Can a lawyer who serves on a city council represent clients in that city's municipal court, in civil and in criminal cases?

Plain-English summary

The Board addressed whether a lawyer who is a city council member may practice in the municipal court of the city the lawyer serves, expressly leaving any Ohio Ethics Law question to the Ohio Ethics Commission. It described the statutory framework: municipal courts are state-created, council appropriates operating funds and judges' compensation, and a council member has working relationships with police and the law director.

On civil matters, the Board found no rule imposing an absolute bar simply because council appropriates court funds, reasoning that appropriating money does not destroy judicial independence. It concluded a council member may represent civil clients in the municipal court if restrictions are heeded: under DR 9-101(B) no private employment in a matter in which the lawyer had substantial responsibility as a council member; under DR 9-101(C) no stating or implying improper influence over a tribunal; under DR 8-101(A)(2) no using the public position to influence a tribunal for the lawyer or client; and under Canon 9 no representation adverse to the municipality, its officials, or employees, consistent with EC 8-8 and authority from several states.

On criminal matters, the Board concluded a council member may not represent criminal defendants in that municipal court, privately or by appointment. It reasoned this creates an appearance of impropriety under Canon 9, particularly where the defendant was investigated or arrested by the city's police or prosecuted by the city's law director. Even though a Chapter 731 council has legislative power only and no control over the police department, council determines department staffing and sets salaries and works collaboratively with the mayor and police, so there is at least perceived authority giving rise to an appearance of impropriety regardless of actual supervision.

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Board flags this opinion as a "CPR Opinion" interpreting the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007.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 1996. 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 Treat this page as historical context, not current guidance.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: Can a lawyer on city council take civil cases in the city's municipal court?

A: Yes, with limits. The Board concluded a council member may represent civil clients in the municipal court if the lawyer avoids matters in which they had substantial responsibility, does not trade on the public position, and does not represent clients adverse to the municipality.

Q: Can a council member defend criminal cases in that municipal court?

A: No. The Board concluded a council member may not represent criminal defendants, privately or by appointment, in that municipal court, because it creates an appearance of impropriety under Canon 9.

Q: Does it matter that council does not supervise the police?

A: No. The Board concluded that even where council has only legislative power, it sets police staffing and salaries and works with the police and law director, so there is at least perceived authority creating an appearance of impropriety regardless of actual supervision.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility: DR 8-101(A)(2) (using public office to influence a tribunal), DR 9-101(B) (private employment in a matter of prior substantial responsibility), DR 9-101(C) (implying improper influence), and Canon 9 (appearance of impropriety), with reference to EC 8-8, DR 5-101, and DR 5-105, applied against Ohio's municipal-court and Chapter 731 local-government statutes.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 8-101(A)(2), DR 9-101(B), DR 9-101(C), Canon 9, DR 5-101, DR 5-105; EC 8-8

Statutes:

• Ohio Const. art. IV; art. XVIII; Ohio Rev. Code Chapters 705, 731, 733, 737; R.C. 1901.11, 1901.026

Other opinions cited:

• Rhode Island Op. 93-82; Connecticut Ops. 91-17, 37; New Jersey Op. 538; Michigan Op. RI-126; California Op. 1981-63; Arizona Ops. 82-14, 93-07; New Hampshire Ops. 1988-9/12, 1992-93/2; Texas Op. 497; Nassau County Op. 93-20; Alabama Op. RO 90-54; Maine Op. 45; South Carolina Op. 82-11

See also

• Ohio BPC Op. 1995-011: One Prosecutor's Office Handling Both Sides of a Cross-Complaint
• Ohio BPC Op. 1989-023: Assistant Prosecutor Also Serving as a City Police Officer
• Ohio BPC Op. 1988-002: Public Defender Running for Prosecutor

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-96-006.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 96-6
                                 Issued August 9, 1996

[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 under the Ohio Code of Professional
Responsibility for a lawyer to represent clients in civil matters in a
municipal court while serving as a city council person for the municipality if
certain restrictions are heeded. The lawyer may not accept private
employment in a matter in which he or she has or had substantial
responsibility as a city council person. The lawyer may not state or imply
that he or she can influence improperly or upon irrelevant grounds a
tribunal. The lawyer may not use his or her public position as council
person to influence a tribunal to act in favor of a client or in favor of himself
or herself. The lawyer may not accept private employment in matters
adverse to the municipality, the officials, or the employees of the
municipality.

