Can a lawyer who represents criminal defendants also serve as a special prosecutor in the same court?

Currency note

This opinion was issued in 2003, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007). The Board flagged it as a "CPR Opinion" because it interprets the former Ohio Code of Professional Responsibility, since superseded. The conflict provisions discussed here are now addressed by Ohio Prof. Cond. R. 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Plain-English summary

The Board addressed whether an attorney who represents criminal defendants may also be appointed to serve as a special prosecutor in the same county, and even in the same court. The Board concluded that a judge may make such an appointment if it is only on an occasional basis and the appointee is competent to fill the special prosecutor position.

The opinion expressly modified earlier Opinion 94-6, which had advised that an attorney may not represent criminal defendants in a court on which he or she serves as special prosecutor. Under the revised view, an attorney may represent criminal defendants in a court where the attorney serves as a special prosecutor, again subject to the conditions that the special-prosecutor appointment be occasional and that the attorney be competent for it.

Common questions

Q: Can a criminal defense lawyer also be appointed special prosecutor in the same court?

A: Yes, within limits. The opinion concluded that this is permissible if the special-prosecutor appointment is only occasional and the lawyer is competent to serve.

Q: Does this change earlier Ohio guidance?

A: Yes. The opinion modified Opinion 94-6, which had barred representing criminal defendants in a court where the lawyer serves as special prosecutor.

Background and rules framework

The opinion addresses concurrent-role conflicts arising when one lawyer serves both as an occasional special prosecutor and as criminal defense counsel in the same court. The general concurrent-conflict standard is now found in Ohio Prof. Cond. R. 1.7 (Model Rule 1.7).

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility conflict provisions (DR 5-105, DR 9-101)
• Current analogue: Ohio Prof. Cond. R. 1.7 (Model Rule 1.7)

Other opinions cited:

• Ohio Op. 94-6: modified by this opinion

See also

• Ohio BPC Op. 1994-006: Criminal Defense Attorney Serving as Special County Prosecutor
• Ohio BPC Op. 1988-008: Part-Time Prosecutors and Criminal Defense
• Ohio BPC Op. 1988-015: Former Public Defender as Prosecutor or Special Prosecutor

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-03-007.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 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us

                                         OFFICE OF SECRETARY




                                     OPINION 2003-7
                                  Issued December 5, 2003

[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 judge may appoint an attorney to serve as a special prosecutor in the
same county (and even in the same court) in which the attorney represents criminal
defendants, if such appointment is only on an occasional basis and the appointee is
competent to fill the special prosecutor position.

This Opinion modifies the advice in Opinion 94-6 that an attorney may not represent
criminal defendants in a court on which he or she serves as special prosecutor. An
attorney may represent criminal defendants in a court on which he or she serves as
special prosecutor, if such appointment is only on an occasional basis and he or she is
competent to fill the special prosecutor position.

OPINION: This opinion addresses a question regarding attorneys representing criminal
defendants and serving as special prosecutors. In responding to the question, the Board
advises only as to ethical issues regarding the application of the Ohio Code of
Professional Responsibility. Advising as to legal issues regarding appointments of
special prosecutors is outside this Board’s advisory authority. See Gov.Bar R. V.§2(C).

    Is it proper for a judge to appoint an attorney to serve as a special
    prosecutor in the same county in which he or she represents criminal
    defendants?

Special prosecutors are unique, being neither an elected prosecutor nor an assistant
prosecutor. A special prosecutor stands in the place of the elected prosecutor, but only
for the particular matter to which he or she is appointed.

A judge may appoint an attorney to serve as a special prosecutor for any of the following
reasons:

    To assist the prosecuting attorney, the board [of county commissioners] or
    any other county officer in any matter of public business coming before
    such board or officer, and in the prosecution or defense of any action or
    proceeding in which such board or officer is a party or has an interest, in
    its official capacity. Ohio Rev Code Ann. §305.14(A) (West Supp 2003);

Op. 2003-7 2

   To perform the functions of the county prosecuting attorney when the
   office of the prosecuting attorney or the office of the attorney general is
   implicated in criminal activity investigated by an organized criminal task
   force. Ohio Rev Code Ann. §177.03 ((D)(2)(b) and (3) (West 2002);

   To act in the prosecutor’s place to bring and prosecute an action, when the
   office of prosecuting attorney is vacant, or the prosecuting attorney is
   absent, interested in the action in quo warranto, or disabled. Ohio Rev
   Code Ann. §2733.07 (West 1994);

   To assist the prosecuting attorney in the trial of a case pending in court
   when it is the court’s opinion that the public interest requires it. Ohio Rev
   Code Ann §2941.63 (West 1997).

