Can a county prosecutor represent two county officials or entities at once when they disagree, or when one sues the other?

Plain-English summary

The Board addressed the conflict-of-interest duties of a county prosecuting attorney who, by statute, serves as legal adviser and litigator for many county officials, boards, and entities. The opinion is limited to the Board's application of the Ohio Rules of Professional Conduct and does not reach the Office of the Attorney General or Ohio Ethics Law (which the Ohio Ethics Commission addresses). The Board noted that a current government lawyer must comply with Rule 1.7 by way of Rule 1.11(d), and that the Rules give government lawyers some special latitude: Scope Comment [18] recognizes that government lawyers may sometimes represent multiple government agencies where a private lawyer could not, and Comment [2] to Rule 1.11 explains that a current government lawyer's conflict is not imputed to other government lawyers in the office (though screening is prudent).

On the first question (negotiating a contract or memorandum of understanding), the Board concluded the prosecutor must exercise professional judgment because not every disagreement among county clients is a conflict; clients may hold differing views without being directly adverse. A conflict arises under Rule 1.7(a)(1) when interests are directly adverse, or under Rule 1.7(a)(2) when there is a substantial risk that the prosecutor's representation of one client will be materially limited by responsibilities to another. Where a conflict exists, the prosecutor may proceed only if it can be cured under Rule 1.7(b) (competent and diligent representation, often through screened assistant prosecutors; informed written consent; and the matter not precluded by Rule 1.7(c)). The Board emphasized, citing Comments [25] and [38], that common representation is improper where contentious litigation or negotiation is imminent or where the parties' interests are fundamentally antagonistic, regardless of consent.

On the second question (one statutory client suing another), the Board concluded that Rule 1.7(c)(2) flatly prohibits the prosecutor from representing both sides of a claim by one client against another in the same proceeding, even through different assistant prosecutors, and (relying on its construction of "proceeding" in Op. 2007-4) that this reaches negotiations and mediation, not only matters before a tribunal. Because the prosecutor has a continuing relationship with each statutory client and cannot favor one over another, the Board concluded the prosecutor should withdraw from the matter and special counsel should be appointed.

In practice

The opinion holds that, under the Ohio conflict rules as they stood at the time of the opinion, a county prosecutor's representation of multiple statutory clients is governed by Rule 1.7 (applied through Rule 1.11(d)), with two key results. First, the prosecutor may represent multiple county clients in negotiating a contract or memorandum of understanding unless a Rule 1.7(a) conflict exists that cannot be cured under Rule 1.7(b), or a non-consentable conflict exists under Rule 1.7(c); per the opinion, a mere disagreement is not automatically a conflict, but fundamentally antagonistic interests or imminent contentious litigation make common representation improper regardless of consent. Second, where one statutory client asserts a claim against another in the same proceeding, the opinion treats the conflict as non-consentable under Rule 1.7(c)(2), reaching even different assistant prosecutors, so the office withdraws and special counsel is appointed. The opinion notes a current government lawyer's conflict is not imputed to other government lawyers in the office, though screening is prudent.

Common questions

Q: Can a county prosecutor advise two county boards on the same contract if they disagree?

A: The opinion concluded yes, unless the disagreement amounts to a Rule 1.7(a) conflict that cannot be cured under Rule 1.7(b); not every disagreement is a conflict.

Q: Can the prosecutor represent both county entities when one sues the other?

A: No. The opinion concluded Rule 1.7(c)(2) prohibits representing both sides of a claim in the same proceeding, even through different assistant prosecutors.

Q: Does using two different assistant prosecutors solve the problem?

A: The opinion concluded it can help cure a Rule 1.7(b) conflict (with screening and consent), but it does not cure a Rule 1.7(c) non-consentable conflict, such as one client suing another.

Q: What happens when the prosecutor can't represent both sides?