It is improper under the Ohio Code of Professional Responsibility for a
lawyer to represent, privately or by court appointment, criminal defendants
in municipal court while serving as a city council person for the
municipality.

OPINION: This opinion addresses whether it is proper under the Ohio
Code of Professional Responsibility for a city council person to practice law
in a municipal court in the city in which he or she serves as council person.

    1. Is it proper for a lawyer to represent clients in civil matters
       in a municipal court while serving as a city council person
       for the municipality?

    2. Is it proper for a lawyer to undertake private or court
       appointed criminal defense representation in a municipal

Opinion 96-6 2

      court while serving as a city council person for the
      municipality?

Introduction

In this opinion the Board does not address the application of Ohio Ethics
Law to the questions raised since that interpretation falls within the
authority of the Ohio Ethics Commission pursuant to Section 102.01(F)(3)
and 102.08(A), (B) of the Ohio Revised Code. The questions are answered
by determining whether the conduct is proper under the Ohio Code of
Professional Responsibility. To make this determination, it is necessary to
briefly examine Ohio law governing local governments and municipal
courts.

Municipal courts are statutory courts established by the state legislature
pursuant to constitutional authority. See Ohio Const. art. IV, §1. The
compensation of municipal judges is set by law and is paid from the state,
county, and city treasuries. See Ohio Const. art. IV, § 6(B); Ohio Rev. Code
Ann. §§ 141.04(A)(5), 1901.11(B), (C) (Baldwin 1994). Operating costs of
municipal courts are paid by cities and counties as prescribed by statute.
See Ohio Rev. Code Ann. §§ 1901.024, 1901.026 (Baldwin 1994).

In Ohio, there are different forms of local government from which citizens
may choose. There are four statutory plans of local government and a
charter plan of local government. See Ohio Const. art. XVIII, §§ 2, 7; Ohio
R.C. Chapters 705, 731, 733 (Baldwin 1994 & Supp. 1996). It is outside
the scope of this opinion to advise upon the questions raised with regard to
each other form of government. This opinion refers to a statutory plan of
government formed pursuant to Chapter 731 of the Ohio Revised Code.
Nevertheless, the advice contained within may have applicability for
attorneys who serve as part of a legislative authority in other forms of local
government.

A city council person is an elected member of the legislative authority of a
city. See Ohio Rev. Code Ann. § 731.03 (Baldwin 1994). As a member of
the legislative authority of a city, a council person has a role in
appropriating money for the costs of operating a municipal court and for the
compensation of the municipal judges. See Ohio Rev. Code Ann. §§
705.18, 1901.11, 1901.026 (Baldwin 1994). In carrying out the functions of
Opinion 96-6 3

local government, a city council person has a working relationship with
police officers and the law director which may involve some perception of
authority. Examples of these relationships are discussed within this
opinion.

With this background, the Board sets forth several disciplinary rules and an
ethical consideration from the Ohio Code of Professional Responsibility that
are pertinent to the questions raised.

  DR 8-101(A)(2) A lawyer who holds public office shall not:
  Use his [her] public position to influence, or attempt to
  influence, a tribunal to act in favor of himself [herself] or of a
  client.

  Canon 9 A Lawyer Should Avoid Even the Appearance of
  Professional Impropriety.

  DR 9-101(B) A lawyer shall not accept private employment in
  a matter in which he [she] had substantial responsibility while
  he [she] was a public employee.

  DR 9-101(C) A lawyer shall not state or imply that he [she] is
  able to influence improperly or upon irrelevant grounds any
  tribunal, legislative body, or public official.

