Can lawyers in a part-time county prosecutor's law firm take criminal defense cases against the state?

Plain-English summary

The Board revisited its 1988 Opinion 88-008 on part-time county prosecutors who also practice privately, common in rural counties. It first reaffirmed that a part-time prosecutor (elected or assistant) cannot represent criminal defendants in cases brought on behalf of the state, or on behalf of a municipal corporation the prosecutor is authorized by agreement to prosecute for. Because the prosecutor's client is the state, the conflict under Prof. Cond. R. 1.7(a)(1) is nonconsentable: the state cannot give informed consent, and the representation is prohibited by law (R.C. 102.03 and the Attorney General's view), so Rule 1.7(b) cannot cure it.

The Board then reached the question that drove the new opinion: whether that conflict is imputed to the prosecutor's firm. Under the former Code (DR 5-105(D)), it was, so firm colleagues could not do the defense work either. The Board held that the 2007 Rules changed this. Prof. Cond. R. 1.10(f) makes Rule 1.11 the exclusive rule for imputation of current and former government lawyers' conflicts, and Rule 1.11(d) does not impute a current government officer's conflict to associated lawyers. Reading 1.10(f), 1.11, and 1.7 together, the Board concluded the prosecutor's government-practice conflict does not impute to the firm, so the other lawyers may represent criminal defendants against the state and the relevant municipal corporations. To that extent, Opinion 88-008 was withdrawn in part.

The Board attached protections and limits. Borrowing the screening-and-fee approach of Rule 1.11(c), it said the part-time prosecutor should be timely screened from the firm's criminal defense matters and should not share in those fees, and within the prosecutor's office should be screened from cases involving the firm and should not oppose the firm's lawyers. Two statutory limits remain: under R.C. 120.39, partners and employees of a prosecutor cannot take court-appointed (indigent) criminal cases, and because the elected county prosecutor is counsel of record on all the office's matters under R.C. 309.08, lawyers in an elected part-time prosecutor's firm may not defend criminal cases in that county (though they may outside it). That county restriction does not apply to a part-time assistant prosecutor's firm.

In practice

The opinion holds that, under the Ohio rules as they stood at the time, a part-time county prosecutor's conflict against the state is nonconsentable for the prosecutor but is governed for the firm by Prof. Cond. R. 1.10(f) and 1.11, which do not impute it. Per the opinion, firm colleagues may therefore take criminal defense against the state, provided the prosecutor is timely screened and receives no part of those fees. The opinion identifies two remaining statutory bars: no court-appointed indigent defense by a prosecutor's partners or employees (R.C. 120.39), and no criminal defense in the county where an elected part-time prosecutor serves (R.C. 309.08).

Common questions

Q: Can a part-time county prosecutor personally take criminal defense cases?

A: The opinion concluded no; defending criminal cases brought by the state (or a municipality the prosecutor prosecutes for) is a nonconsentable conflict under Prof. Cond. R. 1.7 that cannot be cured by consent.

Q: Can other lawyers in the prosecutor's firm take those criminal defense cases?

A: The opinion concluded yes; under Prof. Cond. R. 1.10(f) and 1.11 the prosecutor's government-practice conflict is not imputed to the firm, unlike under the former Code.

Q: What safeguards did the Board recommend if the firm does that defense work?

A: The opinion concluded the prosecutor should be timely screened from the firm's criminal defense matters and should not receive any fee from them, drawing on Prof. Cond. R. 1.11(c).

Q: Are there cases the firm still cannot take?

A: The opinion concluded the firm's lawyers cannot accept court-appointed indigent defense (R.C. 120.39), and lawyers in an elected part-time prosecutor's firm cannot defend criminal cases in the county where that prosecutor is elected (R.C. 309.08).

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 1.7 (current-client conflicts), 1.10 (imputation generally, including 1.10(f) routing government-lawyer imputation to Rule 1.11), and 1.11 (special conflicts rules for current and former government officers and employees) (Model Rules 1.7, 1.10, 1.11). It also applies Ohio statutes governing prosecutors (R.C. 309.08, 102.03, 120.39).

