If a former public defender becomes the county prosecutor, can the office prosecute the defender's old cases?

Plain-English summary

A lawyer who had been the county public defender became the county prosecuting attorney and asked whether the office could now prosecute cases that the defender's office had open during the lawyer's tenure there. The Board worked through the prosecutor's own conflicts before reaching imputation.

For defendants the prosecutor personally represented, Prof.Cond.R. 1.11(d)(1) routes the analysis through Prof.Cond.R. 1.9: the prosecutor may not prosecute a former client in the same or a substantially related matter without informed written consent from both the defendant and the government agency (Prof.Cond.R. 1.9(a), 1.11(d)(2)(i)). For other clients of the defender's office whom the prosecutor did not personally represent, Prof.Cond.R. 1.9(b) controls, and the prosecutor is disqualified only if he or she actually acquired protected information about that client while at the office (Prof.Cond.R. 1.9, cmt. [5]). The Board treated a public defender office as a law firm (Prof.Cond.R. 1.0(c)). It said the prosecutor must assess each case individually: if the defender office shared files freely or regularly discussed matters, it is reasonable to assume the prosecutor obtained protected information and is disqualified absent consent; if the prosecutor had access only to his or her own limited files and did not discuss other lawyers' matters, the prosecutor is not disqualified.

On imputation, the Board applied Prof.Cond.R. 1.11 as the exclusive rule and Prof.Cond.R. 1.11, cmt. [2]: the prosecutor's conflicts are not imputed to other lawyers in the office, so another assistant may handle matters the prosecutor cannot. The Board added that, although not strictly required, the office's best practice is to assign every matter the defender's office handled during the prosecutor's tenure to an assistant and to screen the prosecutor, to preserve the confidence of defendants and the public. A footnote limits the opinion to cases the defender's office had open at the transition and reminds the reader of the continuing Prof.Cond.R. 1.9(c) bar on using a former client's information to that client's disadvantage.

In practice

Under this opinion, the former public defender now serving as prosecutor must run a case-by-case Prof.Cond.R. 1.9 analysis on every matter the defender's office handled during the prosecutor's tenure. Per the opinion, the prosecutor is personally disqualified, absent informed written consent, where he or she represented the defendant in the same or a substantially related matter, or acquired protected information about another of the office's clients. The opinion concludes that any such personal disqualification is not imputed to other assistants under Prof.Cond.R. 1.11, cmt. [2], so the office may prosecute through another lawyer, and that the office's best practice is to assign those matters to an assistant and screen the prosecutor.

Common questions

Q: Can a former public defender, now the prosecutor, prosecute a defendant he or she personally represented at the defender's office?

A: Not without consent. The opinion concludes that under Prof.Cond.R. 1.9(a) and 1.11(d)(2)(i), the prosecutor may not prosecute a former client in the same or a substantially related matter unless both the defendant and the government agency give informed written consent.

Q: What about defendants the prosecutor did not personally represent at the defender's office?

A: Per the opinion, Prof.Cond.R. 1.9(b) disqualifies the prosecutor only if he or she actually acquired protected information about that client while at the office; the prosecutor must assess each case based on how files and case discussions were shared.

Q: Does the prosecutor's conflict disqualify the whole office?

A: No. The opinion concludes the conflict is not imputed to other assistant prosecutors under Prof.Cond.R. 1.11, cmt. [2], though the Board states the best practice is to assign affected matters to an assistant and screen the prosecutor.

Background and rules framework

The opinion applies Prof.Cond.R. 1.7 (concurrent conflicts; Model Rule 1.7), Prof.Cond.R. 1.9 (duties to former clients; Model Rule 1.9), and Prof.Cond.R. 1.11 (current and former government lawyers; Model Rule 1.11), and relies on the definitions in Prof.Cond.R. 1.0(c) (firm, including a public defender office) and 1.0(n) (substantially related matter).

