Does a lawyer have to report a criminal defense lawyer who practices in the same firm as the county prosecutor?

Plain-English summary

The Board was asked whether a municipal prosecutor must report to disciplinary authorities a criminal defense lawyer who works as an associate in the same firm as the county prosecutor. The Board concluded the answer depends on whether the defense lawyer is court-appointed or privately retained, and withdrew Adv. Op. 1989-09.

Building on Adv. Op. 2014-02, the opinion explains that a court-appointed defense lawyer who is a partner or employee of any prosecutor is acting contrary to R.C. 120.39, which bars appointed counsel from being a partner or employee of a prosecuting attorney; that representation is prohibited by law. For retained clients, there is no parallel statute, but under Adv. Op. 2014-02 lawyers in an elected part-time prosecutor's firm may not represent retained criminal defendants in the county where the prosecutor is elected (a Prof.Cond.R. 1.7(a)(2) conflict), though they may do so outside that county.

On the reporting duty, the Board applied Prof.Cond.R. 8.3, which requires reporting only when a lawyer has actual, unprivileged knowledge raising a question as to another lawyer's honesty, trustworthiness, or fitness, more than a "mere suspicion" (Adv. Op. 2016-02; Adv. Op. 2007-01; Prof.Cond.R. 1.0(g)). The Board concluded a duty to report exists where a lawyer has actual, unprivileged knowledge that the firm-associated defense lawyer is serving as court-appointed counsel in violation of R.C. 120.39, or is representing retained defendants in the county where the prosecutor is elected (a Rule 1.7(a)(2) conflict). If the lawyer knows only that the defense lawyer represents defendants outside that county, with no knowledge of whether the work is retained or appointed, the duty is not triggered. The Board added it is prudent to include the elected prosecutor in any report so the disciplinary authority can investigate whether the prosecutor assisted a violation (Prof.Cond.R. 8.4(a)).

In practice

The opinion holds that, under the Ohio Rules of Professional Conduct as they stood at the time, mere awareness that a defense lawyer is associated in the same firm as the county prosecutor does not, without more, create a duty to report (Prof.Cond.R. 8.3). Per the opinion, the duty arises on actual, unprivileged knowledge that the defense lawyer is taking court appointments in violation of R.C. 120.39, or is representing retained defendants in the county where the prosecutor is the elected official (a Prof.Cond.R. 1.7(a)(2) conflict). The opinion states that knowledge limited to out-of-county representation, without knowing whether it is retained or appointed, does not trigger the duty.

Common questions

Q: Does sharing a firm with the county prosecutor automatically mean a defense lawyer is doing something reportable?

A: No. The opinion concludes that awareness of the association alone, without further analysis, does not create a duty to report under Prof.Cond.R. 8.3.

Q: When is reporting required?

A: The opinion concludes a duty exists when a lawyer has actual, unprivileged knowledge that the firm-associated defense lawyer is taking court appointments (barred by R.C. 120.39) or representing retained defendants in the county where the prosecutor is elected.

Q: What level of knowledge triggers Rule 8.3?

A: The opinion states Prof.Cond.R. 8.3 requires actual, unprivileged knowledge raising a question as to honesty, trustworthiness, or fitness, which is more than a "mere suspicion."

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 8.3 (reporting professional misconduct; Model Rule 8.3) against the conflict framework of Prof.Cond.R. 1.7, 1.10, and 1.11 (Model Rules 1.7, 1.10, 1.11) and the statutory bar in R.C. 120.39 on appointed counsel being a partner or employee of a prosecutor. It also draws on the knowledge standard in Prof.Cond.R. 1.0(g).

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 8.3 (reporting misconduct) (Model Rule 8.3)
• Ohio Prof.Cond.R. 1.7(a)(2), 1.10, 1.11 (Model Rules 1.7, 1.10, 1.11)
• Ohio Prof.Cond.R. 1.0(g) (definition of "knows"); Prof.Cond.R. 8.4(a)

Statutes:

• R.C. 120.39 (appointed counsel may not be a partner or employee of a prosecuting attorney)

Other opinions cited:

• Ohio BPC Adv. Op. 2014-02: representation of criminal defendants by a prosecutor's firm
• Ohio BPC Adv. Ops. 2016-02 and 2007-01: actual-knowledge standard for reporting
• Ohio Att'y Gen. Op. 78-026: conflicts in switching from defense to prosecution