Citations and references

Rules of Professional Conduct:

• Ohio Prof. Cond. R. 1.7 (conflict of interest: current clients) (Model Rule 1.7)
• Ohio Prof. Cond. R. 1.10 (imputation of conflicts), including 1.10(f) (Model Rule 1.10)
• Ohio Prof. Cond. R. 1.11 (special conflicts for government officers and employees) (Model Rule 1.11)

Statutes:

• R.C. 309.08 (county prosecutor's duties), R.C. 102.03 (post-employment representation), R.C. 120.39 (court-appointed counsel may not be a prosecutor's partner or employee)

Cases:

• Melling v. Stralka, 8th Dist. Cuyahoga No. 45622, 1983 WL 3092 (June 16, 1983) (Markus, J., dissenting), consent to representation against the state

Other opinions cited:

• Ohio BPC Op. 88-008 (1988) (affirmed in part, withdrawn in part): part-time prosecutor and firm criminal defense work
• 2009 Ohio Atty. Gen. Op. No. 2009-053: assistant prosecutor in private practice

See also

• Ohio BPC Op. 2009-003: County Prosecutor with Multiple Statutory Clients
• Ohio BPC Op. 2010-005: Imputed Conflicts in State Public Defender Offices
• Ohio BPC Op. 2013-004: Cross-Examining a Former Criminal Client

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_14-002.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

BOARD OF COMMISSIONERS ON GRIEVANCES & DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov

DAVID E. TSCHANTZ RICHARD A. DOVE
CHAIR SECRETARY
PAUL M. DE MARCO HEIDI WAGNER DORN
VICE- CHAIR COUNSEL

                                     OPINION 2014-2
                                   Issued August 8, 2014

     Imputation of Conflicts in a Part-Time County Prosecutor’s Law Firm

SYLLABUS: When a part-time county prosecutor practices in a firm, the prosecutor is
prohibited from representing criminal defendants prosecuted on behalf of the state of
Ohio. Such representation creates a conflict of interest under Prof.Cond.R. 1.7(a) that
cannot be ameliorated through Prof.Cond.R. 1.7(b). If the part-time county prosecutor
is also authorized to prosecute cases brought by a municipal corporation, the prosecutor
is further prohibited from representing criminal defendants against that municipal
corporation. The other lawyers in a part-time county prosecutor’s firm, however, are
permitted to represent criminal defendants in cases prosecuted on behalf of the state
and municipal corporations represented by the prosecutor. Prof.Cond.R. 1.10(f) and
1.11 indicate that the conflicts of the part-time county prosecutor associated with
government practice are not imputed to the other lawyers in the firm. To protect client
interests, the part-time prosecutor should be timely screened from the firm’s criminal
defense matters and the prosecutor should not be apportioned fees from the firm’s
criminal defense work. Lawyers in an elected part-time prosecutor’s firm may not
represent criminal defendants in the county in which the part-time prosecutor is the
elected official, but may represent criminal defendants outside of the county in which
the prosecutor is elected.

Advisory Opinion 88-008 is withdrawn in part.

QUESTION PRESENTED: Are the lawyers in a part-time elected county prosecutor’s
or part-time assistant prosecutor’s law firm permitted to represent criminal defendants
in cases against the state or municipal corporations represented by the prosecutor?
Op. 2014-2 2

APPLICABLE RULES: Rules 1.7, 1.10, and 1.11 of the Ohio Rules of Professional
Conduct

OPINION:

   An elected county prosecutor has asked the Board to consider the imputation of

a part-time prosecutor’s government practice conflicts to the other lawyers in the
prosecutor’s law firm. Both elected county prosecutors and assistant prosecutors are
permitted to engage in the private practice of law. See R.C. 325.11(B); 2009 Ohio
Atty.Gen.Ops. No. 2009-053. Especially in rural and sparsely-populated Ohio counties,
there are limited legal resources and the elected prosecutor often employs part-time
assistant prosecutors to handle both criminal and civil cases. The practices of these
hybrid public and private sector lawyers present a challenge when applying the conflict
imputation provisions found in the Rules of Professional Conduct (Rules). This
Opinion addresses the imputation of the conflicts created by a part-time county
prosecutor’s government practice in criminal cases. 1 For purposes of this Opinion,
“part-time county prosecutor” includes both a part-time elected county prosecutor and
a part-time assistant county prosecutor.

Part-Time County Prosecutor’s Ability to Represent Criminal Defendants

    In Advisory Opinion 88-008, the Board was asked to determine under what

circumstances a part-time county prosecutor could represent criminal defendants. At
that time, the Code of Professional Responsibility (Code) was in effect, and DR 5-105
governed lawyers’ conflicts of interest. DR 5-105(A) and (B) required lawyers to decline
or refuse to continue a representation if “the exercise of *the lawyer’s+ independent
professional judgment in behalf of a client will be or is likely to be adversely affected by
the acceptance of the proffered employment” or the “representation of another client.”
Under DR 5-105(C), a client could consent to a lawyer’s conflict of interest after full
disclosure, and DR 5-105(D) imputed a lawyer’s conflict to the partners and associates
of the lawyer’s firm.

