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-

2. 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.