is running for county prosecuting attorney. This is true regardless of the likelihood that the public defender will be elected prosecuting attorney. However, if a public defender's professional judgment regarding a potential client's case is, or reasonably may be affected by the fact that he or she is running for prosecuting attorney then, the public defender may not accept such employment unless, the client consents after full disclosure.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.