  Applying DR 5-105, and relying on a 1971 Ohio Attorney General Opinion, the

Board concluded that “*a+ county prosecuting attorney, whose duty it is to prosecute,

1Although under R.C. 309.09 the county prosecutor is the civil legal advisor to a number of county
entities, the imputation of the conflicts associated with a part-time county prosecutor’s civil government
practice is outside the scope of the current question posed to the Board. For guidance on the civil
representation of multiple statutory clients by a county prosecutor, see Ohio Sup. Ct., Bd. of Comm’rs on
Grievances and Discipline, Op. 2009-3 (June 12, 2009).
Op. 2014-2 3

on behalf of the State, all complaints, suits and controversies in which that state is a
party, may not represent private clients in criminal cases against the State of Ohio.”
Ohio Sup. Ct., Bd. of Comm’rs on Grievances and Discipline, Op. 88-008 (June 17, 1988),
at 3. See also 1971 Ohio Atty.Gen.Ops. No. 71-050. The Board also quoted a 1967 Ohio
State Bar Association informal opinion which stated that it would be “improper for an
attorney who holds the public office of County Prosecutor or Assistant County
Prosecutor to accept employment adverse to his employer, the public.” Ohio State Bar
Assn., Informal Op. 67-1 (March 21, 1967), at 5.

   The Supreme Court of Ohio repealed the Code effective February 1, 2007 and

adopted the Rules. A part-time county prosecutor’s ability to represent criminal
defendants in private practice is now governed by Prof.Cond.R. 1.11, which is a special
conflict rule for current government officers and employees, and Prof.Cond.R. 1.7,
which addresses conflicts of interest involving current clients. 2

    Prof.Cond.R. 1.11 does not differentiate between part-time and full-time

government officers and employees. Division (d) of that rule applies to lawyers
currently engaged in public service, and states that, except as otherwise permitted by
law, such lawyers shall comply with Prof.Cond.R. 1.7 regarding current-client conflicts
of interest.

    Prof.Cond.R. 1.7(a)(1) states that “*a+ lawyer’s acceptance or continuation of

representation of a client creates a conflict of interest if…the representation of that client
will be directly adverse to another current client.” By statute, county prosecutors and
assistant prosecutors represent the state of Ohio. Under R.C. 309.08(A), county
prosecutors “may inquire into the commission of crimes within the county” and “shall
prosecute, on behalf of the state, all complaints, suits, and controversies in which the
state is a party * * * and other suits, matters, and controversies that the prosecuting
attorney is required to prosecute within or outside the county, in the probate court,
court of common pleas, and court of appeals.” Further, by agreement, some county
prosecutors represent municipal corporations in criminal prosecutions. See R.C.
1901.34(D). Because a county prosecutor’s client in criminal cases is the state of Ohio,
criminal defense representation by a part-time prosecutor in cases brought on behalf of
the state is a conflict of interest under Prof.Cond.R. 1.7(a)(1). Such representation

2This Opinion does not apply to city directors of law or village solicitors. For guidance on their conflicts
of interest, the following Advisory Opinions should be consulted: Ohio Sup. Ct., Bd. of Comm’rs on
Grievances and Discipline, Op. 2007-4 (June 8, 2007); Ohio Sup. Ct., Bd. of Comm’rs on Grievances and
Discipline, Op. 2008-5 (Aug. 15, 2008); Ohio Sup. Ct., Bd. of Comm’rs on Grievances and Discipline, Op.
2008-6 (Dec. 5, 2008).
Op. 2014-2 4

would involve the representation of one client, the criminal defendant, in a case directly
adverse to another current client, the state of Ohio. If the part-time prosecutor
represents a municipal corporation in criminal cases by agreement, representation of
criminal defendants in cases brought on behalf of the municipal corporation would
likewise create a conflict of interest under Prof.Cond.R. 1.7(a)(1). Accordingly, a part-
time prosecutor would not be able to represent criminal defendants in these types of
cases unless it is possible for the conflict of interest to be ameliorated.