Also, a Board of County Commissioners has authority to employ legal counsel, as
provided in Section 309.09 of the Revised Code, to represent it in public business before
such board and in prosecution or defense of any action or proceeding in which the board
is a party or has an interest in its official capacity. Ohio Rev.Code Ann. §305.14(B)
(West Supp. 2003).

Thus, like an elected prosecutor, the duties of a special prosecutor may involve the
prosecution of criminal defendants on behalf of the State of Ohio or, may involve
counseling, prosecuting, or defending county officers. Unlike elected and assistant
prosecutors, a special prosecutor’s duties are limited to a particular appointment, in a
particular matter, at a particular time.

Longstanding is the view that elected county prosecutors and assistant county prosecutors
must refrain from private representation of criminal defendants.

   A prosecuting attorney may not, after taking office, continue to represent a
   client in a case in which the interests of such client and of the county are
   adverse. Ohio Attorney General Opinion 584 (1923).

   An assistant prosecuting attorney is not permitted to represent clients in
   criminal proceedings either within or outside of the county in which he is
   appointed. Ohio Attorney General Opinion 71-050 (1971).

   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 Comm’rs on
   Grievances and Discipline, Op. 88-8 (1988).

As to special prosecutors, this Board has expressed a different view—that the Ohio Code
of Professional Responsibility is not an absolute bar to representing criminal defendants
and serving as a special prosecutor. In Opinion 94-6, the Board advised:

Op. 2003-7 3

   It is proper under Ohio’s Code of Professional Responsibility for an
   attorney who represents criminal defendants in private practice in a county
   to serve as a special county prosecutor in another county only under the
   following conditions: the attorney does not represent criminal defendants
   in the court in which he or she serves as special prosecutor; and the
   attorney accepts appointment only on an occasional or isolated basis.

Ohio SupCt, Bd Comm’rs on Grievances and Discipline, Op. 94-6 (1994).

The applicable rule within the Ohio Code of Professional Responsibility is DR 5-105.
Under 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).”

Under most circumstances, it is not likely that an attorney’s occasional appointed service
as a “special prosecutor” will adversely affect his or her professional judgment on behalf
of the criminal defendants he or she represents. Nor, is it likely that an attorney would
receive an appointment as a special prosecutor if the appointing judge thought it likely
that his or her representation of criminal defendants would affect his or her professional
judgment as a special prosecutor. (A judge is guided by Canon 3(C)(4) of the Ohio Code
of Judicial Conduct to not make unnecessary appointments, to avoid nepotism and
favoritism, and to exercise the power of appointment impartially and on the basis of
merit.)

A special prosecutor is a distinct type of prosecutor. A special prosecutor represents the
state for only a “moment in time” for only a “distinctive matter.” A special prosecutor is
an “outsider” to the prosecutor’s office and that is precisely why the special prosecutor is
appointed—an outsider is required. Because the appointment of an “outsider” is
required, it is inevitable that most special prosecutors are attorneys in the private practice
of law.

Because of the uniqueness of the role of a special prosecutor, the Board’s view is that the
Ohio Code of Professional Responsibility does not bar an attorney from serving as a
special prosecutor in the same county (and even in the same court) in which the attorney
represents criminal defendants.

Thus, the Board advises as follows. A judge may appoint an attorney to serve as a
special prosecutor in the same county (and even in the same court) in which the attorney
represents criminal defendants, if such appointment is only on an occasional basis and the
appointee is competent to fill the special prosecutor position.

This opinion modifies the advice in Opinion 94-6 that an attorney may not represent
criminal defendants in a court on which he or she serves as special prosecutor. An
attorney may represent criminal defendants in a court on which he or she serves as
special prosecutor, if such appointment is only on an occasional basis and he or she is
competent to fill the special prosecutor position.

Op. 2003-7 4

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.