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 1.9(a), 1.9(b), 1.9(c) and cmts. [2], [5], [6] (Model Rule 1.9)
• Ohio Prof.Cond.R. 1.11(d) and cmt. [2] (Model Rule 1.11)
• Ohio Prof.Cond.R. 1.10(f); 1.0(c), 1.0(n) (imputation; definitions)

Other opinions cited:

• Ohio Adv. Op. 2022-01: Prof.Cond.R. 1.11 as the exclusive government-lawyer imputation rule
• ABA, A Legislative History: The Development of the ABA Model Rules of Professional Conduct 1982-2013, at 264 (2013)

See also

• Ohio BPC Op. 1988-015: Former Public Defender as Prosecutor and Special Prosecutor
• Ohio BPC Op. 2022-001: Imputation of a Part-Time Assistant Prosecutor's Conflict
• Ohio BPC Op. 1989-013: Representing a Client Against a Former Client and Imputation

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2022/06/Adv.-Op.-2022-04-Final.pdf

Original opinion text

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

OPINION 2022-04
Issued June 10, 2022
Withdraws Adv. Op. 1988-15

Imputation of County Prosecuting Attorney’s Former Client and Firm Conflicts to an Assistant Prosecuting Attorney

SYLLABUS: Absent informed written consent, a county prosecuting attorney must appoint an assistant prosecuting attorney to handle cases that were assigned to the public defender’s office during the county prosecuting attorney’s former employment with the office and implement appropriate screening measures if the county prosecuting attorney (1) personally represented the defendant in the same or substantially related matter, or (2) obtained protected information about other clients of the public defender’s office.

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 2022-04
Issued June 10, 2022
Withdraws Adv. Op. 1988-15

Imputation of County Prosecuting Attorney’s Former Client and Firm Conflicts to an Assistant Prosecuting Attorney

SYLLABUS: Absent informed written consent, a county prosecuting attorney must appoint an assistant prosecuting attorney to handle cases that were assigned to the public defender’s office during the county prosecuting attorney’s former employment with the office and implement appropriate screening measures if the county prosecuting attorney (1) personally represented the defendant in the same or substantially related matter, or (2) obtained protected information about other clients of the public defender’s office.

QUESTION PRESENTED:

May a county prosecuting attorney, who previously served as the county public defender, appoint an assistant prosecuting attorney to handle cases that were assigned to the public defender’s office during the county prosecutor’s former employment?

APPLICABLE RULES: Prof.Cond.R. 1.7, 1.9, 1.11.

OPINION:

An examination of the county prosecuting attorney’s conflicts of interest must be conducted prior to addressing the imputation question posed.
Op. 2022-04
2

Former Clients of the Prosecuting Attorney

Prof.Cond.R. 1.11(d)(1) obligates a county prosecuting attorney to abide by the general conflict of interest provisions of Prof.Cond.R. 1.9 regarding former clients. If the county prosecuting attorney formerly represented a defendant in the same or a substantially related matter while employed at the public defender’s office, then the prosecutor is prohibited from prosecuting the defendant in the same or substantially related matter unless both the defendant and the government agency give informed written consent. Prof.Cond.R. 1.9(a) and 1.11(d)(2)(i). A “substantially related matter” is defined as one that involves the same transaction or legal dispute or one in which there is a substantial risk that confidential factual information normally obtained in that type of matter would materially advance the position of another client in a subsequent matter. Prof.Cond. R. 1.0(n). In this context, any confidential factual information obtained from a defendant that could advance the position of the prosecutor’s office in other matters would serve to disqualify the county prosecutor from personally prosecuting a defendant without consent.

