Could a prosecutor appear before a part-time municipal court judge who employed one of the prosecutor's assistants as an associate in the judge's private law firm?
Ohio BPC Opinion 88-013: Prosecutor Appearing Before a Part-Time Judge Who Employs the Prosecutor's Assistant
Short answer: The Board concluded that nothing in the Code specifically barred a prosecutor from appearing before a part-time municipal court judge who employed one of the prosecutor's assistants in the judge's private firm, but that the prosecutor should not appear if his professional judgment would be or reasonably might be affected, that consent could not cure the conflict because the public client cannot consent, and that the prosecutor should weigh the appearance of impropriety, with the assistant's conflict potentially imputed to the prosecutor.
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
The Board's status list flags this opinion as Withdrawn by Opinion 2022-01 on February 4, 2022. It was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance.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 and 1.10) before relying on any specific rule mentioned here.
Plain-English summary
A prosecutor asked whether a conflict of interest or appearance of impropriety arose from handling felony bind-overs before a part-time municipal court judge who employed one of the prosecutor's assistants as an associate in the judge's law firm; the assistant would not appear in the judge's courtroom. The Board treated the question under former DR 5-101(A), which precluded a lawyer from accepting employment if the exercise of his professional judgment would be or reasonably might be affected, unless the client consented after full disclosure.
The Board reasoned that if the prosecutor's judgment in proceedings before the judge would be or reasonably might be affected by the assistant's law-firm relationship with the judge, the prosecutor should consider not appearing. It noted that DR 5-101(A)'s consent cure was unavailable because a prosecutor's "client" is the public, which cannot consent, citing ABA Informal Opinion 1235. The Board applied former Canon 9 and EC 9-1 and 9-2 (avoid even the appearance of impropriety and promote public confidence), suggesting the maxim "when in doubt, don't," from Washington State Bar Association Opinion 161. On imputation, the Board reasoned that an assistant prosecutor is an extension of the prosecutor subject to the same limitations, citing an Ohio Attorney General opinion, and compared its own Opinion 87-022 (a father-son judge and law-director partnership whose conflict could not be cured by hiring an assistant). The Board concluded that the prosecutor was in the best position to weigh the circumstances, including whether disqualification of the judge or the prosecutor would create a substantial hardship outweighing any appearance of impropriety, and that if the working relationship was closely intertwined the prosecutor might wish to disqualify himself from appearing before the judge.
Common questions
Q: Was the prosecutor flatly barred from appearing before that judge?
A: No. The Board found nothing in the Code that specifically barred it, but advised the prosecutor not to appear if his professional judgment would be or reasonably might be affected, and to weigh the appearance of impropriety.
Q: Could the prosecutor cure the conflict with consent?
A: No. The Board explained that a prosecutor's client is the public, which cannot consent, so DR 5-101(A)'s consent cure was unavailable.
Q: Was the assistant's conflict imputed to the prosecutor?
A: The Board reasoned that an assistant prosecutor is an extension of the prosecutor subject to the same limitations, so depending on how intertwined the working relationship was, the prosecutor might wish to disqualify himself.
Background and rules framework
The opinion applies former DR 5-101(A) (personal-interest conflict and the public's inability to consent) and former Canon 9 with EC 9-1 and 9-2 (avoiding the appearance of impropriety) of the Ohio Code of Professional Responsibility, plus the principle that an assistant prosecutor stands in the prosecutor's place. The current parallels on conflicts and imputation are Ohio Prof. Cond. R. 1.7 and 1.10, and Model Rules 1.7 and 1.10.
Citations and references
Rules of Professional Conduct:
- Former DR 5-101(A), Ohio Code of Professional Responsibility
- Former Canon 9 and EC 9-1, EC 9-2, Ohio Code of Professional Responsibility
Other opinions cited:
- ABA Committee on Ethics and Professional Responsibility Informal Op. 1235 (1972): the public cannot consent
- Washington State Bar Assn. Op. 161 (1975): "when in doubt, don't"
- Ohio Att'y Gen. Op. 71-050 (1971): assistant prosecutor subject to the same limitations
- Ohio BPC Opinion 87-022: father-son judge and law-director partnership conflict
See also
- Ohio BPC Opinion 1987-022: Part-Time Judge's Law Partners and Relatives
- Ohio BPC Opinion 1988-008: Part-Time Prosecutors Representing Criminal Defendants
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-013.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 88-013
Issued June 17, 1988
Withdrawn by Adv. Op. 2022-01
[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: Nothing in the Code of Professional Responsibility specifically prohibits a prosecuting attorney from appearing before a part-time municipal court judge who employs the prosecutor's assistant in his or her private practice. However, if the prosecutor's professional judgment will be or reasonably may be affected by the assistant's conflict of interest then he or she should not appear before the judge. The prosecutor should also avoid the appearance of impropriety.