A: The opinion concluded the prosecutor should withdraw from that matter and special counsel should be appointed, because the prosecutor cannot choose one continuing statutory client over another.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 1.7 (current-client conflicts, including the directly-adverse and material-limitation conflicts of Rule 1.7(a), the Rule 1.7(b) cure conditions, and the non-consentable categories of Rule 1.7(c)) and Rule 1.11(d) (which requires a current government lawyer to comply with Rule 1.7) (Model Rules 1.7, 1.11). It relies on Scope Comment [18] and Comments [2], [8], [25], [37], and [38], and on the Board's construction of "proceeding" in Op. 2007-4, against the backdrop of the county prosecutor's statutory duties.

Citations and references

Rules of Professional Conduct:

• Ohio Prof. Cond. R. 1.7(a)-(c) and Comments [25], [37], [38]; R. 1.11(d) and Comments [1], [2]; Scope Comment [18] (Model Rules 1.7, 1.11)

Statutes:

• Ohio Rev. Code 309.06, 309.08, 309.09, 309.10, 309.12, 305.14 (county prosecutor's statutory duties and authority to appoint additional counsel)

Other opinions cited:

• ABA Formal Op. 97-405 (1997): identity of a government client for conflict purposes
• Ohio BPC Op. 2007-4: construction of "proceeding" under Rule 1.7(c)

See also

• Ohio BPC Op. 2007-004: City Law Director's Conflicts of Interest
• Ohio BPC Op. 2008-005: City Law Director's Firm and Criminal Defense
• Ohio BPC Op. 1993-010: Conflicts Between Divisions of a Legal Aid Society
• Ohio BPC Op. 1990-010: Child Support Enforcement Attorney, Client, and Conflicts

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_09-003.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 2009-3
                             Issued June 12, 2009

SYLLABUS: A county prosecuting attorney may represent multiple statutory
clients in the negotiation of a contract or a memorandum of understanding except
when there is a conflict of interest under Rule 1.7(a)(1) or (a)(2) that cannot be
ameliorated under Rule 1.7(b) or when there is a nonconsentable conflict of
interest under Rule 1.7(c)(1) or (c)(2). A conflict of interest arises under Rule
1.7(a)(1) when the clients’ interests are directly adverse. A conflict of interest
arises under Rule 1.7(b)(2) when there is a substantial risk that the county
prosecutor’s ability to represent one client will be materially limited by
responsibilities to the other client.

Not every disagreement among clients constitutes a conflict of interest. A county
prosecuting attorney must exercise professional judgment to decide whether a
Rule 1.7(a)(1) or (a)(2) conflict of interest exists and whether it may be
ameliorated by meeting the conditions set forth in Rule 1.7(b)(1) through (3).
Rule 1.7(b)(1) requires a prosecutor’s determination that the prosecutor’s office is
able to give competent and diligent representation to each affected client; Rule
1.7(b)(2) requires each affected client to give informed consent, confirmed in
writing; and Rule 1.7(b)(3) requires that the representation not be precluded by
Rule 1.7(c). Rule 1.7(c)(1) precludes, despite client consent, a representation
prohibited by law. Rule 1.7(c)(2) precludes, despite client consent, a
representation involving the assertion of a claim by one client against another
client represented by the lawyer in the same proceeding which includes a
negotiation or a mediation. Regardless of consent, multiple representations
should not be undertaken when two clients’ interests are fundamentally
antagonistic or when contentious litigation or contentious negotiations between
two clients are imminent or contemplated.

Whether representation of multiple statutory clients may be provided by different
assistant county prosecuting attorneys employed in the office of the county
prosecutor depends upon whether the conflict of interest is one that may be
ameliorated under Rule 1.7(b) or one that falls under Rule 1.7(c). For conflicts of
interest that may be ameliorated under Rule 1.7(b), representation by different
assistant county prosecuting attorneys is appropriate if the county prosecutor
determines that the conditions set forth in (b)(1) through (b)(3) are met. For
Op. 2009-3 2

conflicts of interest that fall under Rule 1.7(c), once a county prosecuting attorney
determines that a representation is prohibited by law or that a client has a claim
against another client in the same proceeding, the county prosecuting attorney
should not attempt to represent any of them, not even through different assistant
prosecuting attorneys employed in the office of the county prosecuting attorney.