See also

• Ohio BPC Op. 2014-002: Imputation of Conflicts in a Part-Time County Prosecutor's Firm
• Ohio BPC Op. 1989-009: Prosecutor's Duty to Report a Firm Conflict (withdrawn by this opinion)
• Ohio BPC Op. 2019-009: County Prosecutor's Office Representation of Adverse Clients
• Ohio BPC Op. 2008-006: City Law Director and Criminal Defense

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2019/08/Adv.-Op.-2019-08-Final.pdf

Original opinion text

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

OPINION 2019-08
Issued August 2, 2019
Withdraws Adv. Op. 1989-09

Duty to Report Criminal Defense Lawyer Employed in Same Law Firm as County
Prosecutor

SYLLABUS: If a lawyer possesses actual, unprivileged knowledge that a criminal
defense lawyer is acting contrary to state law by serving as court-appointed counsel while
associated in a firm with the county prosecutor, then he or she has a duty to report the
conduct to the appropriate disciplinary authority.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

HON. JOHN W. WISE RICHARD A. DOVE
CHAIR DIRECTOR
PATRICIA A. WISE D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                       OPINION 2019-08
                                     Issued August 2, 2019
                                  Withdraws Adv. Op. 1989-09



Duty to Report Criminal Defense Lawyer Employed in Same Law Firm as County
                                              Prosecutor

SYLLABUS: If a lawyer possesses actual, unprivileged knowledge that a criminal
defense lawyer is acting contrary to state law by serving as court-appointed counsel while
associated in a firm with the county prosecutor, then he or she has a duty to report the
conduct to the appropriate disciplinary authority.

QUESTION PRESENTED: Does a municipal prosecutor have a duty to report a criminal
defense lawyer who is employed as an associate in the same law firm as the county
prosecutor1?

APPLICABLE RULES: Prof.Cond. R. 1.7, 1.10, 1.11, 8.3

OPINION: The Board has been asked to address the duty of a municipal prosecutor to
report to the appropriate disciplinary authority the conduct of a criminal defense lawyer
who practices in the same law firm as the county prosecutor. Much of the analysis related
to a lawyer’s duty to report this association will depend on whether the criminal defense
lawyer is privately retained or court-appointed to represent criminal defendants.

1
For purposes of this Opinion, “the county prosecutor” means the duly elected county prosecutor pursuant to R.C.
§3009.01.
Op. 2019-08 2

Conflict Analysis

   Adv. Op. 2014-02 thoroughly analyzes the issues related to the representation of

criminal defendants by prosecutors and other lawyers practicing in a prosecutor’s private
law firm. When the county prosecutor holds simultaneous positions as both a public
officer or employee as well as an associate or partner at a private law firm, the
representation of criminal defendants by that prosecutor and other lawyers associated in
the prosecutor’s private law firm is governed by Prof.Cond. R. 1.7, 1.10(f), and 1.11, as
well as R.C. §120.39. Adv. Op. 2014-02 holds that the county prosecutor is prohibited
from representing criminal defendants against either the state of Ohio or any municipal
corporation that has authorized the county prosecutor to prosecute cases on its behalf.
The county prosecutor’s conflict of interest in criminal representations against the state
and certain municipal corporations is not imputed to the other lawyers in the prosecutor’s
firm. Id. However, a lawyer associated with a county prosecutor may be prohibited from
representing criminal defendants in certain situations as discussed below. Adv. Op.
2014-02 does not address a lawyer’s duty to report potential professional misconduct of
a criminal defense lawyer due to his or her association in the same firm as the county
prosecutor. In determining if a lawyer has a duty to report the association, the lawyer
must consider if the criminal defense lawyer is court-appointed or privately retained by
a client.

Representation of Clients Pursuant to Court Appointment

   If a criminal defense lawyer associated in the same private law firm as the county

prosecutor is representing a client subject to court appointment, the conflict analysis is
statutory in that the representation is prohibited by law. R.C. §120.39 states, “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 * * * *” R.C. §120.39 (emphasis added). Thus, a conflict exists
because the criminal defense lawyer is statutorily prohibited from accepting court
appointments to represent clients in criminal cases if he or she is a partner or employee
of any prosecutor.
Op. 2019-08 3

Representation of Retained Clients

   There is no accompanying statutory prohibition related to the retained

representation of criminal defendants by lawyers associated in a private firm with the
county prosecutor. Thus, the Board continues to rely on the analysis set forth in Adv.
Op. 2014-02. Adv. Op. 2014-02 concludes that because the elected prosecutor is the
lawyer of record on all matters involving the county prosecutor’s office, lawyers in an
elected part-time prosecutor’s private firm may not represent retained criminal
defendants in the county in which the part-time prosecutor is the elected official. Id. A
defense lawyer in this situation is faced with a conflict under Prof.Cond. R. 1.7(a)(2).
Lawyers in the elected part-time prosecutor’s private firm may represent retained
criminal defendants outside of the county in which the prosecutor is elected. Id.

