Can a part-time assistant prosecutor share office space with a criminal defense attorney?
Ohio BPC Opinion 92-013: Assistant County Prosecutor Sharing Office Space With a Criminal Defense Attorney
Short answer: The opinion concluded that an assistant county prosecutor in part-time private practice may share or sublet office space from a criminal defense attorney, if client confidences are protected, office procedures keep the practices separate, and the prosecutor screens the assistant from the office-sharing attorney's cases.
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.
Plain-English summary
The Board addressed whether an assistant county prosecutor in part-time private practice may share office space with, or sublet from, an attorney whose practice includes criminal defense. It began by describing the prosecutor's role representing the sovereign and the part-time nature of many assistant prosecutor positions. The Board recalled its prior advice, in Opinion 88-8, that a part-time prosecutor may not represent criminal defendants against the State and that, under DR 5-105(D), that disqualification is imputed to partners and associates because the public cannot consent to the conflict.
The Board distinguished office-sharing from a firm relationship. By its terms, DR 5-105(D) does not impute disqualification to attorneys who merely share office space, and the Board had previously declined to apply imputed disqualification in that situation (Opinion 89-5), advising instead that the facts and circumstances of the relationship determine whether the lawyers can ethically represent opposing sides. Surveying other jurisdictions, the Board noted that ethics committees disagree on whether a part-time prosecutor may share space with criminal defense lawyers, with some finding it proper and others improper, and that conditions are commonly required.
Applying Canon 9 (appearance of impropriety) and Canon 4 (confidences and secrets), the Board concluded that an assistant county prosecutor in part-time private practice may share or sublet office space from a criminal defense attorney, provided that confidences and secrets are protected through separate filing systems and proper secretarial support (with a shared secretary instructed on proper procedures if separate secretaries are not feasible), that office procedures establish and support the separateness of the practices, and that the prosecutor screens the assistant prosecutor from cases represented by the office-sharing attorney. These conditions apply whether the space is shared or sublet.
Currency note
This opinion issued in 1992 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Subsequent rule amendments or later opinions may have changed the analysis. 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.
Common questions
Q: Can a part-time assistant prosecutor share an office with a criminal defense lawyer?
A: Under this opinion, yes, with conditions. The Board concluded an assistant county prosecutor in part-time private practice may share or sublet office space from a criminal defense attorney if the listed safeguards are met.
Q: Is the prosecutor's disqualification imputed to an office-mate?
A: No. The opinion explained that by its terms DR 5-105(D) does not impute disqualification to attorneys who merely share office space, unlike partners or associates in the same firm.
Q: What safeguards did the Board require?
A: The opinion required separate filing systems and proper secretarial support to protect confidences, office procedures reinforcing the separateness of the practices, and the prosecutor screening the assistant prosecutor from the office-sharing attorney's cases.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility DR 5-105 (representation of clients with differing interests, including DR 5-105(A) and the imputation provision DR 5-105(D)), with Canon 4 (preserving confidences and secrets) and Canon 9 (avoiding the appearance of impropriety). The analogous Model Rules provisions are MR 1.7 (conflicts of interest) and MR 1.10 (imputation of conflicts).
Citations and references
Rules of Professional Responsibility (Ohio, former):
- DR 5-105, DR 5-105(A), DR 5-105(D), differing interests and imputed disqualification
- Canon 4, confidences and secrets; Canon 9, appearance of impropriety
Statutes:
- Ohio Rev. Code Ann. Sections 309.06, 325.11, 120.39(A) (Baldwin), prosecutor appointment and practice
- Ohio Rev. Code Ann. Sections 309.01, 309.08, 309.09 (Baldwin), prosecuting attorney duties
Other opinions cited:
- Ohio Bd. of Comm'rs on Grievances and Discipline, Op. 88-8 (1988); Op. 89-9 (1989); Op. 89-5 (1989)
- Ohio State Bar Ass'n, Op. 83-1 (1983); State Bar of Michigan, Informal Op. RI-82 (1991); Virginia State Bar, Op. 1416 (1991)
See also
- Ohio BPC Op. 1988-008: Part-Time Prosecutors and Criminal Defense
- Ohio BPC Op. 1989-005: Office-Sharing Lawyers on Opposing Sides of a Divorce
- Ohio BPC Op. 1991-009: Shared Office, Separate Practices, Fees and Confidentiality
- Ohio BPC Op. 1989-023: Assistant Prosecutor Also a City Police Officer
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-92-013.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 92-13
Issued June 19, 1992
[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 in part-time private practice may share office space with or sublet office space from an attorney whose practice includes criminal defense representation provided the following: confidences and secrets of clients must be protected through separate filing systems and proper secretarial support; the appearance of impropriety must be diminished by office procedures that establish and support the separateness of the practices; and the prosecutor must screen the assistant prosecutor from cases represented by the attorney with whom the office space is shared.
OPINION: The question presented is whether an assistant county prosecutor in part-time private practice may share office space with or sublet office space from an attorney whose practice includes criminal defense representation.
A prosecutor represents the sovereign. Each county in Ohio elects a prosecuting attorney who by statute has authority to inquire into the commission of crimes within a county; to prosecute, on behalf of the state, complaints, suits and controversies in which the state is a party; and to serve as legal adviser to county officers and boards. See Ohio Rev. Code Ann. §§ 309.01, 309.08 and 309.09 (Baldwin 1985 and Supp. 1991). To carry out these duties, a prosecuting attorney may appoint assistant prosecutors as are necessary for the proper performance of the duties of the office. See Ohio Rev. Code Ann. § 309.06 (Baldwin 1985).