A county prosecuting attorney is prohibited by Rule 1.7(c)(2) from representing
multiple statutory clients, such as two different public entities, in the filing of a
lawsuit by one of the clients asserting a claim against the other, even through
different assistant county prosecuting attorneys. When a controversy evolves
into a legal dispute that must be resolved through the filing of a lawsuit by one
county official or entity against the other, the county prosecutor should withdraw
in that matter from the representation of either client and special counsel should
be appointed.

OPINION: This opinion neither addresses nor applies to conflicts of interest
involving the Office of the Attorney General of Ohio. This opinion addresses
questions regarding the ethical duties of a county prosecuting attorney in
representation of multiple statutory clients in the same matter.

   1. Is it proper for a county prosecuting attorney to represent
      multiple statutory clients in the negotiation of a contract or a
      memorandum of understanding?

   2. Is it proper for a county prosecuting attorney to represent
      multiple statutory clients in the filing of a lawsuit by one of the
      clients against the other?

Duties of a county prosecuting attorney

As a lawyer, a county prosecuting attorney is subject to the Ohio Rules of
Professional Conduct, for which the Board of Commissioners on Grievances and
Discipline is the appropriate advisory body. As a government official, a county
prosecuting attorney is also subject to Ohio Ethics Law, for which the Ohio Ethics
Commission is the appropriate advisory body. This advisory opinion is limited to
the Board’s application of the Ohio Rules of Professional Conduct, pursuant to its
advisory authority under Gov.Bar R. V § 2 (C). A county prosecutor should also
consider the application of Ohio Ethics Law.

A county prosecuting attorney’s duties are prescribed by law. A county
prosecuting attorney may employ assistant county prosecutors to assist in the
performance of the prosecutor’s duties. Ohio Rev. Code Ann. § 309.06 (West
2005).

A county prosecuting attorney inquires into the commission of crimes within the
county and prosecutes on behalf of the state, all complaints, suits, and
Op. 2009-3 3

controversies in which the state is a party, except those required by law to be
prosecuted by a special prosecutor or the attorney general, and prosecutes other
suits, matters, and controversies that the prosecuting attorney is required to
prosecute within or outside the county. Ohio Rev. Code Ann. § 309.08(A) (West
Supp. 2009). The court of common pleas or the court of appeals, when in their
opinion public interest requires it, may appoint counsel to assist the prosecuting
attorney in the trial of a case. Ohio Rev. Code Ann. § 2941.63 (West 2006).

A county prosecuting attorney is the legal advisor of the county commissioners,
board of elections, and all other county officers and boards and they may require
written opinions or instructions from the prosecuting attorney in matters
connected with their official duties. Ohio Rev. Code Ann. § 309.09(A) (West
Supp. 2009).

A county prosecuting attorney prosecutes and defends all suits and actions
which a county officer or board directs or to which it is a party and no county
officer may employ any other counsel or attorney at the expense of the county,
except as provided for in R.C. 305.14. Ohio Rev. Code Ann. § 309.09(A) (West
Supp. 2009). For example, R.C. 305.14(A) provides that “[t]he court of common
pleas, upon application of the prosecuting attorney and the board of county
commissioners, may authorize the board to employ legal counsel to assist the
prosecuting attorney, the board, 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. § 304.14 (A) (West
Supp. 2005). See also Ohio Rev. Code Ann. (B), (C), (D) (West Supp. 2005).
And, R.C. 309.10 provides that certain county boards may employ other counsel
for legal representation. Ohio Rev. Code Ann. § 309.10 (West 2005).

A county prosecuting attorney is the legal adviser for all township officers,
boards, and commissions unless the township has adopted limited home rule
government and has not entered a contract to have the prosecuting attorney
serve as the township law director. When the township trustees find it advisable
or necessary to have additional legal counsel, they may so order. Ohio Rev.
Code Ann. § 309.09(B)(1) (West Supp. 2009).

