Can a city law director who has no duty to prosecute state-law crimes still defend criminal cases?

Plain-English summary

This opinion reconsiders and modifies Opinion 2008-5, which had stated flatly that a city law director or assistant may not represent criminal defendants in proceedings in which the state is plaintiff. The Board noted that, in Ohio, some city law directors have no legal duty to prosecute criminal violations of state law: R.C. 1901.34(B) assigns that duty to the county prosecutor in nine named counties (and, for unincorporated areas, in several others), and R.C. 1901.34(D) lets county prosecutors agree to handle municipal prosecutions. For those city law directors, the flat prohibition needed qualification.

Drawing on its earlier Opinion 88-008, which had concurred in ABA Informal Opinions 1045 (1968) and 1285 (1974), the Board modified its advice. A city law director or assistant city law director who has no legal duty to represent the State of Ohio may represent criminal defendants provided that (1) no city police officers from the city are involved, (2) the criminal charges are based solely on alleged violations of state law, and (3) the city is not otherwise directly or indirectly involved or affected. Although Opinion 2008-5 had not addressed village solicitors, the Board added that a village solicitor with no legal duty to represent the state may represent criminal defendants under similar conditions.

On the second question, the Board clarified that its earlier statement about firm colleagues serving as appointed counsel, public defender, or co-counsel was a reference to R.C. 120.39(A), and that appointment of a partner or employee of a village solicitor is subject to R.C. 120.39(A) and (B). The Board concluded that advice on the application of R.C. 120.39 is outside its advisory authority.

In practice

The opinion holds that, under the Ohio conflict rules as they stood at the time of the opinion, the bar on a city law director defending criminal cases applies only where the director actually has a duty to represent the state; a city law director, assistant, or village solicitor with no such duty may defend criminal cases that meet the opinion's three conditions (no city police involved, charges based solely on state-law violations, and the city not otherwise involved or affected). Per the opinion, the question whether a firm colleague may serve as appointed counsel or public defender is governed by R.C. 120.39, a statute the Board declined to interpret because it falls outside the Board's advisory authority. This opinion modifies, and should be read with, Opinion 2008-5.

Common questions

Q: Does Opinion 2008-5 ban every city law director from defending criminal cases?

A: No. This opinion modified 2008-5 to clarify that the bar applies to directors who have a legal duty to prosecute state-law violations; a director with no such duty may defend criminal cases under the stated conditions.

Q: What conditions must be met for such a city law director to defend a criminal case?

A: The opinion set three conditions: no city police officers from the city are involved, the charges are based solely on alleged violations of state law, and the city is not otherwise directly or indirectly involved or affected.

Q: Does this apply to village solicitors too?

A: Yes. The opinion extended the same approach to a village solicitor who has no legal duty to represent the state.

Q: Did the Board decide whether a director's partner can take court appointments?

A: No. The opinion concluded that question is governed by R.C. 120.39 (and, for village solicitors, R.C. 120.39(A) and (B)), and that interpreting that statute is outside the Board's advisory authority.

Background and rules framework

The opinion revisits the conflict analysis of Opinion 2008-5 under Ohio Prof. Cond. R. 1.7 and the government-lawyer imputation framework of Rule 1.11 (Model Rules 1.7, 1.11), but resolves the modification primarily by reference to the statutory allocation of prosecutorial duties in R.C. 1901.34 and the appointment restriction in R.C. 120.39, the latter of which the Board treats as beyond its advisory authority.

Citations and references

Rules of Professional Conduct:

• Ohio Prof. Cond. R. 1.7; R. 1.11 (Model Rules 1.7, 1.11)

Statutes:

• Ohio Rev. Code 1901.34(A), (B), (D) (allocation of prosecutorial duties among city law directors and county prosecutors)
• Ohio Rev. Code 120.39(A), (B) (appointment of partners or employees of a city law director or village solicitor)

Other opinions cited:

• Ohio BPC Op. 88-008 (concurring in the ABA informal opinions below)
• ABA Informal Op. 1045 (1968) and Informal Op. 1285 (1974): city/municipal attorneys defending criminal cases under limited conditions

See also

• Ohio BPC Op. 2008-005: City Law Director's Firm and Criminal Defense
• 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_08-006.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
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 2008-6
                           Issued December 5, 2008

