Can a lawyer whose law partner is a city law director represent criminal defendants?

Currency note

The Ohio Board of Professional Conduct flagged this opinion as Modified by Opinion 2008-6, issued December 5, 2008. Opinion 2008-6 carved out city law directors and village solicitors who have no legal duty to prosecute state-law violations, and clarified that whether a firm colleague may serve as appointed counsel or public defender turns on R.C. 120.39, which is outside the Board's advisory authority. The opinion errata also notes that references on pages 5 and 6 to "Rule 1.11(c)" should read "Rule 1.11(d)." Read this page together with Opinion 2008-6, and treat it as historical context rather than current guidance. Verify against current rules and the modifying opinion before relying on any specific point.

Plain-English summary

The Board addressed whether a lawyer associated in a law firm with an assistant city law director may represent criminal defendants. It first reviewed the legal (non-ethics) restrictions: by statute a city law director is a prosecutor in municipal court (R.C. 705.11, 1901.34) and prosecutes cases in which the city is a party (R.C. 733.53), and Ohio precedent and Attorney General opinions hold that a city law director or assistant may not represent defendants in criminal cases in which the State of Ohio is plaintiff (citing, among others, Cain v. Calhoun and several O.A.G. opinions), while R.C. 120.39(A) bars a partner or employee of a city law director from serving as appointed counsel, public defender, or co-counsel to a public defender.

Turning to the Ohio Rules of Professional Conduct, the Board concluded that a city law director or assistant is prohibited under Rule 1.7(a)(1) from representing criminal defendants where the state is plaintiff, because the representation is directly adverse to the state and cannot be waived: Rule 1.7(c)(1) does not permit a representation prohibited by law. The Board further concluded that a lawyer may not defend a criminal case prosecuted by another lawyer in the same firm, because serving as both prosecutor and defense counsel in the same proceeding is conduct prejudicial to the administration of justice under Rule 8.4(d).

On imputation to firm colleagues for cases outside the director's jurisdiction, the Board concluded that the general imputation rule (Rule 1.10(a)) does not control, because Rule 1.10(f) directs that disqualification of lawyers in a firm with current or former government lawyers is governed by Rule 1.11. The Board reasoned that Rule 1.11(c), which addresses current government lawyers, contains no directive imputing the current government lawyer's disqualification to the firm. The Board therefore concluded that a firm colleague of a city law director may be privately retained to defend criminal cases in which the state is plaintiff if the proceeding is outside the director's jurisdiction, while still being barred by R.C. 120.39 from serving as appointed counsel, public defender, or co-counsel to a public defender, and (to be consistent with Rule 8.4(d)) declining to do so. In reaching these conclusions the Board departed in two respects from its prior Opinion 88-008 under the superseded Code of Professional Responsibility.

Common questions

Q: Can a part-time city law director also defend criminal cases?

A: The opinion concluded a city law director or assistant could not represent criminal defendants in proceedings in which the state is the plaintiff, because the representation is directly adverse to the state and is prohibited by law, making it non-waivable under Rule 1.7(c)(1).

Q: My law partner is the city law director. Can I defend a criminal case?

A: The opinion concluded you could not defend a case prosecuted by your partner (that would be conduct prejudicial to the administration of justice under Rule 8.4(d)), but you could be privately retained in a state-law criminal case outside the director's jurisdiction, because the Board read Rule 1.11 as not imputing a current government lawyer's conflict to the firm. Note that Opinion 2008-6 later modified this opinion.

Q: Can a city law director's partner take court appointments or serve as a public defender?

A: The opinion concluded a firm member of a city law director may not serve as court-appointed counsel, a public defender, or co-counsel to a public defender, citing R.C. 120.39(A). Opinion 2008-6 later clarified that this question turns on R.C. 120.39, which is outside the Board's advisory authority.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 1.7 (current-client conflicts and the non-waivable category in Rule 1.7(c)(1) for representations prohibited by law), Rule 8.4(d) (conduct prejudicial to the administration of justice), and the imputation framework of Rule 1.10(a) and (f) together with Rule 1.11 (current and former government lawyers) (Model Rules 1.7, 8.4, 1.10, 1.11). It applies that framework against the Ohio statutes defining a city law director's prosecutorial duties and the appointment restriction in R.C. 120.39.

