OHBPC 1989-04-14

Must a municipal prosecutor report a criminal defense lawyer who works in the same firm as the county prosecutor?

Short answer: The Board concluded that a municipal prosecutor who knows a criminal defense attorney is employed by the same law firm as the county prosecutor has a duty under DR 1-103 to report that knowledge to the authorities empowered to investigate, because the imputed-disqualification problem identified in Opinion 88-008 makes it a violation. The opinion interprets the former Ohio Code of Professional Responsibility, since superseded, and has been withdrawn.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

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Ohio BPC Opinion 89-009: Prosecutor's Duty to Report a Defense Lawyer in the County Prosecutor's Firm

Short answer: The Board concluded that a municipal prosecutor who knows a criminal defense attorney works in the same law firm as the county prosecutor has a duty under DR 1-103 to report that knowledge to the authorities empowered to investigate.

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.

View original opinion

Currency note

The Board withdrew this opinion by Advisory Opinion 2019-08 on August 2, 2019. It was issued in 1989 under the former Ohio Code of Professional Responsibility, since superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance.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. 8.3 on reporting professional misconduct) before relying on any specific rule mentioned here.

Plain-English summary

The question concerned the duty of a municipal prosecutor who knows that a criminal defense attorney is employed by the same law firm as the county prosecutor. The Board treated the underlying conflict as established: it pointed to Advisory Opinion 88-008, which examined prosecutors representing criminal defendants, and noted that when one member of a law firm may not accept employment, the other members are likewise precluded from accepting it.

Given that conflict, the Board turned to the reporting duty. It explained that DR 1-103 requires a lawyer who possesses knowledge of a violation of a Disciplinary Rule to report that knowledge to the authorities responsible for investigating such violations, grounding the duty in every lawyer's responsibility for maintaining the integrity and competence of the bar (EC 1-1) and in EC 1-4, which provides that the integrity of the profession can be maintained only if violations are brought to the attention of the proper officials. The Board concluded that a municipal prosecutor who has knowledge of such a violation has a responsibility to report it, and that such a situation arises when the municipal prosecutor knows a criminal defense attorney is employed by the same firm as the county prosecutor.

Common questions

Q: Did the prosecutor have to report the defense lawyer's firm conflict?

A: Under this opinion, yes. The Board concluded that DR 1-103 required the municipal prosecutor to report knowledge of the violation to the authorities empowered to investigate.

Q: Why was the firm arrangement treated as a violation?

A: The Board relied on Opinion 88-008 and the imputed-disqualification principle: because the county prosecutor could not undertake the conflicting defense work, other members of the firm were likewise precluded, so a defense lawyer in that firm presented a violation.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility, DR 1-103 (duty to report a lawyer's violation of a Disciplinary Rule), together with EC 1-1 and EC 1-4. It builds on Advisory Opinion 88-008's treatment of prosecutors and imputed disqualification.

Citations and references

Rules of Professional Responsibility (Ohio):

Former Code of Professional Responsibility, DR 1-103, duty to report disciplinary-rule violations
Former Code of Professional Responsibility, EC 1-1 and EC 1-4

Other opinions cited:

Ohio Advisory Opinion 88-008: prosecutors representing criminal defendants and imputed disqualification

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-009.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 89-09
Issued April 14, 1989
Withdrawn by Adv. Op. 2019-08

[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 municipal prosecutor, who has knowledge that a criminal defense attorney is employed as an associate in the same law firm as the county prosecutor, has a duty, under DR 1-103 of the Code of Professional Responsibility, to report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

OPINION: We have before us your request for our opinion concerning the duty of a municipal prosecutor when he or she knows that a criminal defense attorney is employed by the same law firm as the county prosecutor. Advisory Opinion 88-008 thoroughly examines the issue of prosecutors representing criminal defendants. When a member of a law firm may not accept employment then other members of that law firm are likewise precluded from accepting such employment.

Disciplinary Rule 1-103 clearly states that a lawyer who possesses knowledge of a violation of a Disciplinary Rule has a duty to report that knowledge to the authorities that have the responsibility to investigate such violations. The reason for this duty is that every lawyer has the ethical responsibility for maintaining the integrity and improving the competence of the bar. Ethical Consideration 1-1. According to Ethical Consideration 1-4:

The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the attention of the proper officials. A lawyer should reveal voluntarily to those officials all unprivileged knowledge of conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules.

It is our opinion and you are so advised that a municipal prosecutor, who has knowledge of a violation of a Disciplinary Rule, has a responsibility to report that knowledge to the proper authorities. Such a situation arises when a municipal prosecutor knows that a criminal defense attorney is employed by the same law firm as the county prosecutor.

This opinion is advisory in nature, is based upon the facts as presented and is limited to questions arising under the Code of Professional Responsibility.