Can a county commissioner who is also a lawyer represent clients in the Court of Common Pleas of the same county, and can the commissioner's law partner take those cases?
Ohio BPC Opinion 88-020: County Commissioner Who Is a Lawyer Practicing in the Court of Common Pleas
Short answer: The Board concluded that the former Code did not specifically preclude a county commissioner who is a lawyer from appearing in the county's Court of Common Pleas, in civil or criminal cases, as long as doing so did not create the appearance of impropriety; if the commissioner must decline a matter, the partner or associate is also precluded under former DR 5-105(D).
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This opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. The opinion's PDF also carries a cross-reference to Ohio Attorney General Opinion 94-079 (Nov. 29, 1994). Treat this page as historical context, not current guidance.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) and applicable public-official conflict statutes before relying on any specific rule mentioned here.
Plain-English summary
A county commissioner who is also a lawyer asked whether it would be a conflict of interest to practice law in the Court of Common Pleas of the same county, both for himself and for his law partner, in criminal-defense and civil matters.
The Board reviewed former DR 8-101 (a lawyer holding public office shall not use the position to obtain a special advantage or to influence a tribunal in favor of himself or a client), EC 8-8 (a lawyer-public officer should avoid activities where personal or professional interests conflict with official duties), and Canon 9 (avoiding the appearance of impropriety). It noted that Ohio Rev. Code Section 102.04(A) bars a county commissioner from receiving compensation for services to certain other public bodies but excludes a court of law from the ban, and that a 1975 Ohio Ethics Commission opinion (Op. 75-018) had concluded a county commissioner who is an attorney may represent persons in criminal cases before courts in the county. The Board saw no distinction between civil and criminal cases, or between appointed and private criminal work, for the conflict analysis, and suggested the commissioner abstain from voting on matters with a direct effect on his private practice. On the partner question, it applied former DR 5-105(D): if a lawyer must decline employment, his partner or associate is also precluded, while noting that imputed disqualification was increasingly being addressed through screening devices.
Common questions
Q: Could a county commissioner who is a lawyer appear in the county's Court of Common Pleas?
A: Yes, generally. The Board concluded the former Code did not specifically preclude it, in civil or criminal cases, unless doing so would create the appearance of impropriety.
Q: Did it matter whether the case was civil or criminal, appointed or private?
A: No. The Board stated it saw no distinction between civil and criminal cases, or between court-appointed and private criminal representation, for the conflict determination.
Q: Could the commissioner's law partner take such cases?
A: Only if the commissioner himself was not required to decline them. The Board applied former DR 5-105(D), under which a partner or associate is precluded from a matter the commissioner is required to decline, while noting screening devices were being used to address imputed disqualification.
Background and rules framework
The opinion applies former DR 8-101 (lawyers holding public office), EC 8-8, Canon 9 (appearance of impropriety), and DR 5-105(D) (imputed disqualification) of the Ohio Code of Professional Responsibility, together with Ohio Rev. Code Section 102.04 and an Ohio Ethics Commission opinion. The current parallels are Ohio Prof. Cond. R. 1.7 (conflicts of interest) and 1.10 (imputation), with Model Rules 1.7 and 1.10.
Citations and references
Rules of Professional Conduct:
- Former DR 8-101, Ohio Code of Professional Responsibility
- Former DR 5-105(D), Ohio Code of Professional Responsibility
- Former EC 8-8 and Canon 9, Ohio Code of Professional Responsibility
Statutes:
- Ohio Rev. Code Section 102.04(A) (compensation of public officials; exclusion for courts of law)
Cases:
- Manning v. Fort Deposit Bank, No. 86-6239 (6th Cir. June 9, 1998), screening to rebut imputed disqualification
Other opinions cited:
- Ohio Ethics Commission, Op. 75-018 (1975): a county commissioner who is an attorney may represent persons in criminal cases before county courts
See also
- Ohio BPC Opinion 1988-021: Conflict in Representing a Public Board and Opposing Landowners
- Ohio BPC Opinion 1988-015: Former Public Defender, Now Prosecutor, Appointing a Special Prosecutor
- Ohio BPC Opinion 1988-010: Court of Claims Commissioner Serving as Special Assistant Attorney General
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-020.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 88-020
Issued August 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.]
[See O.A.G. Op. 94-079, Nov. 29, 1994]
SYLLABUS: Under the Code of Professional Responsibility, a County Commissioner is not specifically precluded from appearing in the County's Court of Common Pleas provided doing so does not create the appearance of impropriety. If a lawyer is required to decline employment then his or her partner or associate is also precluded from accepting such employment.
OPINION: We have before us your request for an advisory opinion on whether it would be a conflict of interest for a County Commissioner to practice law in the Court of Common Pleas of the same county. In your request you ask whether you and your law partner may practice criminal defense law or accept appointments for criminal cases and whether you and your law partner may practice civil law in the Court of Common Pleas.
Under DR 8-101 of the Code of Professional Responsibility,
[a] lawyer who holds public office shall not: ...use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest. ...use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client...
In addition, EC 8-8 of the Code advised that a lawyer who is a public officer should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties. Canon 9 of the Code also encourages lawyers to avoid even the appearance of impropriety.
Under the Ohio Revised Code, Section 102.04(A) a county commissioner is precluded from receiving compensation for services rendered to other departments, boards, commissions, and the like. However, this provision specifically excludes a court of law from the ban. In a 1975 opinion by the Ohio Ethics Commission interpreting Section 102.04(B) of the Revised Code, it was held that a county commissioner, who is also an attorney, may represent persons in criminal cases which are before a court within the county in which he serves as commissioner. Ohio Ethics Commission, Op. 75-018 (1975). Although the courts involved in that opinion were the juvenile and municipal courts, we believe the opinion also applies to the Court of Common Pleas.
We believe that the same decision making process should be utilized when determining whether a conflict of interest exists for both criminal and civil cases. In other words, we see no distinction between a County Commissioner appearing as counsel before the Court of Common Pleas for civil cases or criminal cases. Furthermore, for purposes of a conflict determination, we see no distinction between criminal work that is either court appointed or private representation. We suggest, however, that as County Commissioner you abstain from voting on any matters which have a direct effect on your private practice.
The issue of whether your partner may handle cases in the Court of Common Pleas is addressed in DR 5-105(D) which states that, if a lawyer is required to decline employment then his or her partner or associate is also precluded from accepting such employment. However, this imputed disqualification is now successfully being avoided by the use of "Chinese Walls" or other screening devices which rebut the presumption of disqualification by partners and associates of the "infected lawyer." See, e.g., Manning v. Fort Deposit Bank, No. 86-6239 (6th Cir. 6/9/98).
In conclusion, it is our opinion and you are so advised that a County Commissioner is not precluded, under the Code of Professional Responsibility, from appearing in the county's Court of Common Pleas. However, a County Commissioner may not appear before the Court of Common Pleas if doing so would create the appearance of impropriety. Our opinion does not make a distinction between appearing in the Court of Common Pleas in civil or criminal cases. Under the Code of Professional Responsibility, partners of County Commissioners would be disqualified from appearing in cases in which the Commissioner is disqualified.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.
James W. Mason, Esq.
Secretary, Board of Commissioners