OPINION: We have before us your request for our opinion on whether a conflict of interest or the appearance of impropriety arises due to your handling of felony bind-overs before a part-time Municipal Court Judge who employs one of your assistant prosecutors as an associate in his law firm. You indicate in your letter that the assistant prosecutor will not appear in the Judge's courtroom.
The Code of Professional Responsibility expresses the general standards of conduct expected of lawyers and provides a guide from which lawyers may follow to ensure that their activities as lawyers positively reflect the legal system. Code of Professional Responsibility, Preface. Under DR 5-101(A), lawyers are precluded from accepting employment if the exercise of their professional judgment on behalf of their clients will be or reasonably may be affected for whatever reason, unless the client consents after full disclosure.
Therefore, if your professional judgment in proceedings before a part-time Municipal Court Judge will be, or reasonably may be affected by the fact that one of your assistant prosecutors also practices law with that Judge, then perhaps you should not appear before the Judge.
Disciplinary Rule 5-101(A) states that a lawyer may accept employment where his judgment may be affected by other interests if, the client consents after full disclosure. However, as a prosecutor your "client" is the public which cannot consent. ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1235 (1972). As prosecuting attorney you should especially guard against conflicts that may arise, given the fact that consent by the public to possible conflicts of interest is unavailable.
Canon 9 of the Code of Professional Responsibility also applies to the question presented. Expressly stated, Canon 9 recommends that lawyers should avoid even the appearance of professional impropriety. Furthermore, EC 9-1 states that lawyers need to promote public confidence in the legal profession. Once the public's confidence is gained it should be carefully guarded against any appearance of impropriety. Under EC 9-2, a lawyer is encouraged to determine his or her conduct, when explicit ethical guidance does not exist, by acting in a manner which promotes public confidence in the integrity of the legal profession.
If, in your own professional judgment, you believe that the appearance of impropriety may exist which does not promote public confidence in your office, then perhaps refraining from appearing before the particular Municipal Court Judge is well advised. It has been suggested that when an ethical decision regarding a possible appearance of impropriety arises, a useful maxim may be, "when in doubt, don't." Washington State Bar Assn. Op. 161 (1975).
While the conflict with regard to your assistant is evident, the question becomes whether that conflict can be imputed to you as prosecuting attorney. An assistant prosecuting attorney is an extension of the prosecuting attorney and therefore subject to any of the same limitations. An Ohio Attorney General Opinion states that "because an assistant prosecuting attorney is authorized to and often does stand in the place of his principal, it is only logical that such an assistant be subject to the same limitations and restrictions placed by law upon the prosecuting attorney." Ohio Att'y Gen. Op. 71-050 (1971).
Therefore, depending upon the circumstances surrounding the working relationship between you and your assistant and the potential for any appearance of impropriety that may arise by appearing before the Municipal Court Judge, you, as prosecutor, are in the best position to weigh any conflicting interests involved and make the proper decision. One factor to consider is, whether disqualification of the Judge or yourself would create a substantial hardship which might outweigh any appearance of impropriety.
In this Board's Opinion 87-022, a conflict of interest was said to exist between father and son law partners whereby each served respectively as Municipal Court Judge and as city law director. Our opinion was that the conflict arose not only out of their father/son relationship but also out of the law partnership. Their relationship as law partners created a conflict which could not be eliminated by the city law director hiring an assistant since the assistant would be affected by the direction and control of the Judge's son.
Therefore, if the working relationship between you and your assistant is closely intertwined then you may wish to disqualify yourself from appearing before the Judge. Again, the feasibility of refraining from appearing before the part-time Municipal Court Judge should be weighed against your duty to promote public confidence and avoid any appearance of impropriety.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.