Can a county prosecutor's office prosecute a juvenile while also representing the county child-services agency in a case involving the same child?

Plain-English summary

A county prosecutor's office both prosecutes delinquency cases for the State of Ohio and represents the county job and family services department (JFS) in abuse, neglect, and dependency cases. The Board addressed whether the state is a client for conflict purposes, whether a conflict arises when the office handles the same juvenile in different cases, and whether any conflict can be ameliorated.

First, relying on Adv. Op. 2014-02 and R.C. 309.08, the Board concluded the State of Ohio is the client of the prosecutor's office when it prosecutes violations of state law. Second, the Board concluded that when the state and JFS seek different dispositional outcomes in different forums involving the same juvenile, the two clients are directly adverse, creating a conflict under Prof.Cond.R. 1.7(a)(1), and there is also a substantial risk of a material-limitation conflict under Prof.Cond.R. 1.7(a)(2).

Third, on amelioration, the Board explained that a prosecutor's office is not a "firm" for imputation purposes, so one assistant prosecutor's conflict is not imputed to the others (Prof.Cond.R. 1.10(c)). The office may therefore assign separate assistant prosecutors to the juvenile prosecution and to the JFS representation and use meaningful and effective screening (Prof.Cond.R. 1.0(l)) to remove the conflict, supported by Comment [2] to Rule 1.11 and Adv. Op. 2007-04. The Board cautioned that each assistant prosecutor must still analyze individual conflicts under Prof.Cond.R. 1.7 and 1.9, and that assignment and screening are not options where the office would represent directly adverse clients in the same proceeding (Prof.Cond.R. 1.7(c)(2)); in that situation outside or special counsel is required, and the prosecuting attorney should determine whether the entire office must recuse.

In practice

The opinion holds that, under the Ohio Rules of Professional Conduct as they stood at the time, the State of Ohio is a client of the prosecutor's office, so a conflict arises when the state and JFS seek different outcomes in matters involving the same juvenile (Prof.Cond.R. 1.7(a)(1)-(2)). Per the opinion, because conflicts are not imputed within a prosecutor's office (Prof.Cond.R. 1.10(c)), the office may resolve the conflict by assigning different assistant prosecutors and using effective, meaningful screening. The opinion states that assignment and screening are not permissible where the office would assert one client's claim against another in the same proceeding (Prof.Cond.R. 1.7(c)(2)), which requires outside or special counsel.

Common questions

Q: Is the State of Ohio a "client" of the prosecutor's office for conflict analysis?

A: Yes. The opinion concludes the state is the client of the prosecutor's office when it prosecutes violations of state law (Adv. Op. 2014-02; R.C. 309.08).

Q: When does prosecuting a juvenile while representing child services create a conflict?

A: The opinion concludes a conflict arises whenever the state and JFS seek different dispositional outcomes in different forums involving the same juvenile, making the clients directly adverse (Prof.Cond.R. 1.7(a)(1)).

Q: Can the office cure the conflict instead of hiring outside counsel?

A: The opinion concludes it can, by assigning different assistant prosecutors and using effective, meaningful screening, because conflicts are not imputed within the office, except where the office would represent directly adverse clients in the same proceeding.

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 1.7 (concurrent conflicts, including direct adversity under 1.7(a)(1), material limitation under 1.7(a)(2), and the same-proceeding bar in 1.7(c)(2); Model Rule 1.7), Prof.Cond.R. 1.10(c) (a government office is not a "firm" for imputation; Model Rule 1.10), Prof.Cond.R. 1.11 and its Comment [2] (special government-officer conflicts; Model Rule 1.11), and the definition of "screened" in Prof.Cond.R. 1.0(l). It applies the prosecutor's statutory duties under R.C. 309.08 and 309.09.

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 1.7(a)(1)-(2), (c)(2) and cmt. [10] (Model Rule 1.7)
• Ohio Prof.Cond.R. 1.10(a), (c) (Model Rule 1.10)
• Ohio Prof.Cond.R. 1.11 and cmt. [2]; Prof.Cond.R. 1.0(l); Prof.Cond.R. 1.8(b); Prof.Cond.R. 1.9

Statutes:

• R.C. 309.08, 309.09 (prosecuting attorney as legal advisor to county officers and boards)

Other opinions cited:

• Ohio BPC Adv. Op. 2014-02: the state as client of the prosecutor's office
• Ohio BPC Adv. Op. 2007-04: screening to resolve intra-governmental conflicts