A county prosecuting attorney is required, when informed of certain
circumstances, to take action to reclaim property money and property of a person
found dead upon whose estate no letters of administration have been issued.
Ohio Rev. Code Ann. § 309.17 (West 2005). And, a county prosecuting attorney
has duties to provide notice to a victim of a criminal’s escape. Ohio Rev. Code
Ann. § 309.18 (West 2005).

A county prosecuting attorney is required to make annual reports to the attorney
general, the board of county commissioners, and to the state fire marshall. Ohio
Rev. Code Ann.§ 309.15, 309.16 (West 2005). A county prosecuting attorney
Op. 2009-3 4

prepares the official bonds for all county officers. Ohio Rev. Code Ann. § 309.11
(West 2005).

In addition to these duties, a county prosecuting attorney may assume other
duties permitted by law. For example, a prosecuting attorney and a county
commissioner may contract with a board of park commissioners to provide legal
services to the park district. Ohio Rev. Code Ann. § 309.09(D) (West Supp.
2009). A county prosecuting attorney may be, with the approval of the board of
county commissioners, the legal adviser of a joint fire district, a joint ambulance
district, a joint emergency medical services district, or a fire and ambulance
district. Ohio Rev. Code Ann. § 309.09(E), (F), (G), (H) (West Supp. 2009).
Further, a county prosecuting attorney may bring civil actions in the name of the
state to protect public funds. Ohio Rev. Code Ann. § 309.12 (West 2005). A
county prosecuting attorney prosecutes wrongdoers who cut down timber on land
belonging to the state or a school district. Ohio Rev. Code Ann. § 309.14 (West
2005).

Inevitably, given these vast statutory duties to multiple county officials and
entities, a county prosecuting attorney will face concerns regarding conflicts of
interest. The requester of this opinion raises questions concerning
representation of multiple statutory clients in the negotiation of a contract or a
memorandum of understanding and representation of multiple statutory clients in
the filing of a lawsuit by one client against the other.

Rules governing conflicts of interest of a current government lawyer

Rule 1.11 and Rule 1.7 of the Ohio Rules of Professional Conduct are pertinent
to this opinion. Rule 1.11 is a special conflicts of interest rule for former and
current government lawyers. Rule 1.7 is a rule for all lawyers governing conflicts
of interest of current clients. A current government lawyer is required by Rule
1.11(d)(1) to comply with Rule 1.7, except as law may otherwise expressly
permit. As explained in Comment [1] to Rule 1.11, a lawyer who has served or
who is currently serving as a public officer or employee is subject to the
prohibition against concurrent conflicts of interest in Rule 1.7.

   Rule 1.11 SPECIAL CONFLICTS OF INTEREST FOR FORMER
   AND CURRENT GOVERNMENT OFFICERS AND EMPLOYERS

        (d)    Except as law may otherwise expressly permit, a
  lawyer currently serving as a public officer or employee shall
  comply with both of the following:

                (1)   Rules 1.7 [Conflicts of Interest:         Current
  Clients] and 1.9 [Conflicts of Interest: Former Clients];

                (2)    [Omitted].

Op. 2009-3 5

         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:

               (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.

Special consideration given to government lawyers

The Ohio Rules of Professional Conduct give government lawyers special
consideration as to conflicts of interest.

Rule 1.11(d) requires a current government lawyer to comply with Rule 1.7,
except as law may otherwise expressly permit.
Op. 2009-3 6

The Scope section of the Ohio Rules of Professional Conduct acknowledges
there may be circumstances in which a government lawyer may undertake a
representation of multiple parties where a private lawyer may not. Comment [18]
in the Scope section states: “Under various legal provisions, including
constitutional, statutory, and common law, the responsibilities of government
lawyers may include authority concerning legal matters that ordinarily reposes in
the client in private client-lawyer relationships. For example, a lawyer for a
government agency may have authority on behalf of the government to decide
upon settlement or whether to appeal from an adverse judgment. Such authority
in various respects is generally vested in the attorney general and the state’s
attorney in state government, and their federal counterparts, and the same may
be true of other government law officers. Also, lawyers under the supervision
of these officers may be authorized to represent several government
agencies in intragovernmental legal controversies in circumstances where
a private lawyer could not represent multiple private clients. These rules
do not abrogate any such authority.” [Emphasis added].

