Can a part-time assistant county prosecutor share office space with a criminal defense lawyer and co-counsel civil cases with that lawyer?
Ohio BPC Opinion 1994-014: Assistant Prosecutor Office Sharing and Civil Co-Counsel
Short answer: The opinion concluded that an assistant county prosecutor in part-time private practice may share office space with an attorney whose practice includes criminal defense and may co-counsel civil cases unrelated to and not in conflict with the prosecutor's office, provided the lawyers protect client confidences and secrets through separate filing systems and secretarial support, keep their practices visibly separate, use separate firm names and letterhead, and comply with the fee-division restrictions for lawyers not in the same firm.
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, who shares office space with a lawyer whose practice includes criminal defense, may co-counsel that lawyer in civil cases unrelated to the prosecutor's office. It began with the stricter rules on criminal representation: a part-time prosecutor may not defend criminal cases against the State (Op. 88-008), that bar extends to firm members, and a firm-mate's violation triggers a reporting duty under DR 1-103 (Op. 89-9).
The Board declined to impute the criminal-defense bar to a lawyer who merely shares office space with the assistant prosecutor, relying on Opinion 92-13, which allowed such office sharing if confidences are protected, the practices are kept separate, and the prosecutor is screened from the office-mate's cases. The new question was whether sharing space plus collaborating on civil cases would suggest to the public that the defense lawyer could influence the assistant prosecutor.
Applying Canon 9 (avoiding even the appearance of impropriety), the Board concluded the concern is too remote to create an appearance of impropriety, and that any concern evaporates when the office-sharing lawyers maintain their practices in compliance with the Code: protecting confidences under DR 4-101, using office procedures that establish separateness under Canon 9, using separate firm names and letterhead under DR 2-102, and following the fee-division limits for lawyers not in the same firm under DR 2-107.
Currency note
The Ohio Board flags this opinion as a "CPR Opinion" interpreting the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007.
This opinion issued in 1994. Subsequent rule amendments or later opinions may have changed the analysis; the Ohio rules no longer use the "appearance of impropriety" formulation of former Canon 9. 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: Could an assistant prosecutor share office space with a criminal defense lawyer?
A: Yes. The Board, following Opinion 92-13, concluded an assistant county prosecutor in part-time private practice may share or sublet office space from a criminal defense lawyer if client confidences are protected, the practices are kept separate, and the prosecutor is screened from the office-mate's cases.
Q: Could the two share-office lawyers co-counsel a civil case together?
A: Yes, for civil cases not related to or in conflict with the prosecutor's office, provided the lawyers maintain the safeguards the Board listed.
Q: Did the Board require separate firm names and letterhead?
A: Yes. The Board concluded that under DR 2-102 the office-sharing lawyers must use separate firm names and letterhead, and under DR 2-107 they must follow the fee-division rules for lawyers who are not in the same firm.
Background and rules framework
The opinion interprets the former Ohio Code of Professional Responsibility: DR 4-101 (confidences and secrets), DR 2-102 (firm names and letterhead), DR 2-107 (division of fees among lawyers not in the same firm), DR 5-105 (the conflict basis for the criminal-defense bar), and former Canon 9 (avoiding the appearance of impropriety).
Citations and references
Rules of Professional Conduct:
- Former Ohio Code of Professional Responsibility DR 4-101, DR 2-102, DR 2-107, DR 5-105; Canon 9
Other opinions cited:
- Ohio BPC Ops. 92-13 (1992), 88-008 (1988), 89-9 (1989), 91-9 (1991), 91-5 (1991), 89-36 (1989), 88-19 (1988)
- Missouri Bar Admin. Informal Op. 1 (1982)
See also
- Ohio BPC Op. 1992-013: Prosecutor Sharing Office Space With Defense Counsel
- Ohio BPC Op. 1988-008: Part-Time Prosecutors and Criminal Defense
- Ohio BPC Op. 1991-009: Shared Office, Separate Practices, Fees and Confidentiality
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-94-014.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 94-14
Issued December 2, 1994
[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: It is proper for an assistant county prosecutor in part-time private practice to share
office space with an attorney whose practice includes criminal defense representation. Further,
these attorneys may co-counsel in civil cases not related to or in conflict with the prosecutor's
office. However, the office sharing attorneys must comply with the ethical standards within the
Ohio Code of Professional Responsibility by protecting confidences and secrets of clients through
separate filing systems and proper secretarial support, by utilizing office procedures that establish
and support the separateness of their practices, by using separate firm names and letterhead, and by
complying with the restrictions on division of fees by lawyers not in the same firm.