Citations and references

Rules of Professional Conduct:

• Ohio Prof. Cond. R. 1.7(a)(1), (c)(1); R. 8.4(d); R. 1.10(a), (f); R. 1.11(b), (c)/(d) (Model Rules 1.7, 8.4, 1.10, 1.11)

Statutes:

• Ohio Rev. Code 705.11, 733.51-733.58, 733.62, 1901.34, 309.08 (city law director prosecutorial duties)
• Ohio Rev. Code 120.39(A) (appointment of partners or employees of a city law director)

Cases:

• Cain v. Calhoun (1979), 61 Ohio App. 2d 240, city solicitors may not be appointed to represent indigent criminal defendants

Other opinions cited:

• O.A.G. Ops. 89-023, 79-100, 78-026, 71-050, 67-112, 66-159 (incompatibility of prosecutorial office and criminal defense)
• Ohio BPC Op. 88-008 (departed from in two respects)

See also

• Ohio BPC Op. 2008-006: Modification of Opinion 2008-5 on City Law Directors
• Ohio BPC Op. 2007-004: City Law Director's Conflicts of Interest
• Ohio BPC Op. 1988-008: Part-Time Prosecutors and Criminal Defense

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_08-005.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
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us

                                   OFFICE OF SECRETARY


                               OPINION 2008-5
                            Issued August 15, 2008

[Modified-by Opinion 2008-6 on Dec. 5, 2008. Also, note the errata in Opinion 2008-5
where the references on pages 5 and 6 to Rule 1.11(c) should be to Rule 1.11(d).]

SYLLABUS: A city director of law or an assistant city director of law is prohibited
from representing criminal defendants in proceedings in which the state is a
plaintiff. A lawyer associated in a law firm with a city director of law or an
assistant city director of law may not represent criminal defendants in a
proceeding prosecuted by the city director of law or the assistant city director of
law. A lawyer associated in a law firm with a city director of law or an assistant
city director of law may be privately retained to represent criminal defendants in a
proceeding in which the state of Ohio is plaintiff, if the proceeding is outside the
jurisdiction of the city director of law. A lawyer associated in a law firm with any
city director of law or an assistant city director of law may not serve as a court
appointed counsel, a public defender, or a co-counsel to a public defender.

OPINION: This opinion addresses a question regarding criminal defense
representation by a lawyer associated in a law firm with an assistant city director
of law.

  Is it proper for a lawyer associated in a law firm with an assistant
  city law director to represent criminal defendants?

This opinion advises upon the ethical restrictions under the Ohio Rules of
Professional Conduct, but begins by reviewing the legal restrictions on the
representation of criminal defendants by part-time city law directors and their
private law firms.

Legal Precedent

Ohio law establishes the powers and legal duties of a city director of law. These
powers and duties are set forth in Ohio Rev. Code Ann §§ 705.11, 733.51,
733.52, 733.53, 733.54, 733.55, 733.56, 733.57, 733.58, 733.62 (West 1994), §
1901.34 (West Supp. 2008), § 3313.35 (West 2005). [In charter cities which
exercise powers of self-government pursuant to Section 3, Art. XVIII of the Ohio
Constitution, legal duties will depend upon the charter.]
Op. 2008-5 2