Rule 1.11 provides special consideration for government attorneys as to
imputation of conflicts of interest. Comment [2] to Rule 1.11 explains: “Because
of the special problems raised by imputation within a government agency,
division (d) does not impute the conflicts of a lawyer currently serving as
an officer or employee of the government to other associated government
officers or employees, although ordinarily it will be prudent to screen such
lawyers.” [Emphasis added].

Application of rules

Application of Rule 1.7 requires professional judgment. Disagreements are
bound to occur with a county, its officers, and its entities. But, not every
disagreement creates a conflict of interest for a county prosecuting attorney.

First, a county prosecuting attorney must determine whether there is a conflict of
interest under Rule 1.7. A determination of whether there is a conflict of interest
begins by a county prosecuting attorney examining the duties of the office and
the identity of the entities or officials to whom these duties are owed. For a
discussion of the identity of a government client for conflict of interest purposes
see ABA Formal Opinion 97-405 (1997).

Under Rule 1.7(a)(1) a conflict of interest exists if a county, its entities, or the
county officials are directly adverse to each other. Nevertheless, direct adversity
should not be equated with discussions in which there are differing opinions. A
county, its entities, or its officials may express different views without being
directly adverse to each other. Expression of different views while discussing an
issue or topic is part of the process of county government. Determination of a
direct adversity conflict of interest is fact and circumstance specific.
Op. 2009-3 7

Under Rule 1.7(a)(2), a conflict of interest exists if there is a substantial risk that
the ability of the county prosecuting attorney to consider, recommend, or carry
out the representation of one client (a county, its officials, or its entities) will be
materially limited by responsibilities to the other. Determination of a material
limitation conflict of interest is fact and circumstance specific.

Second, if there is a conflict of interest, a county prosecuting attorney must
determine whether the conflict may be ameliorated under Rule 1.7(b) such that
representation of all of the affected clients by the prosecutor’s office may be
undertaken, or whether such representation is prohibited by Rule 1.7(c) even
with client consent.

Under Rule 1.7(b), a county prosecuting attorney may ameliorate a conflict of
interest three conditions are met: 1.7(b)(1) requires a determination by a county
prosecuting attorney that competent and diligent representation can be provided,
such as through different assistant county prosecutors appropriately screened;
1.7(b)(2) requires a county prosecuting attorney to obtain informed consent,
confirmed in writing of each affected client; and 1.7(b)(3) requires that the
representation is not precluded by 1.7(c).

Representation is improper, even with informed consent of the affected clients
under Rule 1.7(c)(1) if the representation is prohibited by law or under Rule
1.7(c)(2) if the representation involves the assertion of a claim by one client
against another client represented by the lawyer in the same proceeding.
Further, as explained in Comment [38] “[d]ivision (c)(2) does not address all
nonconsentable conflicts. Some conflicts are nonconsentable because a lawyer
cannot represent both clients competently and diligently or both clients cannot
give informed consent. For example, a lawyer may not represent multiple
parties to a negotiation whose interest are fundamentally antagonistic,
regardless of their consent.” [Emphasis added].

The word “proceeding” is not defined in Rule 1.7(c)(2). In Op. 2007-4, the Board
construed the meaning of “proceeding” as follows: “A ‘proceeding’ under Ohio
Rule 1.7(c) is not limited to a proceeding before a tribunal. A ‘proceeding’
includes acts and events before a tribunal, as well as acts and events before
mediators, arbitrators, or other administrative bodies.” In the opinion, the Board
acknowledged that in the adoption of Rule 1.7(c) Ohio chose a different approach
from ABA Model Rule 1.7(c). ABA Model Rule 1.7(c) explicitly refers to
“proceedings before a tribunal.” Ohio’s Rule 1.7(c) refers only to a “proceeding”
not a “proceeding before a tribunal.” In fact, the notes following Ohio’s Rule
1.7(c), in the section entitled Comparison to ABA Model Rules of Professional
Conduct, indicate that a proceeding could include mediation. Further, Comment
[37] to Rule 1.7 explains that “[d]ivision (c)(2) bars representation in the same
proceeding, of clients who are directly adverse because of the institutional
interest in vigorous development of each client’s position. A lawyer may not
Op. 2009-3 8