SYLLABUS: Opinion 2008-5 is modified by this opinion in the following manner.
First, a city director of law or assistant city director of law who has no legal duty
to represent the state of Ohio may represent criminal defendants provided that:
1) no city police officers from the city are involved; 2) the criminal charges are
based solely on alleged violations of state law, and 3) the city is not otherwise
directly or indirectly involved or affected. Although Opinion 2008-5 did not
address representation of criminal defendants by village solicitors, the Board
takes this opportunity to advise that a village solicitor who has no legal duty to
represent the state of Ohio may represent criminal defendants under similar
conditions as set forth above. Second, whether a lawyer associated in a law firm
with any city director of law or an assistant city director of law may serve as a
court appointed counsel, a public defender, or a co-counsel to a public defender
is subject to R.C. 120.39(A). Appointment of a partner or employee of a village
solicitor is subject to R.C. 120.39(A) and (B). Advice as to the application of R.C.
120.39 is outside this Board advisory authority.

OPINION: This opinion addresses questions regarding the representation of
criminal defendants by city directors of law who do not have a legal duty to
prosecute violations of state law, and service as court appointed counsel. The
opinion reconsiders and modifies Opinion 2008-5.

   Does Opinion 2008-5 prohibit the representation of criminal
   defendants by city directors of law who do not have a legal duty to
   prosecute violations of state law?

   Does Opinion 2008-5 restrict a lawyer associated in a law firm with
   any city director of law or an assistant director of law from serving
   as a court appointed counsel, a public defender, or a co-counsel to
   a public defender?

Op. 2008-6 2

Question One

In Opinion 2008-5, the Board advised that: “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.”

In Ohio, some city directors of law do not have a legal duty to prosecute criminal
violations of state law. Therefore, the proper application of Opinion 2008-5
requires further consideration by the Board of Commissioners on Grievances and
Discipline.

Pursuant to R.C. 1901.34(A), a city director of law for each municipal corporation
within the territory of a municipal court shall prosecute all cases brought before
the municipal court for criminal offenses occurring within the municipal
corporation for which that person is the city director of law, except as provided for
in R.C. 1901.34(B) and (D). Also pursuant to R.C. 1901.34(A), a city director of
law shall prosecute all criminal cases brought before the court arising in the
unincorporated areas within the territory of the municipal court, except as
provided for in R.C. 1901.34(B).

R.C. 1901.34(B) provides that in nine Ohio counties (Auglaize, Brown, Clermont,
Hocking, Holmes, Jackson, Morrow, Ottawa, and Portage), the county prosecutor
is required to prosecute all violations of state law arising in the county. R.C.
1901.34(B) also provides that in six Ohio counties (Carrol, Crawford, Hamilton,
Madison, Wayne, and Erie) the county prosecutor is required to prosecute all
violations of state law arising within the unincorporated areas of their respective
counties. R.C. 1901.34(B) further provides that the “Columbiana county
prosecuting attorney shall prosecute in the Columbiana county municipal court all
violations of state law arising in the county, except for violations arising in the
municipal corporation of East Liverpool, Liverpool township, or St Clair township.
The Darke county prosecuting attorney shall prosecute in the Darke County
municipal court all violations of state law arising in the county, except for
violations of state law arising in the municipal corporation of Greenville and
violations of state law arising in the village of Versailles. The Greene county
board of county commissioners may provide for the prosecution of all violations
of state law arising within the territorial jurisdiction of any municipal court located
in Greene County.” Ohio Rev. Code Ann. §1901.34(B) (West Supp. 2008).

R.C. 1901.34(D) provides that in any county other than the nine identified
(Auglaize, Brown, Clermont, Hocking, Holmes, Jackson, Morrow, Ottawa, and
Portage), the county prosecutor is permitted to enter into an agreement with a
municipal corporation in the county to prosecute all the criminal cases brought
before the municipal court that has territorial jurisdiction over the municipal
corporation for the criminal offenses occurring within the municipal corporation.
Op. 2008-6 3

A further provision in R.C. 1901.34(D) is that in the nine counties identified, the
county prosecutor is also permitted to enter an agreement with a municipal
corporation in the county to prosecute all cases brought before the county
municipal court for violations of the ordinances of the municipal corporation or for
criminal offenses other than violations of state law occurring within the municipal
corporation.

