OHBPC 1989-08-18

Can a lawyer be both an assistant county prosecutor and a city police officer in the same county?

Short answer: The Board concluded that the positions of assistant county prosecutor and city police officer are not per se incompatible, but the lawyer must choose between them if one is subordinate to or a check on the other, must not prosecute any case in which he may be called to testify, and must avoid the appearance of impropriety. The opinion interprets the former Ohio Code of Professional Responsibility, since superseded.

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 Not binding precedent.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 89-023: Assistant County Prosecutor Who Is Also a City Police Officer

Short answer: The Board concluded that holding both positions is not per se incompatible, but the lawyer must choose between them if one is subordinate to or a check on the other, may not prosecute a case in which he may be called to testify, and must 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.

View original opinion

Currency note

This opinion was issued in 1989 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance.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 before relying on any specific rule mentioned here.

Plain-English summary

The question was whether the Code prohibited a lawyer from simultaneously serving as an assistant county prosecutor and a city police officer in the same county. The Board noted that, while the ABA Standards favor making prosecutor a full-time position, most prosecutors are not full-time, and dual employment must be evaluated case by case.

The Board concluded the two positions are not per se incompatible, but identified circumstances forcing a choice: if the positions are subordinate to, or a check on, each other (citing State ex rel. Attorney General v. Gebert), or if it is physically impossible to perform both. It listed compatibility variables drawn from an Ohio Attorney General opinion (79-111): the remoteness of a potential conflict, the person's ability to remove himself, whether he exercises decision-making authority in both, and whether the conflict touches the primary functions of each. It added that under DR 5-101(B) and DR 5-102(A) the lawyer must withdraw when aware he may be called as a witness, so an assistant prosecutor could not be called as a police witness in a case he prosecutes (EC 5-9), though DR 5-101 does not require excusal simply because another officer from his force may testify. Invoking Canon 9 and EC 9-2, the Board concluded that any time a case presents a conflict or the appearance of impropriety, the prosecutor should remove himself.

Common questions

Q: Are the two jobs automatically a disqualifying conflict?

A: Under this opinion, no. The Board concluded the positions are not per se incompatible and must be evaluated case by case.

Q: When must the lawyer give up one position?

A: The opinion required a choice where one position is subordinate to or a check on the other, or where it is physically impossible to perform both.

Q: Can he prosecute a case in which he is a witness?

A: No. The Board concluded that under DR 5-101(B) and DR 5-102(A) the lawyer must not prosecute a case in which he may be called to testify.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility, DR 5-101(B) and DR 5-102(A) (lawyer as witness and withdrawal), EC 5-9 (advocate-witness roles), and Canon 9 with EC 9-2 (avoiding the appearance of impropriety). It also draws on Ohio Attorney General Opinion 79-111 for compatibility factors.

Citations and references

Rules of Professional Responsibility (Ohio):

Former Code of Professional Responsibility, DR 5-101(B), DR 5-102(A), lawyer as witness
Former Code of Professional Responsibility, EC 5-9; Canon 9; EC 9-2

Cases:

State ex rel. Attorney General v. Gebert, 12 Ohio C.C. (n.s.) 274 (C.C. Franklin Co. 1909), incompatible offices

Other opinions and authorities cited:

Ohio Atty. Gen. Op. 79-111 (1979): compatibility factors
ABA Standards Relating to the Prosecution Function (1971); Wolfram, Modern Legal Ethics 454-455 (1986)

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-023.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 89-23
Issued August 18, 1989

[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: An assistant county prosecutor, who serves as a city police officer within the same county, must choose between the two positions only if one position is subordinate to the other. The assistant county prosecutor may not prosecute any case in which he may be called to testify as a witness. The assistant county prosecutor should avoid any appearance of impropriety and act in a manner which promotes public confidence in the legal profession.

OPINION: We have before us your request for an advisory opinion on whether the Code of Professional Responsibility prohibits an attorney from simultaneously holding the positions of assistant county prosecutor and city police officer within the same county.

The ABA Standards relating to the prosecution function state that an important step in achieving the goal of professionalism is to make the position of prosecutor a full-time occupation for its holder. ABA Standards Relating to the Prosecution Function 58 (1971). However, the majority of prosecutors in the United States are not full-time positions. Wolfram, Modern Legal Ethics 454-455 (1986).

Dual employment of any kind must be evaluated on a case by case basis. In this instance, if the positions of assistant county prosecutor and city police officer are subordinate to, or in any way a check upon each other, then the lawyer involved must choose between the two positions. See, e.g., State ex rel. Attorney General v. Gebert, 12 Ohio C.C. (n.s.) 274 (C.C. Franklin Co., 1909). Furthermore, if it is physically impossible for one person to carry out the duties of both positions, that person must choose one position to pursue.

An attorney general opinion suggests several other variables which should also be considered when determining the compatibility of two positions. These include:

(1) the degree of remoteness of a potential conflict,
(2) the ability or inability of the individual to remove himself from the conflict,
(3) whether the individual exercises decision making authority in both positions,
(4) whether the potential conflict involves primary functions of each position.
Ohio Atty. Gen. Op. 79-111 (1979).

Although county prosecutor and city policeman are not per se incompatible positions, considering these variables in any particular instance may require a different result. There are also situations where the prosecutor may have to decline a particular case. For example, under DR 5-101(B) and DR 5-102 (A), lawyers are required to withdraw from representation when they are aware of the possibility of being called as a witness in the same case. Therefore, it would be a conflict for an assistant prosecuting attorney to be called as a police witness in a case he is prosecuting. The rules of an advocate and witness are inconsistent because the advocate's function is to argue the cause of another while the witness' function is to state the facts objectively. Code of Professional Responsibility, EC 5-9.

We agree, however, that DR 5-101 does not require a person holding both positions to be excused from a case simply because an officer from the city police force of which he or she is a member may be called to testify.

Canon 9 recommends that lawyers avoid even the appearance of professional impropriety. When ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity of the legal profession. Code of Professional Responsibility, EC 9-2.

In conclusion, it is our opinion and you are so advised that the positions of county prosecutor and city police office are not per se incompatible. Each case must, however, be evaluated individually. If one position is a check on, or subordinate to the other, for example, a conflict exists. Further, a conflict could exist in a particular case even if the positions are not inherently incompatible. Any time a case presents a conflict or the appearance of impropriety, the prosecutor should remove him or herself from the case.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.