When a former county public defender becomes county prosecutor, can the office still prosecute cases that were pending in the public defender's office, by assigning them to a special prosecutor?
Ohio BPC Opinion 88-015: Former Public Defender, Now Prosecutor, Appointing a Special Prosecutor
Short answer: The Board concluded that a former county public defender who became county prosecutor could appoint one of his assistants as special prosecutor to handle cases that had been pending before the public defender's office, and that the prosecutor should screen himself from any participation in those cases to avoid the appearance of impropriety.
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 Ohio Board of Professional Conduct withdrew this opinion by Advisory Opinion 2022-04 on June 10, 2022. It is no longer current guidance and is indexed here for historical research only. The opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 1.11 on former and current government officers) before relying on any specific rule mentioned here.
Plain-English summary
A county prosecutor who had previously served as county public defender asked whether he could appoint his assistant as special prosecutor to handle cases that were pending before the public defender's office while he held that role, so as to avoid any conflict or appearance of impropriety.
The Board observed that no provision of the Code of Professional Responsibility specifically addressed the situation, but that Canon 9 counseled lawyers to avoid even the appearance of professional impropriety. It concluded that appointing the assistant to prosecute the previously-pending cases was an ethical way to handle the matter. The Board noted the ABA's position that DR 5-105(D), which imputes a lawyer's disqualification to others in the firm, does not apply to government lawyers (ABA Formal Op. 342 (1975)), but it relied on the ABA opinion's further statement that the individual lawyer should be screened from any direct or indirect participation in the matter and barred from discussing the relevant transactions with colleagues. The Board concluded that the prosecutor's paramount concern, once the special prosecutor was appointed, should be divorcing himself from any participation in the affected cases.
Common questions
Q: Could the former public defender's office still prosecute cases it had previously defended?
A: Yes, through a special prosecutor. The Board concluded that appointing the prosecutor's assistant as special prosecutor for those cases was an ethical way to resolve any conflict or appearance of impropriety, under Canon 9.
Q: Did the prosecutor have to do anything personally?
A: Yes. The Board concluded the prosecutor should screen himself from any direct or indirect participation in the affected cases and should not discuss the relevant matters with the assistant handling them, following the ABA's guidance in Formal Op. 342.
Background and rules framework
The opinion applies former Canon 9 of the Ohio Code of Professional Responsibility (avoiding the appearance of impropriety) and discusses former DR 5-105(D) (imputed disqualification within a firm) as interpreted for government lawyers. The current parallels are Ohio Prof. Cond. R. 1.11 (special conflicts for former and current government officers and employees) and Model Rule 1.11.
Citations and references
Rules of Professional Conduct:
- Former Canon 9, Ohio Code of Professional Responsibility
- Former DR 5-105(D), Ohio Code of Professional Responsibility
Other opinions cited:
- ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975): imputed disqualification and screening of individual government lawyers
See also
- Ohio BPC Opinion 1988-013: Prosecutor Appearing Before a Judge Who Employs the Prosecutor's Assistant
- Ohio BPC Opinion 1988-008: Part-Time Prosecutors and Criminal Defense
- Ohio BPC Opinion 1988-002: Public Defender Running for Prosecutor
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-015.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 88-15
Issued June 17, 1988
Withdrawn by Adv. Op. 2022-04
[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 former county public defender, now serving as county prosecutor, may ethically appoint one of his or her assistants as special prosecutor to handle those cases which were pending before the public defender's office at the time he or she served as county public defender. In order to avoid any appearance of impropriety, the county prosecutor should not be involved in any aspect of the cases assigned to the special prosecutor.
OPINION: We have before us your request for our opinion regarding your duties as county prosecutor. You inquire whether you may ethically appoint your assistant as special prosecutor to handle cases that were pending before the public defenders office while you served as county public defender. You wish to avoid any possible conflicts or the appearance of impropriety.
Although there are no provisions in the Code of Professional Responsibility that specifically apply to your request, Canon 9 recommends that lawyers should avoid even the appearance of professional impropriety. It is our opinion that appointing your assistant to prosecute those cases which were pending before the public defender's office while you served as public defender is an ethical way in which to handle the situation and thereby avoid any appearance of impropriety.
The ABA has held that DR 5-105(D), which imputes a lawyer's disqualification to other members of his or her law firm, is inapplicable to government lawyers. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975). However, the ABA opinion also states that:
[a]lthough vicarious disqualification of a government department is not necessary or wise, the individual lawyer should be screened from any direct or indirect participation in the matter, and discussion with his colleagues concerning relevant transactions or set of transactions is prohibited by those rules. Id.
Therefore, once you have appointed a special prosecutor, your paramount concern should be divorcing yourself from any hint of participation in the affected cases.
In conclusion, it is our opinion and you are so advised that by appointing your assistant to assume the duty of prosecuting cases that were pending in the public defender's office while you served as county public defender, it appears that you have resolved any conflicts of interest or appearance of impropriety. However, we recommend that you screen yourself from any participation in the particular cases.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.