In Op. 88-008, the Board advised: “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. There are
very limited circumstances, which are set forth in this opinion, when a part time
city or municipal prosecutor may represent criminal defendants in his or her
private practice.” In that opinion, the Board concurred with ABA Informal Op.
1045 (1968) allowing a city attorney to represent a criminal defendant in cases
not involving the city or its ordinances in limited circumstances: “(1) the
ordinance violations as to which the city attorney acts as prosecutor are of an
entirely different character from the criminal charges as to which he acts as
defense counsel, (2) the criminal charges as to which he acts as defense counsel
do not involve the city or its ordinances or officials, (3) the types of investigating
officers (city officials, law enforcement officers) involved in the prosecution and
defense matter are entirely different, (4) the city attorney does not represent city
residents as defense counsel in criminal matters, and (5) the city attorney's
conduct in that capacity has no impact outside of the city's own limited
jurisdiction.” In Op. 88-008, the Board also concurred with ABA Informal Op.
1285 (1974) allowing “municipal attorneys who only prosecute violations of
municipal ordinances to represent criminal defendants in situations where no
municipal police officers from the municipality are involved, the criminal charges
are based solely on alleged violations of state law, and the municipality is not
otherwise directly or indirectly involved or affected.”

Accordingly, a modification of Opinion 2008-5 is necessary, consistent with the
Board’s advice in Opinion 88-008 that concurred in the advice offered by the
ABA, Committee on Ethics and Professional Responsibility in Informal Op. 1045
(1968) and Informal Op. 1285 (1974).

The Board’s advice is modified as follows. A city director of law or assistant city
director of law who has no legal duty to represent the state of Ohio may
represent criminal defendants provided that: 1) no city police officers from the city
are involved; 2) the criminal charges are based solely on alleged violations of
state law, and 3) the city is not otherwise directly or indirectly involved or
affected. Although Opinion 2008-5 did not address representation of criminal
defendants by village solicitors, the Board takes this opportunity to advise that a
village solicitor who has no legal duty to represent the state of Ohio may
represent criminal defendants under similar conditions as set forth above.
Op. 2008-6 4

Question Two

In Opinion 2008-5, the Board stated: “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.” The
statement was a reference to the requirement of R.C. 120.39(A). R.C. 120.39(A)
states: “Except as provided in division (B) of this section [a narrow exception
applicable to village solicitors], 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). R.C. 120.39(B) states:
“A partner or employee of a village solicitor or of a law firm, legal professional
association, or legal clinic with which the village solicitor is affiliated may be
appointed by the court, assist a public defender, or serve as public defender in
any criminal proceedings in which the village solicitor is not acting as prosecuting
attorney.” Ohio Rev. Code Ann. §120.39(B) (West 2002).

Whether a lawyer associated in a law firm with any city director of law or an
assistant city director of law may serve as a court appointed counsel, a public
defender, or a co-counsel to a public defender is subject to R.C. 120.39(A).
Appointment of a partner or employee of a village solicitor is subject to R.C.
120.39(A) and (B). This Board does not have advisory authority over the
application of R.C. 120.39.

Conclusion to Question One and Two

In conclusion, the Board advises accordingly. Opinion 2008-5 is modified by this
opinion in the following manner. First, a city director of law or assistant city
director of law who has no legal duty to represent the state of Ohio may
represent criminal defendants provided that: 1) no city police officers from the city
are involved; 2) the criminal charges are based solely on alleged violations of
state law, and 3) the city is not otherwise directly or indirectly involved or
affected. Although Opinion 2008-5 did not address representation of criminal
defendants by village solicitors, the Board takes this opportunity to advise that a
village solicitor who has no legal duty to represent the state of Ohio may
represent criminal defendants under similar conditions as set forth above.
Second, whether a lawyer associated in a law firm with any city director of law or
an assistant city director of law may serve as a court appointed counsel, a public
defender, or a co-counsel to a public defender is subject to R.C. 120.39(A).
Appointment of a partner or employee of a village solicitor is subject to R.C.
120.39(A) and (B). Advice as to the application of R.C. 120.39 is outside this
Board advisory authority.
Op. 2008-6 5

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.