    Prof.Cond. R. 1.7(b) indicates that a conflict of interest created by the

representation of two directly-adverse current clients in different matters may be
ameliorated if the lawyer is able to provide competent and diligent representation to
both clients, the clients provide informed consent, confirmed in writing, to the
simultaneous representation, and the representation is not prohibited by law. The
nature of a part-time prosecutor’s government practice makes amelioration of the
conflict created by criminal defense work impossible for two reasons. First, a part-time
prosecutor’s client is the state of Ohio, which is not able to provide informed consent,
confirmed in writing. Advisory Opinion 88-008. See also Tenn.Sup.Ct., Bd. of Prof’l
Responsibility, Op. 2002-F-146 (Mar. 8, 2002). Even though Prof.Cond.R. 1.7(b) allows
clients to consent to representation by a conflicted lawyer, “s+ome conflicts are
nonconsentable because both clients cannot give informed consent.” Prof.Cond.R. 1.7,
Comment 38+. “Where a lawyer continuously represents the state for criminal
prosecutions, only the legislature can provide client consent for the lawyer to dilute
required loyalty, by representing another client against the state in a criminal case.”
Melling v. Stralka, 8th Dist. Cuyahoga No. 45622, 1983 WL 3092, 13 (June 16, 1983)
(Markus, J., dissenting). Accordingly, a part-time prosecutor would not be able to
obtain the client consent required to ameliorate the conflict created by representing
criminal defendants in private practice.

   Second, the representation of criminal defendants by a part-time prosecutor is a

conflict of interest that cannot be overcome because it is prohibited by law. In an
opinion addressing whether an assistant county prosecutor may simultaneously engage
in the private practice of law, the Attorney General stated that a prosecutor “who
engages in the private practice of law is clearly subject to divided loyalties when, as a
private practitioner, he participates in matters that align him against the county
prosecuting attorney.” 2009 Ohio Atty.Gen.Ops. No. 2009-053, at 3. Given that the
statutory legal advisor for Ohio prosecutors3 has determined that a prosecutor’s private
practice of law is incompatible with the prosecutor’s public position when that private

3
See, R.C. 109.14.
Op. 2014-2 5

practice involves the representation of defendants in criminal proceedings brought by
the state or a municipal corporation that has entered into an agreement with the county
prosecuting attorney whereby the county prosecuting attorney prosecutes criminal
cases for the municipal corporation, such representation is a conflict of interest that is
prohibited by law which, under Prof.Cond.R. 1.7(c)(1), cannot be ameliorated by client
consent.

   Revised Code 102.03 states that “*n+o present or former public official or

employee shall, during public employment or service or for twelve months thereafter,
represent a client or act in a representative capacity for any person on any matter in
which the public official or employee personally participated as a public official or
employee through decision, approval, disapproval, recommendation, the rendering of
advice, investigation, or other substantial exercise of administrative discretion.” R.C.
102.03 indicates that a part-time county prosecutor can not represent a criminal
defendant in a matter in which the prosecutor personally participated.

   Like the Code, the Rules indicate that a part-time prosecutor’s representation of

criminal defendants against the state of Ohio would be a nonconsentable conflict of
interest. The Rules also dictate that a part-time prosecutor can not represent criminal
defendants against a municipal corporation when the prosecutor is authorized by
agreement to prosecute criminal cases for the municipal corporation. The Board drew a
similar conclusion in Advisory Opinion 88-008 as to a part-time prosecutor’s ability to
represent criminal defendants. Accordingly, the Board hereby reaffirms that portion of
Opinion 88-008.

Representation of Criminal Defendants by Other Lawyers in Part-Time Prosecutor’s Firm

     In the 1988 Opinion, the Board also determined that “*m+embers of a part-time

prosecuting attorney’s law office may not accept employment that the prosecutor is
precluded from accepting.” Advisory Opinion 88-008 at 3. Because the Board
concluded that part-time prosecutors could not represent criminal defendants against
the state of Ohio in their private practices, the practical effect of this statement was that
the other lawyers in a part-time prosecutor’s law firm also could not engage in criminal
defense work. The basis for the Board’s conclusion was DR 5-105(D), which stated that
“i+f a lawyer is required to decline employment or to withdraw from employment for
a conflict of interest], no partner or associate of his or his firm may accept or continue
such employment.” The Supreme Court adopted this provision of the Code effective
October 5, 1970.
Op. 2014-2 6

   The concept of conflict imputation that originated in DR 5-105(D) is now found

in Prof.Cond.R. 1.10(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.