The prosecutorial duties of a city law director are pertinent to this opinion.
Pursuant to R.C. 705.11, a city director of law is the prosecutor in any police or
municipal court. Pursuant to R.C. 733.51 and R.C. 733.52, a city director of law
is the prosecuting attorney of the mayor’s court and performs the same duties,
insofar as they are applicable to the city director of law, as required of the county
prosecuting attorney. Pursuant to R.C. 733.53, a city director of law prosecutes
or defends on behalf of the city, all complaints, suits, and controversies in which
the city is a party, and other suits, matters, and controversies as directed to
prosecute by resolution or ordinance. Pursuant to R.C. 1901.34(A), with
exceptions set forth in divisions (B) and (D) of 1901.34, a city director of law
prosecutes all cases brought before the municipal court for criminal offenses
occurring within the municipal corporation for which that person is the director of
law and prosecutes all criminal cases brought before the court arising in the
unincorporated areas with the territory of the municipal court. Pursuant to R.C.
1901.34(C), the city director of law performs the same duties, insofar as they are
applicable to the city director of law, as are required of the county prosecuting
attorney. Pursuant to R.C. 309.08, the county prosecuting attorney “shall
prosecute, on behalf of the state, all complaints, suits, and controversies in which
the state is a party.”

Because of the prosecutorial duties imposed by law, a city director of law is
prohibited from representing defendants in criminal proceedings in which the
State of Ohio is the plaintiff. See Cain v. Calhoun (1979), 61 Ohio App. 2d 240
holding that “[c]ity solicitors may not be appointed to represent indigent
defendants in criminal prosecutions.” See also Ohio Attorney General Opinions:
O.A.G. Op. 89-023 advising that “the positions of city director of law and
assistant public defender in a joint county public defender’s office are
incompatible”; OAG, Op. 67-112 advising that “[a] city solicitor [now city director
of law] may not represent defendants in criminal cases wherein the State of Ohio
is plaintiff”; O.A.G. Op. 66-159 advising that “[a] city solicitor [now city director of
law] may not represent defendants in a criminal case wherein the State of Ohio is
plaintiff” [even though the initial arrest and other preliminary stages were
conducted in an area outside of the territorial jurisdiction of the municipal court in
which such solicitor is employed]. See also, OAG Op. 71-050 noting that the
office of city solicitor [now city director of law] is almost identical to a prosecuting
attorney and advising that “[a]n assistant prosecuting attorney is not permitted to
represent clients in criminal proceedings either within or outside of the county in
which he is appointed.”

An assistant city director of law is also prohibited from representing defendants in
criminal proceeding in which the State of Ohio is the plaintiff. See O.A.G. Op.
89-023, footnote 1 citing O.A.G. Op. 79-100 advising that an assistant city
director of law is subject to the same limitations as a city law director and may
not hold any office that the city director of law may not hold. See also, OAG Op.
Op. 2008-5 3

71-050 noting that an assistant prosecutor is “for all practical purposes, the alter
ego of the prosecuting attorney.”

A law firm partner or associate of a city director of law is prohibited from
accepting court appointments to represent criminal defendants, from serving as a
public defender, or from serving as co-counsel with a public defender. R.C.
120.39(A) states: “Except as provided in division (B) of this section, counsel
appointed by the court, co-counsel appointed to assist the state public defender
or a county or joint county public defender, and any public defender, county
public defender, or joint county defender, or member of their offices, shall not be
a partner, or employee of any prosecuting attorney, city director of law, village
solicitor, or similar chief legal officer.” Ohio Rev. Code Ann. §120.39(A) (West
2002).

As evidenced by R.C. 120.39(A), the Ohio legislature decided to restrict counsel
appointed by the court, public defenders, and co-counsel appointed to assist a
public defender from being a partner or employee of any prosecuting attorney,
city director of law, village solicitor, or similar chief legal officer. The Ohio
Attorney General advised that the purpose of R.C. 120.39(A) is to prevent
conflicts from occurring when an attorney represents the state and defendants in
original prosecutions. See O.A.G. 89-023, O.A.G. 78-026.

Thus, under longstanding legal precedent in Ohio, the conflicts of interest arising
from statutory duties to the state have prohibited part-time city law directors and
their assistants from representing criminal defendants and have restricted
lawyers in the private law firm of a city director of law from accepting court
appointments of criminal defendants or from serving as a public defender or as
co-counsel to a public defender.

