Ohio Board Advisory Opinion Op. 22-01

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.
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.

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
CHAIR
RICHARD A. DOVE
DIRECTOR
HON. D. CHRIS COOK
VICE- CHAIR
D. ALLAN ASBURY
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 2
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 3
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 4
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.