Despite the importance of the prosecutorial function, the assistant prosecutor position is a part-time position in some jurisdictions. As a consequence, it is not unusual for a part-time assistant prosecutor to also have a private part-time practice of law. It is also not unusual for a prosecutor to have a private practice of law, since by statute a prosecutor may elect to engage in the private practice of law. See Ohio Rev. Code Ann. § 325.11 (Baldwin Supp. 1991).
The prosecutor's and assistant prosecutor's duty to the sovereign requires that ethical restraints be placed upon his or her part-time practice of law. These restraints are often imputed to the attorneys with whom the part-time prosecutor or assistant prosecutor practices law. In the past, this Board advised that a part-time prosecutor, whose duty it is to represent the State of Ohio in criminal cases, may not represent criminal defendants against the State of Ohio in private practice; nor, may members of a prosecuting attorney's law firm represent criminal defendants, if their colleague, as prosecutor, is precluded from accepting employment. Ohio SupCt Bd of Comm'rs on Grievances and Discipline, Op. 88-8 (1988). Such employment is adverse to the public and the conflict cannot be cured since the public cannot give consent. Id.
Disciplinary Rule 5-105 governs representation of clients with differing interests.
DR 5-105(A) A lawyer shall decline proffered employment if the exercise of his [her] independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105 (C).
(B) A lawyer shall not continue multiple employment if the exercise of his [her] independent professional judgment in behalf of a client will be or is likely to be adversely affected by his [her] representation of another client, except to the extent permitted under DR 5-105 (C).
(C) In the situations covered by DR-5-105 (A) and (B), a lawyer may represent multiple clients if it is obvious that he [she] can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his [her] independent professional judgment on behalf of each.
(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his [her] or his [her] firm may accept or continue such employment.
It is not obvious that a part-time county prosecutor could represent the public and also privately represent criminal defendants; nor, is it possible for a part-time county prosecutor to obtain consent from the public. Therefore, such representation is prohibited under Disciplinary Rule 5-105 (A) and (C) and the disqualification is imputed to partners or associates through Disciplinary Rule 5-105 (D). See Ohio SupCt Bd of Comm'rs Op. 88-8 (1988). See also Ohio Rev. Code Ann. § 120.39 (A) (Baldwin 1987) (Counsel appointed by the court, co-counsel appointed to assist the state public defender or a county of joint county public defender, and any public defender, county public defender, or joint county defender or members or their offices are prohibited from being a partner or employee of any prosecuting attorney.) When a criminal defense attorney is employed as an associate in the same law firm as the county prosecutor, there is a duty to report such violation. See Ohio SupCt, Bd of Comm'rs on Grievances and Discipline, Op. 89-9 (1989).
Across the nation, ethics committees disagree on whether or not it is proper for a part-time prosecutor to share office space with lawyers who represent criminal defendants. Some states find it proper. See Alabama State Bar, Op. RO 81-543 (1981);Virginia State Bar, Op. 574 (1984); Idaho State Bar, Op. 119 (undated) Missouri Bar Administration, Informal Op. 3 (1982). Other states find it improper. See Iowa State Bar Ass'n, Op. 81-21 (1981); New Hampshire Bar Ass'n, Op 12 (1982); State Bar of Michigan, Informal Op. CI-706 (1982); Illinois State Bar Ass'n Op. 783 (1982). An Ohio committee did not impute the disqualification to lawyers who share office space with an assistant county prosecuting attorney but suggested that under Canon 9 the lawyer decline proffered employment to represent a defendant in a criminal action where the assistant county prosecutor represents the State. See Ohio State Bar Ass'n, Op. 83-1 (1983). As to the propriety of a criminal defense lawyer renting or leasing office space to a prosecutor, ethics committees advise that certain conditions must be met. See State Bar of Michigan, Informal Op. RI-82 (1991) (proper under certain circumstances); and Virginia State Bar, Op. 1416 (1991) (improper under certain circumstances).
Disciplinary Rule 5-105(D) by its language does not impute disqualification to attorneys who share office space. In the past, this Board has not applied the rule of imputed disqualification to attorneys who share office space. Ohio SupCt Bd of Comm'rs on Grievances and Discipline, Op. 89-5 (1989). The Board advised that when two individual attorneys share office space, the facts and circumstances of their relationship will determine if they can ethically represent opposing sides in a case. Id.
In determining whether a part-time prosecutor can share office space with an attorney who does criminal defense work, consideration must be given as to whether there is an appearance of impropriety as proscribed by Canon 9. Consideration must also be given as to whether the nature of the arrangement allows both lawyers to protect the clients' confidences and secrets under Canon 4. A further consideration is that although it might not be ideal for a part-time prosecutor to share office space with an attorney who does criminal defense work, in reality, in some counties in Ohio it may be an economic necessity.
In office sharing arrangements confidences and secrets can be protected by separate filing systems and separate secretaries. If separate secretaries are not feasible, a shared secretary can be instructed on proper procedures to ensure that confidences and secrets are not violated. To diminish the appearance of impropriety, office procedures should establish and enforce the separateness of the practices. An appearance of impropriety is further diminished by the prosecutor screening the assistant prosecutor from cases represented by the attorney with whom the office space is shared. These considerations would apply regardless of whether the office space was shared or sublet.
In conclusion, it is the Board's opinion that an assistant county prosecutor in part-time private practice may share office space with or sublet office space from an attorney whose practice includes criminal defense representation, provided the following: confidences and secrets of clients must be protected through separate filing systems and proper secretarial support; the appearance of impropriety must be diminished by office procedures that establish and support the separateness of the practices; and the prosecutor must screen the assistant prosecutor from cases represented by the attorney with whom the office space is shared.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Code of Professional Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.