Ohio Board Advisory Opinion Op 89-023

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 89-23
Issued August 18, 1989
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: An assistant county prosecutor, who serves as a city police officer within the same
county, must choose between the two positions only if one position is subordinate to the other. The
assistant county prosecutor may not prosecute any case in which he may be called to testify as a
witness. The assistant county prosecutor should avoid any appearance of impropriety and act in a
manner which promotes public confidence in the legal profession.
OPINION: We have before us your request for an advisory opinion on whether the Code of
Professional Responsibility prohibits an attorney from simultaneously holding the positions of
assistant county prosecutor and city police officer within the same county.
The ABA Standards relating to the prosecution function state that an important step in achieving
the goal of professionalism is to make the position of prosecutor a full-time occupation for its
holder. ABA Standards Relating to the Prosecution Function 58 (1971). However, the majority of
prosecutors in the United States are not full-time positions. Wolfram, Modern Legal Ethics 454-
455 (1986).
Dual employment of any kind must be evaluated on a case by case basis. In this instance, if the
positions of assistant county prosecutor and city police officer are subordinate to, or in any way a
check upon each other, then the lawyer involved must choose between the two positions. See, e.g.,
State ex rel. Attorney General v. Gebert, 12 Ohio C.C. (n.s.) 274 (C.C. Franklin Co., 1909).
Furthermore, if it is physically impossible for one person to carry out the duties of both positions,
that person must choose one position to pursue.
An attorney general opinion suggests several other variables which should also be considered when
determining the

Op. 89-23 2
compatibility of two positions. These include:
(1) the degree of remoteness of a potential conflict,
(2) the ability or inability of the individual to remove himself
from the conflict,
(3) whether the individual exercises decision making authority in
both positions,
(4) whether the potential conflict involves primary functions of
each position.
Ohio Atty. Gen. Op. 79-111 (1979).
Although county prosecutor and city policeman are not per se incompatible positions, considering
these variables in any particular instance may require a different result. There are also situations
where the prosecutor may have to decline a particular case. For example, under DR 5-101(B) and
DR 5-102 (A), lawyers are required to withdraw from representation when they are aware of the
possibility of being called as a witness in the same case. Therefore, it would be a conflict for an
assistant prosecuting attorney to be called as a police witness in a case he is prosecuting. The rules
of an advocate and witness are inconsistent because the advocate's function is to argue the cause of
another while the witness' function is to state the facts objectively. Code of Professional
Responsibility, EC 5-9.
We agree, however, that DR 5-101 does not require a person holding both positions to be excused
from a case simply because an officer from the city police force of which he or she is a member
may be called to testify.
Canon 9 recommends that lawyers avoid even the appearance of professional impropriety. When
ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that
promotes public confidence in the integrity of the legal profession. Code of Professional
Responsibility, EC 9-2.
In conclusion, it is our opinion and you are so advised that the positions of county prosecutor and
city police office are not per se incompatible. Each case must, however, be evaluated individually.
If one position is a check on, or subordinate to the other, for example, a conflict exists. Further, a
conflict could exist in a particular case even if the positions are not inherently incompatible. Any
time a case presents a conflict or the appearance of impropriety, the prosecutor should remove him
or herself from the case.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Professional Responsibility.