Reading Prof.Cond.R. 1.10(a) alone, it would appear that the conflicts of part-time
county prosecutors remain imputed to the other lawyers in the prosecutor’s law firm,
thereby prohibiting criminal defense work by those lawyers against the state and, in
some instances, municipal corporations. However, when the Supreme Court adopted
the Rules in 2007, it included new language from the Model Rules of Professional
Conduct that speaks directly to lawyers in practice with lawyers who also work in the
public sector. This language is found in Prof.Cond.R. 1.10(f), which states that “t+he
disqualification of lawyers associated in a firm with former or current government
lawyers is governed by Rule 1.11.” The drafters of the Model Rules added this
language in 2002 to “clarify+ that Rule 1.11 is intended to be the exclusive rule
governing the imputation of conflicts of interest of current or former government
lawyers.” ABA Ctr. for Prof’l Responsibility, A Legislative History: The Development of the
ABA Model Rules of Professional Conduct 1982-2013, at 264 (2013).

   A “firm” is defined as “a lawyer or lawyers in a law partnership, professional

corporation, sole proprietorship, or other association authorized to practice law; or
lawyers employed in a private or public legal aid or public defender organization, a
legal services organization, or the legal department of a corporation or other
organization.” Prof.Cond.R. 1.0(c). A government office is not a “firm” for purposes of
the Rules. See Prof.Cond.R. 1.0, Comment [4A]. Because Prof.Cond.R. 1.10(f) refers to
lawyers associated in a “firm” with “current government lawyers,” it clearly governs
the lawyers in a part-time prosecutor’s private law firm.

   Applying Prof.Cond.R. 1.10(f) to the present inquiry, the ability of the lawyers in

a part-time county prosecutor’s law firm to represent criminal defendants must be
analyzed under Prof.Cond.R. 1.11, the special conflict rule for current government
officers and employees, not Prof.Cond.R. 1.10, the general rule on imputation of
Op. 2014-2 7

conflicts in firms. Again, Prof.Cond.R. 1.11(d)(1) obligates a part-time prosecutor to
abide by the general conflict of interest provisions of Prof.Cond.R. 1.7, including the
prohibition against representing current clients who are directly adverse. As previously
stated in this Opinion, Prof.Cond.R. 1.7(a) indicates that part-time county prosecutors
have a conflict of interest in criminal defense cases against the state and some municipal
corporations, and under Prof.Cond.R. 1.7(b) and (c) this conflict may not be
ameliorated. Nevertheless, the conflict imputation principles of Prof.Cond.R. 1.10 in the
firm setting are not applicable to the conflicts of government lawyers addressed in
Prof.Cond.R. 1.11(d)(1). See Prof.Cond.R. 1.11, Comments [2] and [3]. Reading all of
these provisions together, the Board concludes that, unlike the Code, the Rules do not
impute a part-time county prosecutor’s conflict of interest in criminal representations
against the state and certain municipal corporations to the other lawyers in the
prosecutor’s firm. For this reason, Advisory Opinion 88-008 is withdrawn in part.

Court-Appointed Criminal Defense Work by Other Lawyers in Part-Time Prosecutor’s Firm

    Although the Board’s view is that the lawyers in a part-time county prosecutor’s

firm may represent criminal defendants against the state and municipal corporations,
this option is not available in every criminal case. Under R.C. 120.39, “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…” This statutory prohibition “does not extend
to retained counsel, but relates solely to counsel appointed at state expense to provide
legal services to indigents.” In re Appeal of a Juvenile, 61 Ohio App.2d 235, 238, 401
N.E.2d 937, 939 (1978). Despite the failure of a part-time prosecutor’s government
practice conflicts to impute to the other lawyers in the prosecutor’s firm, the other
lawyers are statutorily-prohibited from accepting court-appointed criminal cases if they
are partners or employees of any prosecutor.

Additional Considerations when Lawyers and Part-Time Prosecutors Practice in the Same Firm

   Prof.Cond.R. 1.11(c) addresses situations in which a former government lawyer

acquires confidential government information, subsequently enters private practice,
and considers the representation of a private client who is adverse to the person to
whom the information pertains. The former government lawyer is prohibited from
representing the private client if the confidential government information could be used
to the person’s disadvantage. The former government lawyer’s firm is only permitted
Op. 2014-2 8

to undertake or continue the representation if a timely screen is implemented and the
lawyer does not receive any portion of the fee associated with the matter.