  EC 8-8 Lawyers often serve as legislators or as holders of other
  public offices. This is highly desirable, as lawyers are uniquely
  qualified to make significant contributions to the improvement
  of the legal system. A lawyer who is a public officer, whether
  full or part-time, should not engage in activities in which his
  [her] personal or professional interests are or foreseeably may
  be in conflict with his [her] official duties.

Question One

  Is it proper for a lawyer to represent clients in civil matters in a
  municipal court while serving as a city council person for the
  municipality?

Opinion 96-6 4

A threshold concern is that a lawyer who is a city council person has public
responsibilities as to the appropriation of funds to operate a municipal court
and to compensate the municipal judges. Does this serve as a bar under the
Ohio Code of Professional Responsibility to the lawyer’s appearance in a
municipal court? The Board finds no basis within the Code for such an
absolute prohibition. The judicial branch of government is independent of
the legislative branch of government. Judges are bound to maintain this
independence through the Code of Judicial Conduct. The act of
appropriating money for the courts is not an act of destroying or influencing
the independence of the judiciary. If it were, there could be no independent
judiciary in our state or in a federal constitutional scheme of government.
Thus, the Board rejects this concern and finding no rule within the Ohio
Code of Professional Responsibility to justify an absolute bar to a lawyer’s
appearance in a municipal court when the lawyer is a city council person
with public responsibilities as to appropriation of operating funds to a
municipal court and compensation to municipal judges, the Board looks to
other concerns.

There are rules within the Ohio Code of Professional Responsibility that
would prohibit or limit certain representations. A lawyer who is a city
council person would be prohibited under DR 9-101(B) from accepting
private employment in any matter in which he or she had substantial
responsibility as a city council member. A lawyer who is a city council
person would be prohibited under DR 9-101(C) from stating or implying
that he or she could influence improperly or upon irrelevant grounds a
tribunal. A lawyer who is a city council person would be prohibited under
DR 8-101(A)(2) from using the public position to influence a tribunal to act
in favor of the attorney or the client. It would be particularly offensive for a
lawyer through any words or conduct to suggest that a legal matter for
which the attorney provides representation could be influenced by the
attorney’s act of appropriating operating expenses for a court or
compensation for the judges. A lawyer who is city council person would be
prohibited under Canon 9 from representing a client in a civil matter adverse
to the municipality or the officials or employees of the municipality since it
would create an appearance of impropriety. The aspirational advice within
EC 8-8 supports these restrictions.
Opinion 96-6 5

Ethics committees in other states advise that a lawyer who is a council
person should be prohibited from representing clients in certain matters.
See Ethics Advisory Panel, Rhode Island SupCt, Op. 93-82 (1993) (suits
against a mayor, treasurer, and council); Connecticut Bar Ass’n, Op. 91-17
(1991) (personal injury suit against town) Connecticut Bar Ass’n, Op. 37
(1985) (representation against the municipality or before any municipal
board, commission, authority, or agency); Advisory Comm. on Professional
Ethics, SupCt New Jersey Op. 538 (1984) (representation of builder in
matters involving the city); State Bar of Michigan, Op. RI-126 (1992) (suits
adverse to city housing authority); State Bar Of California, Op. 1981-63
(1981) (suits against city); State Bar of Arizona, Op. 82-14 (1982) (suits in
which city is defendant); New Hampshire Bar Ass’n, Op. 1988-9/12 (1989)
(representation before city land use board or in actions against city).

This Board agrees that certain restrictions are required. It is this Board’s
view that it is proper under the Ohio Code of Professional Responsibility for
a lawyer to represent clients in civil matters in a municipal court while
serving as a city council person for the municipality if certain restrictions
are heeded. The lawyer may not accept private employment in a matter in
which he or she has or had substantial responsibility as a city council
person. The lawyer may not state or imply that he or she can influence
improperly or upon irrelevant grounds a tribunal. The lawyer may not use
his or her public position as council person to influence a tribunal to act in
favor of a client or in favor of himself or herself. The lawyer may not
accept private employment in matters adverse to the municipality, the
officials, or the employees of the municipality.