Clients of the Public Defender’s Office but not Former Clients of the County Prosecuting Attorney

Prof.Cond.R. 1.11(d)(1) also requires the county prosecuting attorney to determine whether he or she is prohibited from personally prosecuting a defendant whose case was assigned to another public defender during the prosecutor’s tenure as public defender. Prof.Cond.R. 1.9(b) indicates that, absent informed written consent, a lawyer who was previously associated with a firm cannot represent another client in the same or substantially related matter when the clients’ interests are materially adverse and when the lawyer previously acquired information about the former firm’s client that is protected by Prof.Cond.R. 1.6 or 1.9(c).1 In relation to the clients of a lawyer’s former firm, the comments to Prof.Cond.R. 1.9 explain that a lawyer is disqualified only when he or she acquired actual knowledge of information protected by Rules 1.6 and 1.9(c). Prof.Cond.R. 1.9, cmt. [5]. If a lawyer acquired no knowledge or information relating to a specific client of the former firm, neither the lawyer nor the lawyer’s new firm is

1 Prof.Cond.R. 1.0(c) defines a public defender office as a law firm.
Op. 2022-04
3

prohibited from representing another client in the same or substantially related matter. Id.

The interests of a county prosecuting attorney and his or her client, the state of Ohio, are materially adverse to clients of the public defender’s office. Therefore, the prosecutor must complete an individual assessment in each case that was assigned to the public defender’s office during his or her tenure as public defender to determine whether he or she obtained protected client information. A lawyer’s involvement in a matter can be a question of degree and depends on the particular facts of a situation. Id. at cmt. [2], [6]. If lawyers in the public defender’s office had access to all client files or the lawyers regularly discussed client matters, it is reasonable to assume that the county prosecuting attorney, while serving as the public defender, obtained protected information regarding clients of the public defender’s office. In that circumstance, the prosecutor is prohibited from personally prosecuting a defendant whose case was assigned to the public defender’s office during the prosecutor’s tenure in that office, unless that defendant provides informed written consent.

If, while employed as the public defender, the county prosecuting attorney had access to only his or her own or limited client files and did not participate in discussion of other public defenders’ client matters, then it is reasonable to assume that the prosecuting attorney did not obtain protected information regarding other clients of the public defender’s office. In that scenario, the county prosecutor is not prohibited from prosecuting an individual who was represented by another public defender during the prosecutor’s tenure as public defender.2

2 This opinion addresses only ongoing cases assigned to the public defender’s office at the time of the lawyer’s transition from public defender to county prosecutor. It does not address subsequent prosecutions in unrelated matters of a former client of the county prosecutor or of other individuals who were clients of the public defender’s office during the county prosecutor’s tenure but not personally represented by the prosecuting attorney. If a subsequent prosecution of one of the individuals referenced above is necessary, the county prosecutor must complete another conflict analysis pursuant to Prof.Cond.R. 1.11(d) and 1.9. The reader is reminded of the general prohibitions contained in Prof.Cond.R. 1.9(c) related to the use of information obtained from a prior representation to the disadvantage of a former client or a former client of a former firm.
Op. 2022-04
4

Imputation of Conflicts of the County Prosecuting Attorney to Assistant Prosecuting Attorneys

As the Board has previously indicated, 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.” Adv. Op. 2022-01; ABA Ctr. for Prof’l Responsibility, A Legislative History: The Development of the ABA Model Rules of Professional Conduct 1982-2013, at 264 (2013). See also Prof.Cond.R. 1.10(f). Because of the special problems associated with the imputation of conflicts within a governmental entity, the conflicts of the county prosecuting attorney are not imputed to other associated government officers or lawyers within the prosecuting attorney’s office. Prof.Cond.R. 1.11, cmt. [2]. Thus, another assistant prosecuting attorney may handle matters the county prosecuting attorney is prohibited from handling. Nonetheless, it is generally prudent for the office to screen the county prosecuting attorney from those matters that he or she is prohibited from handling due to his or her former employment with the public defender’s office. Id. Although the county prosecuting attorney may not be required under the rules to assign every matter handled by the public defender’s office during his or her former employment to an assistant prosecuting attorney, the Board believes the best practice is to do so out of an abundance of caution and in the interest of preserving the confidence of defendants and the public.