Can a county prosecutor appear before a part-time judge who employs one of the prosecutor's assistants in private practice?

Plain-English summary

The Board addressed a recurring rural-county arrangement: a part-time assistant county prosecutor who also works in a private law firm owned by a part-time municipal court judge. The question was whether the county prosecuting attorney may appear before that judge.

The Board first analyzed the part-time assistant prosecutor's own conflict. The state is the client when the prosecutor's office enforces state law (Adv. Ops. 2014-02, 2019-09; R.C. 309.08). The assistant prosecutor's financial interest in keeping the firm job presents a substantial risk that the lawyer's duties to the state will be materially limited under Prof.Cond.R. 1.7(a)(2), because the assistant prosecutor might soften advocacy before, or hesitate to appeal, his or her own employer-judge. The Board further concluded the representation is prohibited by law: Prof.Cond.R. 8.4(e) bars implying an ability to improperly influence a government officer, and an assistant prosecutor appearing before the employing judge implies that ability. Because the conflict arises from conduct prohibited by law, it cannot be cured by client consent under Prof.Cond.R. 1.7(b) and (c).

The Board then turned to imputation. Prof.Cond.R. 1.11 is the exclusive rule governing imputation of current and former government lawyers' conflicts. Because of the special problems of imputation within a government office, Prof.Cond.R. 1.11, cmt. [2] does not impute the assistant prosecutor's conflict to other lawyers in the prosecutor's office; the county prosecutor or another assistant may handle the matters the conflicted assistant cannot. The Board added that the elected prosecutor should still assess his or her own individual conflict under Prof.Cond.R. 1.11(d), considering whether the mentoring or employment relationship with the assistant would materially limit the prosecutor's own advocacy before the part-time judge; if so, the prosecutor should assign another assistant or seek appointment of special counsel.

In practice

Under this opinion, the part-time assistant prosecutor may not appear before the municipal court judge who employs him or her in private practice, and that conflict cannot be waived because it stems from conduct Prof.Cond.R. 8.4(e) prohibits. Per the opinion, that conflict is not imputed to the elected county prosecutor or other assistants under Prof.Cond.R. 1.11, cmt. [2], so the county prosecutor may appear before the judge. The opinion holds the prosecutor should nonetheless conduct an individual Prof.Cond.R. 1.11(d) analysis of his or her own relationship with the assistant and reassign the matter or obtain special counsel if that relationship would materially limit the prosecutor's advocacy.

Common questions

Q: Can a county prosecutor appear before a part-time judge who employs one of the prosecutor's assistants in private practice?

A: The opinion concludes yes. The assistant prosecutor's conflict is not imputed to the elected prosecutor under Prof.Cond.R. 1.11, cmt. [2], so the prosecutor is not prohibited from appearing, subject to the prosecutor's own individual conflict analysis.

Q: Can the part-time assistant prosecutor appear before the judge who employs the assistant's firm?

A: No. The opinion concludes the assistant prosecutor's representation of the state before the employing judge is prohibited by law under Prof.Cond.R. 8.4(e), so the conflict cannot be waived by the client.

Q: Why can't the client just consent to the conflict?

A: Per the opinion, Prof.Cond.R. 8.4(e) satisfies the Prof.Cond.R. 1.7(c)(1) prohibition against undertaking representation prohibited by law; a conflict prohibited by law is non-consentable.

Background and rules framework

The opinion applies Prof.Cond.R. 1.7 (concurrent conflicts of interest; Model Rule 1.7) and Prof.Cond.R. 1.11 (special conflicts of interest for current and former government lawyers; Model Rule 1.11), and relies on Prof.Cond.R. 8.4(e) to characterize the assistant prosecutor's appearance as prohibited by law. It treats Prof.Cond.R. 1.11 as the exclusive imputation rule for government lawyers.

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 1.7(a)(2), 1.7(b), 1.7(c)(1) and cmt. [1] (Model Rule 1.7)
• Ohio Prof.Cond.R. 1.11(d)(1) and cmt. [2] (Model Rule 1.11)
• Ohio Prof.Cond.R. 8.4(e) (implying ability to influence a government officer)

Statutes:

• R.C. 309.08 (duties of the county prosecuting attorney)
• R.C. 325.11(B) (part-time officers)

Other opinions cited:

• Ohio Adv. Op. 2014-02; Adv. Op. 2019-09; Adv. Op. 1994-2: government-lawyer conflicts and appearance of influence
• 2009 Ohio Atty.Gen.Op. No. 2009-053: part-time public lawyers in private practice

See also

• Ohio BPC Op. 1988-013: Prosecutor Appearing Before a Judge Employing an Assistant
• Ohio BPC Op. 2022-004: Imputation of a Prosecutor's Former-Client Conflicts
• Ohio BPC Op. 1989-023: Assistant Prosecutor Also Serving as a City Police Officer

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2022/02/Adv.Op_.-2022-01-Final.pdf

Original opinion text

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

OPINION 2022-01
Issued February 4, 2022
Withdraws Adv. Op. 1988-013

Imputation of Part-Time Assistant Prosecutor Conflict to County Prosecuting Attorney

SYLLABUS: A county prosecuting attorney is not prohibited from appearing before a part-time municipal court judge, who also employs a part-time assistant county prosecutor in a private law firm.