Question Two

  Is it proper for a lawyer to undertake private or court appointed
  criminal defense representation in a municipal court while
  serving as a city council person for the municipality?

Ethics committees in other states prohibit or limit the representation of
criminal defendants by lawyers who serve on city council. See e.g., State
Bar of Texas, Op. 497 (1994); State Bar of Arizona, Op. 93-07 (1993); Bar
Ass’n of Nassau County, Op. 93-20 (1993);Alabama State Bar, Op. RO 90-
54 (1990); Bd of Overseers of the Bar of Maine, Op. 45 (1983); South
Opinion 96-6 6

Carolina Bar, Op. 82-11 (1982); But cf, New Hampshire Bar Ass’n, Op.
1992-93/2 1992 (attorney on city council may represent criminal defendants
prosecuted by the city and in which city police are officers). Canon 9
impropriety is often cited as a basis for the restrictions. Other rules such as
DR 5-101(interests of lawyer impairing independent judgment), DR 5-105
(interests of client impairing independent judgment), and EC 8-8 (personal
or professional interests in conflict with official duties) are sometimes cited.

In this Board’s view, a lawyer should not undertake private or court
appointed criminal defense representation in a municipal court while
serving as a city council person for the municipality because it creates an
appearance of impropriety and may appear to place personal or professional
interests in conflict with official duties. Such representation is particularly
inappropriate when the criminal defendant has been investigated or arrested
by a police officer of the city where the attorney serves as council person
and when the criminal defendant is being prosecuted by the city’s law
director.

Albeit, in a statutory form of government under Chapter 731 of the Ohio
Revised Code the legislative authority has legislative power only, does not
perform administrative duties, and does not appoint or confirm any officer
or employee of city government except of its own body. See Ohio Rev.
Code Ann. § 731.05 (Baldwin 1994). City council does not have
management or control over the police department. The mayor appoints a
director of public safety to serve as executive head of the police department.
See Ohio Rev. Code Ann. §§ 737.01, 737.02, 737.05 and 737.06, 737.12
(Baldwin 1994). Nevertheless, city council does work collaboratively with
the mayor and the police department in administering local government.
City council does by ordinance or resolution determine the number of
officers, clerks and employees in each department of the city government
including the police department and fixes by ordinance or resolution their
salaries and compensation. See Ohio Rev. Code Ann. §§ 731.08, 737.05
(Baldwin 1994).

City council also has a relationship with the city law director. The city law
director is an elected position. See Ohio Rev. Code Ann. § 733.49 (Baldwin
1994). The city law director serves as legal counsel and attorney to the
directors and officers of the municipal corporation. See Ohio Rev. Code
Opinion 96-6 7

Ann. § 733.51 (Baldwin 1994). The city law director is prosecuting
attorney of the mayor’s court and when required to do so by resolution of
the legislative authority of the city prosecutes or defends on behalf of the
city, all complaints, suits, and controversies in which the city is a party, and
such other suits, matters, and controversies as he or she is, by resolution or
ordinance, directed to prosecute. See Ohio Rev. Code Ann. § 733.52,
733.53 (Baldwin 1994). When an officer of a city or the legislative
authority of the city has doubts concerning the law in any matter in an
official capacity, and desires the opinion of the law director, the director
replies to such an inquiry. See Ohio Rev. Code Ann. § 733.54 (Baldwin
1994).

It is this Board’s view that when a council person is part of the legislative
authority of a municipality and the police officers and law director are
employees of the municipality, there exists at least some perceived or actual
authority and oversight giving rise to an appearance of impropriety. This
appearance of impropriety exists regardless of whether a council person has
any actual authority or supervision as to the employment or performance of
the police officers or the law director of the city. Thus, the Board advises
that it is improper under the Ohio Code of Professional Responsibility for a
lawyer to represent, privately or by court appointment, criminal defendants
in municipal court while serving as a city council person for the
municipality.

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.