Ethical Restrictions under the Ohio Rules of Professional Conduct

Under the ethical rules, the ability of city directors of law, assistant city directors
of law, and their private law firms to represent private clients in criminal defense
matters and to accept court appointments of criminal defendants is also
restricted, as described below, due to conflicts of interest in prosecutorial duties
owed to the state and criminal defense duties owed to a defendant.

Rule 1.7 is the general rule that governs conflicts of interest of current clients.

   RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

   (a) A lawyer’s acceptance or continuation of representation of a
   client creates a conflict of interest if either of the following applies:

Op. 2008-5 4

          (1) the representation of that client will be directly adverse to
          another current client;

          (2) there is a substantial risk that the lawyer’s ability to
          consider, recommend, or carry out an appropriate course of
          action for that client will be materially limited by the lawyer’s
          responsibilities to another client, a former client, or a third
          person or by the lawyer’s own personal interests.

   (b) A lawyer shall not accept or continue the representation of a
   client if a conflict of interest would be created pursuant to division
   (a) of this rule, unless all of the following apply:

          (1) the lawyer will be able to provide competent and diligent
          representation to each affected client;

          (2) each affected client gives informed consent, confirmed in
          writing;

          (3) the representation is not precluded by division (c) of this
          rule.

   (c) Even if each affected client consents, the lawyer shall not
   accept or continue the representation if either of the following
   applies:

          (1) the representation is prohibited by law;

          (2) the representation would involve the assertion of a claim
          by one client against another client represented by the
          lawyer in the same proceeding.

Under the ethical rules, a city director of law or an assistant city director of law is
prohibited from representing criminal defendants in proceedings in which the
state is a plaintiff because the representation is directly adverse to the state
which is a conflict of interest under Rule 1.7(a)(1) that cannot be waived under
Rule 1.7(b) because, even with client consent, Rule 1.7(c)(1) does not permit a
representation prohibited by law, and as already discussed, legal precedent in
Ohio prohibits such representation.

Imputation of conflict of interest

A lawyer is prohibited from representing a criminal defendant in a proceeding
prosecuted by another lawyer in the same law firm because such conduct is
prejudicial to the administration of justice in violation of Rule 8.4(d). No one
Op. 2008-5 5

would have any confidence in the justice system if lawyers who are associated in
the same law firm were permitted to serve as the prosecutor and the defense
counsel in the same proceeding.

A more difficult issue is whether lawyers associated in a law firm with a city
director of law or an assistant city director of law may represent criminal
defendants in proceedings that are outside the jurisdiction of the city director of
law.

To determine whether a conflict of interest of a city director of law or an assistant
city director of law is imputed to law firm partners or associates, a lawyer must
look at several rules.

       RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST:
                        GENERAL RULE

   (a) While lawyers are associated in a firm, none of them shall
   represent a client when the lawyer knows or reasonably should
   know that any one of them practicing alone would be prohibited
   from doing so by Rule 1.7 or 1.9, unless the prohibition is based on
   a personal interest of the prohibited lawyer and does not present a
   significant risk of materially limiting the representation of the client
   by the remaining lawyers in the firm.

   (f) The disqualification of lawyers associated in a firm with former or
   current government lawyers is governed by Rule 1.11.

The general rule of imputation, Rule 1.10(a) imputes a prohibited conflict of
interest under Rule 1.7 (or Rule 1.9) to lawyers associated in a law firm unless
the conflict of interest is based on a personal interest of the prohibited lawyer and
does not present a significant risk of materially limiting the representation of the
client by the remaining lawyers in the firm.