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

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

OPINION 2022-1
Issued February 4, 2022
Withdraws Adv. Op. 1988-013

Imputation of Part-Time Assistant Prosecutor Conflict to County Prosecuting Attorney

SYLLABUS: A county prosecuting attorney is not prohibited from appearing before a part-time municipal court judge, who also employs a part-time assistant county prosecutor in a private law firm.

QUESTIONS PRESENTED:

May a county prosecuting attorney, who employs a part-time assistant prosecutor, appear before a part-time municipal court judge who also employs the same part-time assistant prosecutor in a private law firm?

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

OPINION:

Both assistant prosecutors and part-time judges are permitted to engage in the private practice of law. See Jud.Cond.R., App. III; R.C. 325.11(B); and 2009 Ohio Atty.Gen.Op. No. 2009-053. In rural and sparsely populated Ohio counties, there may be limited legal resources or employment opportunities requiring some judges and lawyers to take on part-time legal work. Elected prosecutors often employ part-time assistant prosecutors to handle both criminal and civil cases. The practices of these hybrid public and private sector lawyers and judges often implicate the conflict imputation provisions found in the Rules of Professional Conduct. Adv. Op. 2014-2.
Op. 2022-1
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Part-Time Assistant Prosecutor’s Conflict of Interest

An examination of the part-time assistant prosecuting attorney’s conflicts of interest must be conducted prior to addressing the imputation question posed. The Board has previously concluded that, based on statutory language, the state is the client of the prosecutor’s office when the office is prosecuting violations of state law. Adv. Ops. 2014-02 and 2019-09. See R.C. 309.08. Conflicts of interest when representing the state can arise for part-time prosecutors if 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, a third person, or by the lawyer’s own personal interest. Prof.Cond.R. 1.7(a)(2). A lawyer’s personal interest cannot dilute the lawyer’s loyalty to a client. Prof.Cond.R. 1.7, cmt. [1].

Here, the part-time assistant prosecutor is representing the state of Ohio in a matter coming before the municipal court judge who is his or her employer in a private practice. The Board concludes the employment relationship, and in particular the assistant prosecutor’s financial interest in maintaining his or her employment at the private law firm, presents a substantial risk that the lawyer’s duties to the state will be materially limited. For example, the assistant prosecutor’s private employment may cause him or her to refrain from strongly advocating a certain position out of concern that the judge will not agree with the position or disapprove of the argument, or the assistant prosecutor may be reluctant to appeal an adverse ruling by the judge.

Once a conflict is identified, the assistant prosecutor must determine if it can be
properly waived by the client under Prof.Cond.R. 1.7(b) or if the representation is prohibited by law. Prof.Cond.R. 1.7(b)(3) and 1.7(c)(1). With respect to the latter question, the Board is of the opinion that Prof. Cond. R. 8.4(e) satisfies the Prof.Cond.R. 1.7(c)(1) prohibition against undertaking representation prohibited by law. Prof.Cond.R. 8.4(e) prohibits a lawyer from stating or implying an ability to improperly influence a government officer. The relationship between an assistant prosecutor and part-time judge in private practice together could be perceived by the public as an opportunity of an assistant prosecutor to improperly influence matters pending before the judge. Thus, an assistant prosecutor’s appearance before his or her employing judge is conduct that implies or may imply an ability to improperly influence a government officer. See Adv. Op. 1994-2. Because the assistant prosecutor’s representation of the state
Op. 2022-1
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before the municipal court judge is prohibited by law, the conflict cannot be waived by the client.

Imputation of Part-Time Prosecutor’s Conflict to the County Prosecuting Attorney

Prof. Cond. R. 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). Prof.Cond.R. 1.11(d)(1) obligates a part-time assistant prosecutor to abide by the general conflict of interest provisions of Prof.Cond.R. 1.7. However, because of the special problems associated with the imputation of conflicts within a governmental entity, the conflicts of the part-time assistant prosecuting attorney are not imputed to other associated government officers or lawyers within the prosecuting attorney’s government office. Prof.Cond.R. 1.11, cmt. [2]. The county prosecuting attorney or another assistant prosecuting attorney may handle matters the part-time assistant prosecuting attorney is prohibited from handling. Nonetheless, it is generally prudent for the county prosecuting attorney to screen the part-time assistant prosecutor from those matters that require an appearance before the municipal court judge. Id.

Prosecuting Attorney’s Conflict of Interest

Although the Board concludes that a conflict of a part-time assistant prosecutor is generally not imputed to the elected prosecutor, the prosecuting attorney should nonetheless analyze his or her own individual conflict under Prof.Cond.R. 1.11(d). The prosecutor should consider whether there is a substantial risk that his or her relationship with the part-time assistant prosecutor will materially limit his or her representation of the public client before the judge. Prof.Cond.R. 1.7(a)(2). Although the county prosecutor’s relationship with the part-time assistant prosecutor is fundamentally different than the assistant prosecutor’s relationship with the judge, the prosecutor has a continuing and possibly even a close mentoring relationship with the assistant prosecutor. If, in the county prosecutor’s professional judgment, his or her conduct in proceedings before the part-time judge will be materially limited due to the employment relationship with the assistant prosecutor, he or she should assign another assistant
Op. 2022-1
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prosecutor, or if none is available, retain or seek appointment of special counsel to handle the matters coming before the part-time municipal court judge.