OPINION: This opinion addresses the following question regarding the private practice of law by
an assistant prosecutor who shares office space with an attorney whose practice includes criminal
defense representation:
Is it proper for an assistant county prosecutor in part-time private practice, who
shares office space with an attorney whose practice includes criminal defense
representation, to co-counsel with that attorney in civil cases not related to or in
conflict with the prosecutor's office?
Protection of the public is such an important function that prosecutors are held to high standards.
When a prosecutor or an assistant prosecutor engages in the private practice of law, ethical
restraints are imposed. The restraints are in deference to the prosecutor's duty to the sovereign.
The most extensive restraint is placed upon criminal representation. This Board has 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 his or her private practice." Ohio SupCt,
Bd of Comm’rs on Grievances & Discipline, Op. 88-008 (1988). The restraint is extended to firm
members. "Members of a prosecuting attorney's law firm may not represent criminal defendants if
their colleague, as prosecutor, is precluded from accepting employment under DR 5-105.” Id.
These restraints are to be heeded. When a criminal defense attorney is employed as an associate in
the same law firm as the county prosecutor, there is a duty under DR 1-103 to report the violation.
See Ohio SupCt, Bd of Comm’rs on Grievances & Discipline, Op. 89-9 (1989).
Op. 94-14 2
Yet, in this Board's view it not necessary to impute the restraint on representation of criminal
defendants to an attorney who shares office space with an assistant county prosecutor. "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."
Ohio SupCt Bd of Comm’rs on Grievances & Discipline, Op. 92-13 (1992).
Arising from opinion 92-13 comes the question presented in this opinion -- whether attorneys who
share office space may co-counsel on a civil case when one attorney is an assistant prosecuting
attorney in part-time private practice and the other attorney’s practice includes criminal defense
representation. The ethical concern is whether an office sharing arrangement and a collaborative
professional relationship on civil cases suggest to the public that the defense attorney is in a
position to influence the conduct of the assistant prosecutor. There is little authority on the issue.
A Missouri ethics opinion advises that a part-time prosecutor and a part-time special assistant
public defender may co-counsel for a plaintiff in a personal injury case even while the defender is
representing a convicted defendant in a case on appeal. Missouri Bar Admin., Informal Op. 1 (Jan.
1,1982).
Under Canon 9 of Ohio Code's of Professional Responsibility, "A Lawyer Should Avoid Even the
Appearance of Professional Impropriety." In this Board's view the ethical concern that clients or
the public might be led to believe that the lawyers have such a close personal and professional
relationship as to imply special advantage or unusual influence is too remote to give the appearance
of impropriety. If the concern does exist, it evaporates when the office sharing attorneys maintain
their private practices in a manner that complies with the Ohio Code of Professional Responsibility.
Under DR 4-101, the office sharing attorneys must protect confidences and secrets by utilizing
separate filing systems and proper secretarial support. Under Canon 9, they must utilize office
procedures that establish and support the separateness of their practices. Under DR 2-102, they
must use separate firm names and letterhead. Under DR 2-107, they must comply with the
restrictions on division of fees by lawyers who are not in the same firm. See Ohio SupCt Bd of
Comm’rs on Grievances and Discipline, Op. 92-13 (1992), 91-9 (1991), 91-5 (1991), 89-36 (1989)
and 88-19 (1988).
Op. 94-14 3
In conclusion, this Board advises that it is proper for an assistant county prosecutor in part-time
private practice to share office space with an attorney whose practice includes criminal defense
representation. Further, these attorneys may co-counsel in civil cases not related to or in conflict
with the prosecutor's office. However, the office sharing attorneys must comply with the ethical
standards within the Ohio Code of Professional Responsibility by protecting confidences and
secrets of clients through separate filing systems and proper secretarial support, by utilizing office
procedures that establish and support the separateness of their practices, by using separate firm
names and letterhead, and by complying with the restrictions on division of fees by lawyers not in
the same firm.
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.