represent both a claimant and the party against whom the claim is asserted
whether in proceedings before a tribunal or in negotiations or mediation of a
claim pending before a tribunal.” [Emphasis added]

Question 1: Representation of multiple statutory clients in the
negotiation of a contract or a memorandum of understanding

   Is it proper for a county prosecuting attorney to represent multiple
   statutory clients in the negotiation of a contract or a memorandum
   of understanding?

In negotiation of a contract or a memorandum of understanding, a county
prosecuting attorney must exercise his or her professional judgment to determine
whether there is a conflict of interest. A minor disagreement among statutory
clients does not necessarily indicate that the clients’ interests are directly adverse
or that there will be a material limitation on the ability of the prosecutor to
consider, recommend, or carry out a course of action for each client. But, when
a minor disagreement among clients escalates to a major disagreement such as
on issues that are material to a contract or a memorandum of understanding, or
when an atmosphere of extreme hostility or antagonism develops among the
clients, it is likely that the clients’ interests are directly adverse and or that there
is a material limitation on a prosecutor’s ability to consider, recommend, or carry
out a course of action. In those circumstances, a prosecutor must prudently
consider whether the conflict of interest may be ameliorated.

The Comments to several rules provide additional guidance as to when multiple
representations are improper. Comment [25] to Rule 1.7 notes that “[a] lawyer
cannot undertake common representation of clients where contentious litigation
or negotiations between them are imminent or contemplated. Moreover,
because the lawyer is required to be impartial between commonly represented
clients, representation of multiple clients is improper when it is unlikely that
impartiality can be maintained. Generally, if the relationship between the parties
is antagonistic, the possibility that the clients’ interest can be adequately served
by common representation is low. Other relevant factors are whether the lawyer
subsequently will represent both parties on a continuing basis and whether the
situation involves creating or terminating a relationship between the parties.”
And, as already stated, Comment [38] to Rule 1.7 explains that “a lawyer may not
represent multiple parties to a negotiation whose interests are fundamentally
antagonistic, regardless of their consent.”

Thus, even when there is a conflict of interest under Rule 1.7(a)(1) or (a)(2)
because the clients’ interests are directly adverse to each other and/or there is a
significant risk that the county prosecutor’s independent judgment on behalf of
one of the clients will be materially limited by the prosecutor’s responsibility to the
other client, a county prosecuting attorney is given leeway under the rules to
proceed with the negotiation of the contract or the memorandum of
Op. 2009-3 9

understanding provided the conflict of interest may be ameliorated by meeting
the applicable conditions of Rule 1.7(b). As already stated, the conditions are
that the county prosecuting attorney must determine whether competent or
diligent representation could be provided, such as through the participation of
different assistant prosecuting attorneys; informed consent of the affected clients,
confirmed in writing explaining the conflict of interest and the manner in which
competent and diligent representation will be provided; and ascertaining that the
representation is not prohibited by law or does not involve the assertion of a
claim by one client against the other in the same proceeding.