See also

• Ohio BPC Op. 2014-002: Imputation of Conflicts in a Part-Time County Prosecutor's Firm
• Ohio BPC Op. 2019-008: Duty to Report a Defense Lawyer in the County Prosecutor's Firm
• Ohio BPC Op. 2007-004: City Law Director Conflicts of Interest
• Ohio BPC Op. 2019-005: Part-Time Law Director Conflicts and Imputation

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2019/10/Adv-Op-2019-09-Final-1.pdf

Original opinion text

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

OPINION 2019-9
Issued October 4, 2019

          County Prosecutor’s Office’s Representation of Adverse Clients

SYLLABUS: The State of Ohio is a client of the county prosecuting attorney for purposes
of analyzing conflicts of interest with statutory clients. A conflict of interest under
Prof.Cond.R. 1.7(a) and arising from the prosecutor office’s concurrent representation of
the state and another public client, may be ameliorated through specific client assignment
of assistant county prosecutors and meaningful and effective screening. The client
assignment and screening of assistant county prosecutors is not an option when the
prosecutor’s office is obligated to represent directly adverse clients in the same
proceeding.

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 2019-9
                                Issued October 4, 2019

          County Prosecutor’s Office’s Representation of Adverse Clients

SYLLABUS: The State of Ohio is a client of the county prosecuting attorney for purposes
of analyzing conflicts of interest with statutory clients. A conflict of interest under
Prof.Cond.R. 1.7(a) and arising from the prosecutor office’s concurrent representation of
the state and another public client, may be ameliorated through specific client assignment
of assistant county prosecutors and meaningful and effective screening. The client
assignment and screening of assistant county prosecutors is not an option when the
prosecutor’s office is obligated to represent directly adverse clients in the same
proceeding.

QUESTIONS PRESENTED:

   1). Whether the State of Ohio is a client of the prosecuting attorney for purposes of

analyzing conflicts of interest under Prof.Cond.R. 1.7.

   2). If the state is considered a client, is a conflict of interest created any time the

office prosecutes a delinquency case against an alleged juvenile offender when the
prosecutor also represents the county job and family services department (“JFS”) in a
matter involving the same juvenile?

   3). If a conflict of interest exists, may the conflict be ameliorated?

APPLICABLE RULES: Prof.Cond.R. 1.7, 1.9, 1.10, 1.11.
Op. 2019-9 2

OPINION: Pursuant to R.C. 309.09, the prosecuting attorney is the legal advisor for all
county officers and boards, which includes the county job and family services department
(“JFS”). The prosecuting attorney’s office represents JFS in all abuse, neglect, and
dependency cases and prosecutes all delinquency and unruly cases on behalf of the State
of Ohio. Because there is no specific person that constitutes the “State of Ohio,” the
prosecuting attorney makes decisions based on his or her independent professional
judgment to advance the interests of justice in criminal matters.

    On occasion, the concurrent representation of JFS and the state involves the same

juvenile, with each client seeking different dispositional outcomes. In one scenario the
prosecutor’s office may be responsible for prosecuting the juvenile in one case while it
also represents JFS in protecting the welfare of the juvenile in another case, most often
involving abuse, neglect, and dependency. Another scenario involves the criminal
prosecution of an adult for the alleged abuse of the defendant’s child. In that situation, it
is likely that an assistant prosecuting attorney in another division would file an abuse
case for the same child in juvenile court on behalf of JFS. In the latter example the
prosecutor’s office would be seeking to punish the criminal defendant on behalf of the
state, while it also assists JFS in the reunification of the juvenile’s family in a separate
case. Inherent in both of these scenarios is the possibility of cross-examination of
employees of JFS or the use of confidential information learned during the representation
of JFS by assistant prosecuting attorneys who previously represented the agency.

State of Ohio as Client

    The Board has previously concluded that based on statutory language the state of

Ohio is the client of the prosecutor’s office when the office is prosecuting violations of
state law. Adv. Op. 2014-02. See R.C. 309.08. Under the scenarios provided, the state is
the client when the prosecutor’s office prosecutes a delinquent case against an alleged
juvenile offender.

Conflict of Interest Analysis

    In a prosecutor’s office it is imperative that each lawyer consider their individual

conflicts as to all former and current clients. In a concurrent representation of
government clients and after individual lawyer conflicts are identified and potentially
resolved, the prosecuting attorney should also conduct a conflicts analysis on behalf of
Op. 2019-9 3

the office to determine whether recusal of the office from the matter is warranted and
outside or special counsel should be retained for one or both clients.