Obligation to Report

   Turning to the question posed, Prof.Cond. R. 8.3 requires a lawyer to report

misconduct only when the lawyer possesses unprivileged knowledge that raises a
question as to a lawyer’s honesty, trustworthiness, or fitness in other respects. To invoke
the reporting requirement of Prof.Cond. R. 8.3, a lawyer must have actual knowledge that
another lawyer has violated a Rule of Professional Conduct. This requires more than a
“mere suspicion” that misconduct has occurred. Adv. Op. 2016-02; Adv. Op. 2007-01.
The term “’knows’ denotes actual knowledge of the fact in question. A person’s
knowledge may be inferred from circumstances.” Prof.Cond. R. 1.0(g); Adv. Op. 2016-
02. A lawyer should carefully consider the source and basis of the information to
determine if the information is unprivileged and whether he or she has actual knowledge
of the fact(s) in question.

   A lawyer must also consider whether the criminal defense attorney associated in

private practice with the county prosecutor is court-appointed or retained. If a lawyer
has actual, unprivileged knowledge that a criminal defense lawyer is associated in the
same private law firm with the county prosecutor and is simultaneously appointed to
represent a criminal defendant, then he or she must consider if the appointed criminal
defense lawyer’s conduct raises a question as to the lawyer’s honesty, trustworthiness, or
fitness in other respects. The Board is of the opinion that a court-appointed criminal
defense lawyer’s blatant disregard of a law specifically designed to avoid the problems
Op. 2019-08 4

inherent in having attorneys switch from defense to prosecution within the same county,
qualifies as conduct that raises a question as to the lawyer’s fitness to practice law. See
Ohio Att’y Gen’l Op. 78-026. As a result, a clear duty to report exists.

    The Board further advises that a duty to report also exists when a lawyer with

actual, unprivileged knowledge that a criminal defense lawyer associated in a private
firm with the county prosecutor is representing retained clients in the same county in
which the county prosecutor is the elected official. The duty to report is triggered by the
defense lawyer’s conflict of interest under Prof.Cond. R. 1.7(a)(2). See also Adv. Op. 2014-
02.2 However, if the lawyer only possesses information that a criminal defense lawyer
associated in a private firm with the county prosecutor is representing criminal
defendants outside of the county in which the prosecutor is the elected official and has
no actual knowledge as to whether or not the representation is retained or court-
appointed, then the duty to report is not triggered.

CONCLUSION: A lawyer who is aware that a criminal defense attorney is an associate
or partner in the same private law firm as the county prosecutor does not, without further
analysis, have a duty to report this information to a disciplinary authority. The ability of
a prosecutor and other lawyers in the prosecutor’s private firm to represent criminal
defendants is governed by Prof.Cond. R. 1.7, 1.10, and 1.11 as well as R.C. §120.39. R.C.
§120.39 prohibits criminal defense attorneys who are partners or associates of prosecutors
from accepting court-appointed work. In certain limited situations, other lawyers
associated in a firm with county prosecutors have the ability to represent criminal
defendants so long as the client privately retains the lawyer. Adv. Op. 2014-02. Thus, if
a lawyer possesses unprivileged knowledge of a criminal defense lawyer serving as
court-appointed counsel, while associated in a firm with any prosecutor, in violation of
state law, he or she has a duty to report the conduct to the appropriate disciplinary
authority. A duty to report also arises when a lawyer has actual unprivileged knowledge
of a criminal defense lawyer in an elected part-time prosecutor’s firm representing
criminal defendants in the county in which the prosecutor is an elected official. However,
if the lawyer only possesses information that a criminal defense lawyer associated in a
private firm with the county prosecutor is representing criminal defendants outside the

2
If the duty to report arises under either of the above scenarios, the Board advises that it is prudent to
include the elected county prosecutor in the report so that the appropriate disciplinary authority may
investigate if the prosecutor assisted the criminal defense lawyer in violation of the Rules of Professional
Conduct. See Prof.Cond. R. 8.4(a).
Op. 2019-08 5

county in which the prosecutor is the elected officeholder and has no actual knowledge
as to whether or not the representation is retained or court-appointed, then the duty to
report is not triggered.