Ohio Board Advisory Opinion Op 91-022

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 91-22
Issued October 18, 1991
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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: Representation of opposing parties by a prosecuting attorney and a criminal defense
attorney who are siblings creates a conflict because the sibling relationship is a personal interest
which could affect the lawyers' exercise of professional judgment on behalf of the clients. DR 5-
101(A). There is additional conflict when these siblings are past law partners and the prosecutor is
receiving money from the former partnership because now, in addition to a personal interest there is
a financial and business interest which might affect the exercise of professional judgment on behalf
of a client. DR 5-101(A). These conflicts cannot be waived by a prosecutor because a prosecutor's
client is the public and thus full disclosure and client consent cannot be obtained. Further, these
combined personal, financial and business interests create an appearance of professional
impropriety that attorneys should avoid. Canon 9.
A criminal defense attorney should not accept employment to represent defendants prosecuted by
his or her sibling in jurisdictions where the prosecutor would have no assistant to appoint and thus
would be compelled to routinely appoint a special prosecutor in order to resolve the conflict. Such
conduct creates a financial and administrative burden and could be considered conduct prejudicial
to the administration of justice. DR 1-102(A) (5). However, in those instances where a prosecutor,
because of a conflict of interest, appoints an assistant prosecutor or a special prosecutor to handle
the case, the prosecutor should screen him/herself from involvement in the case.
OPINION: The questions presented are (1) whether a conflict of interest exists when opposing
parties are represented by a full-time county prosecutor and a criminal defense attorney who are
siblings and former law partners and when the prosecutor still receives money from the former
partnership; and (2) how should the prosecutor proceed in cases in which the sibling is legal
counsel of record.
Op. 91-22 2

Question 1
The Code of Professional Responsibility (Code) does not contain a rule expressly addressing the
question of whether lawyers related by blood (or marriage) may represent opposing parties.
However, several general provisions of the Code do apply to the analysis of this question.
Disciplinary Rule 5-101(A) states that "[e]xcept with the consent of his [her] client after full
disclosure, a lawyer shall not accept employment if the exercise of his [her] professional judgment
on behalf of his [her] client will be or reasonably may be affected by his [her] own financial,
business, property or personal interest." Canon 9 of the Code calls upon attorneys to "avoid even
the appearance of professional impropriety." Ethical Consideration 5-1 aspires that "[t]he
professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the
benefit of his [her] client and free of compromising influences and loyalties. Neither his [her]
personal interests, the interests of other clients, nor the desires of third persons should be permitted
to dilute his [her] loyalty to his [her] client." Ethical Consideration 5-2 advises that "[a] lawyer
should not accept proffered employment if his [her] personal interests or desires will, or there is a
reasonable probability that they will, affect adversely the advice to be given or services to be
rendered the prospective client."
By comparison, the ABA Model Rule 1.8(i) expressly prohibits related lawyers from representing
opposing parties unless there is client consent: "A lawyer related to another lawyer as parent, child,
sibling or spouse shall not represent a client in a representation directly adverse to a person whom
the lawyer knows is represented by the other lawyer except upon consent by the client after
consultation regarding the relationship." According to the Comment to the Model Rule, this rule
applies to related lawyers in different firms. Model Rules of Professional Conduct Rule 1.8
comment (1983) (amended 1987). Thus, this rule may not be directly applicable to situations
involving government lawyers.
Authorities differ in the application of Disciplinary Rule 5-101(A) to the propriety of related
lawyers representing opposing parties. The ABA Standing Committee on Ethics and Professional
Responsibility did not apply a per se prohibition: "No disciplinary rule expressly requires a lawyer
to decline employment if a husband, wife, son, daughter, brother, father, or other close relative
represents the opposing party in negotiation or litigation." ABA, Formal Op. 340 (1975). Several
state ethics committees have also declined
Op. 91-22 3

to apply a per se prohibition on lawyers who are relatives representing opposing parties. See
Alabama State Bar General Counsel and Disciplinary Comm’n, Op. 85-74 (1985) wherein a lawyer
or his law partner may represent a criminal defendant even though the lawyer's brother is assistant
district attorney and may prosecute the same case; Illinois State Bar Ass'n, Op. 783 (1982) wherein
the family relationship of a lawyer with a municipal prosecutor does not per se disqualify the
lawyer from representing defendants prosecuted by the relative and the burden of determining
disqualification falls most heavily with the relative in private practice; Idaho State Bar, Informal
Op. 113 (1983) wherein a father and son may practice as prosecutor and defense counsel in the
same community but the relationship must not impair either lawyer's professional judgment, the
lawyers must avoid the appearance of impropriety, and, the burden lies on the defense attorney to
determine whether conflict exists; and Iowa State Bar Ass'n, Op. 88-12 (1988) wherein a sister of a
county attorney may accept criminal defense work in same county provided no actual conflict
exists and the lawyer discloses to clients and obtains consent of all parties.
However, some opinions are more restrictive. The Ohio State Bar Association has advised that if
an attorney appears as a prosecutor in a case wherein the attorney's brother is the criminal defense
attorney, a question of impropriety is presented by the relationship. Ohio State Bar Ass'n. Informal
Op. 87-5 (1987). The committee suggested that the relationship could be considered a "personal
interest” for purposes of the rules and advised that a prosecutor as a public employee could not
waive the conflict and should not participate in matters involving the prosecutor's office when the
brother is opposing counsel. Id. The Ohio State Bar Association has also advised that a wife as
assistant city solicitor could not represent the city in any proceeding in which her husband
represented the opposing party, since the client, the public, cannot consent. Ohio State Bar Ass'n,
Op. 80-10 (1980). See also Virginia State Bar, Op. 190 (1985) wherein a lawyer may not accept
employment when the opposing party is represented by a member of the lawyer's nuclear family
even if the client consents after full disclosure, but a lawyer who is not part of the nuclear family
and who is in the same household or in a highly intimate relationship may continue representation
after obtaining client consent; and Maryland State Bar Ass'n, Op.85-79 (1985) wherein a lawyer
whose father is a county state's attorney may not try any criminal cases against assistants in his
father's office.
Op. 91-22 4