But, the general rule of imputation, Rule 1.10(a) does not apply to lawyers
associated in a law firm with former or current government lawyers. Rule 1.10(f)
instructs that “[t]he disqualification of lawyers associated in a firm with former or
current government lawyers is governed by Rule 1.11.” The application of Rule
1.11 requires a close examination of the rule. Rule 1.11(b) applies to former
government lawyers. Rule 1.11(b) explicitly imputes the disqualification of a
former government lawyer to lawyers in a law firm. Rule 1.11(c) applies to
current government lawyers. No mention is made anywhere in Rule 1.11(c) of
imputing the disqualification of a current government lawyer to the lawyers
associated in a law firm with the current government attorney.
Op. 2008-5 6

In the absence of a directive in Rule 1.11(c) for imputing the disqualification of a
current government lawyer to the lawyers associated in the law firm, it is the
Board’s view that the conflict of interest of a city law director or an assistant city
director of law in representing criminal defendants is not directly imputed by Rule
1.11(c) to law firm partners or associates who wish to privately represent criminal
defendants outside the jurisdiction of the city law director.

Thus, a lawyer is prohibited from representing a criminal defendant in a
proceeding prosecuted by another lawyer associated in the same law firm, but it
is not unethical for a lawyer who is associated in a law firm with a city director of
law or an assistant city director of law to privately represent a criminal defendant
in a proceeding outside the jurisdiction of the city director of law. Further, a
lawyer must abide by R.C. 120.39 which prohibits a lawyer associated in a law
firm with any city director of law from serving as court appointed counsel, a public
defender, or a co-counsel to a public defender. And, to be consistent with the
ethical duty to avoid conduct prejudicial to the administration of justice, a lawyer
who is associated in a law firm with an assistant city director of law should not
serve as court appointed counsel, a public defender, or as co-counsel to a public
defender.

In summary, a lawyer associated in a law firm with a city director of law or an
assistant city director of law may privately represent criminal defendants in a
proceeding in which the state of Ohio is plaintiff, if the proceeding is outside the
jurisdiction of the city director of law. A lawyer associated in a law firm with any
city director of law or an assistant city director of law may not represent criminal
defendants in a proceeding prosecuted by the city director of law or the assistant
city director of law, and may not serve as a court appointed counsel, a public
defender, or a co-counsel to a public defender.

Past Board Opinion 88-008

With this opinion, the Board departs in two respects from prior Op. 88-008
interpreting the former Ohio Code of Professional Responsibility which is
superseded by the Ohio Rules of Professional Conduct, effective February 1,
2007.

First, Op. 88-008 permitted narrow circumstances in which a municipal
prosecutor could represent criminal defendants. Such exception was based
upon several older ABA opinions, ABA Informal Op. 1045 (1968) and Informal
Op. 1285 (1974). Such exception does not seem consistent with the thrust of
eliminating inherent conflict of interest of lawyer that occurs when a lawyer with
prosecutorial duties represents criminal defendants adverse to the state of Ohio.
Such exception does not contribute to consistency or clarity for city directors of
law and their assistants who practice law in association with other attorneys.
Op. 2008-5 7

Second, Op. 88-008 interpreting DR 5-105 advised that “[m]embers of a part-time
prosecuting attorney’s law office may not accept employment that the prosecutor
is precluded from accepting.” As addressed above Rule 1.11(c) does not directly
impute disqualification of a conflict of interest of a current government attorney to
other attorneys associated in a law firm with the government attorney.

Conclusion

The Board advises as follows. A city director of law or an assistant city director
of law is prohibited from representing criminal defendants in proceedings in
which the state is a plaintiff. A lawyer associated in a law firm with a city director
of law or an assistant city director of law may not represent criminal defendants
in a proceeding prosecuted by the city director of law or the assistant city director
of law. A lawyer associated in a law firm with a city director of law or an assistant
city director of law may be privately retained to represent criminal defendants in a
proceeding in which the state of Ohio is plaintiff, if the proceeding is outside the
jurisdiction of the city director of law. A lawyer associated in a law firm with any
city director of law or an assistant city director of law may not serve as a court
appointed counsel, a public defender, or a co-counsel to a public defender.

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 Ohio Rules of Professional Conduct,
the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.