   While Prof.Cond.R. 1.11(c) only appears to apply to former government lawyers,

rather than current, part-time government lawyers, the Board believes that the
approach to screening and fees set forth in Prof.Cond.R. 1.11(c) is an appropriate
method for protecting the interests of the criminal defense clients of a part-time county
prosecutor’s law firm. To preserve information required to be kept confidential by
Prof.Cond.R. 1.6, the part-time prosecutor should be screened from the firm’s criminal
defense matters. “Screened” means “the isolation of a lawyer from any participation in
a matter through the timely imposition of procedures within a firm that are reasonably
adequate under the circumstances to protect information that the isolated lawyer is
obligated to protect under these rules or other law.” Prof.Cond.R. 1.0(l). Also, because
the part-time prosecutor is disqualified under Prof.Cond.R. 1.7 from representing
criminal defendants in cases brought by the state and possibly certain municipal
corporations, the prosecutor should not be apportioned any part of the fee associated
with the criminal defense representations of his or her colleagues. A screened lawyer
may be able to receive compensation “established by prior independent agreement, but
that lawyer may not receive compensation directly related to the matter in which the
lawyer is disqualified.” Prof.Cond.R. 1.10, Comment *5C+.

  Within the county prosecutor’s office, the part-time prosecutor should be

screened from any criminal defense cases involving the lawyers in the part-time
prosecutor’s firm. See Prof.Cond.R. 1.11, Comment *2+. “Because of the special
problems raised by imputation within a government agency, [Prof.Cond.R. 1.11(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.” Id. Further, the part-time
prosecutor should not handle criminal prosecutions in which the lawyers in the
prosecutor’s firm would be opposing counsel. In the opinion of the Board, this would
be a material limitation conflict under Prof.Cond.R. 1.7 that cannot be ameliorated
though consent due to the inability of the state to provide informed consent to the
representation.

   Additionally, a distinction must be drawn for conflicts of interest for lawyers in a

firm with the elected part-time prosecutor and those in a firm with part-time assistant
prosecutors, who are not elected officials. Revised Code Section 309.08 governs the
powers and duties of the elected county prosecuting attorney. The powers and duties
of the elected county prosecuting attorney include prosecuting all complaints, suits, and
Op. 2014-2 9

controversies on behalf of the state of Ohio within the county where that prosecutor is
elected. R.C. 309.08. As a result, the elected prosecutor is the lawyer of record on all
matters involving the county prosecutor’s office. Therefore, lawyers in an elected part-
time prosecutor’s firm may not represent criminal defendants in the county in which
the part-time prosecutor is the elected official. However, lawyers in an elected part-
time prosecutor’s firm may represent criminal defendants in matters outside of the
county in which the prosecutor is elected. This restriction does not apply to lawyers in
a part-time assistant prosecutor’s firm.

CONCLUSION:

   In this Advisory Opinion, the Board revisits Opinion 88-008, which is hereby

affirmed in part and withdrawn in part. The Rules of Professional Conduct prohibit
part-time county prosecutors from representing criminal defendants against the state of
Ohio, and if the part-time prosecutor is authorized by agreement to prosecute cases on
behalf of a municipal corporation, he or she is also prohibited from representing
criminal defendants against that municipal corporation. Such criminal defense
representation is a conflict of interest under Prof.Cond.R. 1.7(a) that cannot be
ameliorated through Prof.Cond.R. 1.7(b).

   The imputation of a part-time county prosecutor’s conflict of interest regarding

criminal defense representations is governed by Prof.Cond.R. 1.10(f) and 1.11. These
rules indicate that the prosecutor’s conflict does not impute to the other lawyers who
practice with the prosecutor in a firm. Accordingly, these lawyers are permitted to
represent criminal defendants in cases against the state of Ohio and any municipal
corporations for which the prosecutor is authorized to act. The lawyers may be
prohibited from representing indigent defendants in court-appointed cases, however, as
the partners and employees of county prosecutors are statutorily-prohibited from
accepting such appointments.

    To protect the interests of the criminal defense clients of a part-time county

prosecutor’s law firm, the Board recommends the approach set forth in Prof.Cond.R.
1.11(c) regarding former government lawyers in possession of confidential government
information. A part-time county prosecutor also engaged in private practice should be
timely screened from the firm’s criminal defense matters and the prosecutor should not
be apportioned any fee from these matters. Additionally, within the county
prosecutor’s office, the part-time prosecutor should be timely screened from criminal
cases involving the other lawyers in the prosecutor’s firm. Finally, the part-time
prosecutor should not oppose lawyers from the prosecutor’s firm. This scenario creates
Op. 2014-2 10

a material limitation conflict under Prof.Cond.R. 1.7(a) that cannot be ameliorated
pursuant to Prof.Cond.R. 1.7(b).

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.