Loyalty to a client must remain an uncompromised component of the attorney-client relationship.
Personal, financial, business and property interests of a lawyer can erode this duty of loyalty. A
prosecutor serves an important public function of prosecuting crime to protect the public and to
promote justice in our society. Therefore, it is important for the public to feel confident that there
is no conflict and no impropriety in the representation.
Although Ohio's Code does not contain a disciplinary rule that makes it a per se violation for
related attorneys to represent opposing parties, the language of DR 5-101(A) sets forth that if the
relationship of the opposing attorneys is such that the exercise of an attorney's professional
judgment on behalf of a client will be or reasonably may be affected by the attorney's own
financial, business, property or personal interest then employment should not be accepted unless
there is client consent after full disclosure. Thus, any financial, business, property and/or personal
interest which creates a conflict in fulfilling this professional duty must be acknowledged and
representation must be not be undertaken unless there is full disclosure and client consent.
A sibling relationship does create a personal interest which could affect the lawyers' professional
judgment on behalf of the clients. Further, a relationship wherein a prosecutor is receiving money
from a past partnership with a defense attorney creates a financial and business interest which could
affect the lawyers' professional judgment on behalf of the clients. Such conflicts are governed by
DR 5-101(A) which would require clients' consent after full disclosure. However, a prosecutor's
client is the public and thus consent cannot be obtained. See Ohio Sup.Ct, Bd. of Comm’rs on
Grievances and Discipline, Ops. 88-13 (1988) and 88-8 (1988). Further, these combined personal
financial and business interests create an appearance of impropriety.
Therefore, the Board's opinion is that representation of opposing parties by a prosecuting attorney
and a criminal defense attorney who are siblings creates a conflict because the sibling relationship
is a personal interest which could affect the lawyers' exercise of professional judgment on behalf of
the clients. DR 5-101(A). There is additional conflict when these siblings are past law partners
and the prosecutor is receiving money from the former partnership because now, in addition to a
personal interest there is a financial and business interest which might affect the exercise of
professional judgment on behalf of a client. DR 5-101(A). These conflicts cannot be waived by a
prosecutor because a prosecutor's client is the public and thus full disclosure and client consent
cannot be obtained. Further, these combined personal, financial and business interests create an
appearance of professional impropriety that attorneys should avoid. Canon 9.
Op. 91-22 5

Question 2
The Board has previously advised that a former county public defender, now serving as county
prosecutor, may appoint one of his or her assistants as special prosecutor to handle those cases
which were pending before the public defender's office when he/she served as county public
defender so long as the prosecutor screens him/herself from any participation in the cases. Ohio
Sup.Ct, Bd. of Comm’rs on Grievances and Discipline, Op. 88-15 (1988). This advice could be
extended to the question of how the prosecutor should proceed when a conflict of interest arises
such as when the legal counsel of record is the prosecutor's sibling and former partner and the
prosecutor is receiving money from the former partnership. However, the need to routinely appoint
an assistant prosecutor or a special prosecutor could become a burden on the judicial system. For
example, in some jurisdictions there might be no assistant prosecutors to appoint, requiring that a
special prosecutor always be appointed. Thus, the Board's advice is that a criminal defense
attorney should not accept employment to represent defendants prosecuted by his or her sibling in
jurisdictions where the prosecutor would have no assistant to appoint and thus would be compelled
to routinely appoint a special prosecutor. Such conduct creates a financial and administrative
burden and could be considered conduct prejudicial to the administration of justice. DR 1-102 (A)
(5). However, in those instances where a prosecutor, because of a conflict of interest, appoints an
assistant prosecutor or a special prosecutor to handle the case, the prosecutor should screen
him/herself from involvement in the case.
As a final note, both prosecutors and criminal defense attorneys should be aware of Division A of
Section 120.39 of the Ohio Revised Code which, with an exception states, “counsel appointed by
the court, co-counsel appointed to assist the state public defender or a county or joint county public
defender, and any public defender, county public defender, or joint county defender, or member of
their offices, shall not be a partner or employee of any prosecuting attorney, city director of law,
village solicitor, or similar chief legal officer.” OHIO REV. CODE ANN. §120.39 (A) (Baldwin
1987).
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions regarding
the application of the Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code of Professional
Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.