      The factual scenarios provided involve concurrent representation and conflicts of

interest. Prof.Cond.R. 1.7(a)(1) provides that “a lawyer’s acceptance of 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.” The determination of a direct
adversity conflict of interest is fact and circumstance specific and can exist during the
concurrent representation of different clients in unrelated matters. “The concurrent
representation of clients whose interests are directly adverse always creates a conflict of
interest,” Prof.Cond.R. 1.7, cmt. [10]. Under the scenarios provided, because the state and
JFS seek different dispositional outcomes in two different forums involving the same
juvenile, the two clients are considered directly adverse to one another resulting in a
conflict of interest prohibited by Prof.Cond.R. 1.7(a)(1).

      Analyzing the same scenarios, a conflict of interest also exists if there is a

substantial risk that the ability of an assistant prosecuting attorney to consider,
recommend, or carry out the representation of one of the clients will be materially limited
by the responsibilities of representing the other client. Prof.Cond.R. 1.7(a)(2). When the
state and JFS desire different outcomes in cases involving the same juvenile, there is a
substantial risk that the representation of one or both of the clients may be materially
limited due to the prosecutor’s office responsibilities to the other client.

      Based on the foregoing analysis, a conflict of interest exists for the prosecutor’s

office any time the state and JFS seek different dispositional outcomes involving the same
juvenile in different forums. This conflict requires the prosecutor’s office to (1) decline or
discontinue representation and utilize outside or special counsel, (2) or consider other
permissibly ethical steps to ameliorate the conflicts utilizing lawyers in the prosecutor’s
office.

Amelioration of Conflict

      The Rules of Professional Conduct impute conflicts of interest to all lawyers

“associated in a firm” and lawyers in the same firm cannot 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 Prof.Cond.R 1.7 (current clients) or Prof.Cond.R. 1.9
(former clients). Prof.Cond.R. 1.10(a). Id. However, a prosecutor’s office is not
Op. 2019-9 4

considered a “firm” for purposes of the Rules of Professional Conduct, and the conflicts
of interest that exist for one assistant prosecutor are not imputed to other assistant
prosecutors in the same office. Prof.Cond.R. 1.10(c).

   When a prosecuting attorney’s office is faced with a concurrent client conflict due

to the opposing views of two separate clients in different matters, the Board is of the
opinion that the meaningful and effective screening of the assistant prosecuting
attorneys, separately assigned to either juvenile prosecution or JFS representation, is
permissible and appropriate to remove a prohibited conflict of interest under
Prof.Cond.R. 1.7(a)(1)-(2). Adv. Op. 2007-4. See Prof.Cond.R. 1.0(l) (definition
of “[s]creened.”) This approach is supported by Comment [2] to Rule 1.11: “[the rule]
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). The effective and
meaningful screening of the assistant prosecutors also avoids the inherent conflict
issues that accompany the cross-examination of former or current clients and the use of
confidential information obtained during a representation of a client prohibited by
Prof.Cond.R. 1.8(b). The screening and assignment of lawyers in this context does
not contemplate obtaining a waiver of conflict from each client, but rather is an
administrative function of the prosecutor’s office to eliminate and resolve intra-
governmental conflicts of interest.

Other Considerations

   Even when screening is employed by the prosecutor’s office, assistant

prosecutors employed in the office should always analyze their own individual
conflicts under Prof.Cond.R. 1.7 and 1.9 for every matter and client. Assignment and
screening are not options when the prosecutor’s office would be representing directly
adverse clients in the same proceeding. In such a situation, the retention or
appointment of outside or special counsel is required because the dual representation
would be strictly prohibited under Prof.Cond.R. 1.7(c)(2). Adv. Op. 2007-04.

CONCLUSION: County prosecutor offices are charged with the representation of
multiple governmental agency clients in addition to the representation of the state of
Ohio. The concurrent representation of JFS and the state of Ohio by county prosecutors
in matters involving the same juvenile can give rise to conflicts of interest. Specifically,
the representation can result in situations where clients of the prosecutor’s office are
Op. 2019-9 5

directly adverse to one another in unrelated matters or a material limitation conflict
exists. However, because the imputation of conflicts of interest is not applicable to
lawyers in a prosecutor’s office, the assignment of different assistant prosecutors to each
client coupled with effective and meaningful screening can be utilized to resolve conflicts
of interest arising under Prof.Cond.R. 1.7(a)(1)-(2). Assignment of lawyers to different
clients and screening is not permissible in situations that involve a claim of one client
against another client in the same proceeding under Prof.Cond.R. 1.7(c)(2). In most cases,
this type of conflict requires the prosecutor’s office to decline or discontinue
representation and utilize outside or special counsel. When analyzing potential conflicts,
it is important for each lawyer in the prosecutor’s office to consider their individual
conflicts as to former and current clients. In a concurrent representation involving
government clients, the prosecuting attorney should also conduct a conflicts analysis on
behalf of the office and make a determination whether recusal of the entire office is
warranted.