In conclusion to Question 1, the Board advises as follows. A county prosecuting
attorney may represent multiple statutory clients in the negotiation of a contract
or a memorandum of understanding except when there is a conflict of interest
under Rule 1.7(a)(1) or (a)(2) that cannot be ameliorated under Rule 1.7(b) or
when there is a nonconsentable conflict of interest under Rule 1.7(c)(1) or (c)(2).
A conflict of interest arises under Rule 1.7(a)(1) when the clients’ interests are
directly adverse. A conflict of interest arises under Rule 1.7(b)(2) when there is a
substantial risk that the county prosecutor’s ability to represent one client will be
materially limited by responsibilities to the other client. Not every disagreement
among clients constitutes a conflict of interest. A county prosecuting attorney
must exercise professional judgment to decide whether a Rule 1.7(a)(1) or (a)(2)
conflict of interest exists and whether it may be ameliorated by meeting the
conditions set forth in Rule 1.7(b)(1) through (3). Rule 1.7(b)(1) requires a
prosecutor’s determination that the prosecutor’s office is able to give competent
and diligent representation to each affected client; Rule 1.7(b)(2) requires each
affected client to give informed consent confirmed in writing; and Rule 1.7(b)(3)
requires that the representation not be precluded by Rule 1.7(c). Rule 1.7(c)(1)
precludes, despite client consent, a representation prohibited by law. Rule
1.7(c)(2) precludes, despite client consent, a representation involving the
assertion of a claim by one client against another client represented by the
lawyer in the same proceeding which includes a negotiation or a mediation.
Regardless of consent, multiple representations should not be undertaken when
two clients’ interests are fundamentally antagonistic or when contentious litigation
or negotiations between two clients are imminent or contemplated. Whether
representation of multiple statutory clients may be provided by different assistant
county prosecuting attorneys employed in the office of the county prosecutor
depends upon whether the conflict of interest is one that may be ameliorated
under Rule 1.7(b) or one that falls under Rule 1.7(c). For conflicts of interest that
may be ameliorated under Rule 1.7(b), representation by different assistant
county prosecuting attorneys is appropriate if the county prosecutor determines
that the conditions set forth in (b)(1) through (b)(3) are met. For conflicts of
interest that fall under Rule 1.7(c), once a county prosecuting attorney
determines that a representation is prohibited by law or that a client has a claim
against another client in a proceeding, the county prosecuting attorney should
not attempt to represent any of them, not even through different assistant
prosecuting attorneys employed in the office of the county prosecuting attorney.
Op. 2009-3 10

Question 2: Representation of multiple statutory clients in the filing of a
lawsuit by one of the clients against the other

   Is it proper for a county prosecuting attorney to represent multiple
   statutory clients in the filing of a lawsuit by one of the clients against
   the other?

Rule 1.7(c)(2) prohibits a lawyer from representation involving the assertion of a
claim by one client against another client represented by the lawyer in the same
proceeding, even if the affected clients give consent. Therefore, when a
controversy evolves into legal dispute that must be resolved through the filing of
a lawsuit by one county official or entity against another, the county prosecuting
attorney is prohibited by Rule 1.7(c)(2) from representing both sides in the
lawsuit, even through different assistant county prosecutors.

It is inevitable that there will be situations in which special counsel will be
required. A county prosecutor has a continuing relationship with the statutory
clients and cannot choose one statutory client over the other. The explanation
offered in Comment [8] to Rule 1.7, as to a lawyer’s ability to decide whether to
withdraw from all affected clients or represent one or more affected clients, is not
applicable to a county prosecutor because each statutory client will be a
continuing client not a former client. [Comment [8] states “[w]hen a conflict arises
from a lawyer’s representation of more than one client, whether the lawyer must
withdraw from representing all affected clients or may continue to represent one
or more of them depends upon whether: (1) the lawyer can both satisfy the
duties owed to the former client and adequately represent the remaining client or
clients, given the lawyer’s duties to the former client (see Rule 1.9); and (2) any
necessary client consent is obtained.”]

In conclusion to Question 2, the Board advises as follows. A county prosecuting
attorney is prohibited by Rule 1.7(c)(2) from representing multiple statutory
clients, such as two different public entities, in the filing of a lawsuit by one of the
clients asserting a claim against the other, even through different assistant
county prosecuting attorneys. When a controversy evolves into a legal dispute
that must be resolved through the filing of a lawsuit by one county official or entity
against the other, the county prosecutor should withdraw in that matter from the
representation of either client and special counsel should be appointed.

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.