Ohio Board Advisory Opinion Op 88-015

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 88-15
Issued June 17, 1988
Withdrawn by Adv. Op. 2022-04
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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: A former county public defender, now serving as county prosecutor, may ethically
appoint one of his or her assistants as special prosecutor to handle those cases which were pending
before the public defender’s office at the time he or she served as county public defender. In order
to avoid any appearance of impropriety, the county prosecutor should not be involved in any aspect
of the cases assigned to the special prosecutor.
OPINION: We have before us your request for our opinion regarding your duties as county
prosecutor. You inquire whether you may ethically appoint your assistant as special prosecutor to
handle cases that were pending before the public defenders office while you served as county
public defender. You wish to avoid any possible conflicts or the appearance of impropriety.
Although there are no provisions in the Code of Professional Responsibility that specifically
apply to your request, Canon 9 recommends that lawyers should avoid even the appearance of
professional impropriety. It is our opinion that appointing your assistant to prosecute those cases
which were pending before the public defender's office while you served as public defender is an
ethical way in which to handle the situation and thereby avoid any appearance of impropriety.
The ABA has held that DR 5-105(D), which imputes a lawyer’s disqualification to other
members of his or her law firm, is inapplicable to government lawyers. ABA Comm. on Ethics and
Professional Responsibility, Formal Op. 342 (1975). However, the ABA opinion also states that:

Op. 88-15 2
[a]lthough vicarious disqualification of a government department is not necessary or
wise, the individual lawyer should be screened from any direct or indirect
participation in the matter, and discussion with his colleagues concerning relevant
transactions or set of transactions is prohibited by those rules. Id.
Therefore, once you have appointed a special prosecutor, your paramount concern should be
divorcing yourself from any hint of participation in the affected cases.
In conclusion, it is our opinion and you are so advised that by appointing your assistant to
assume the duty of prosecuting cases that were pending in the public defender’s office while you
served as county public defender, it appears that you have resolved any conflicts of interest or
appearance of impropriety. However, we recommend that you screen yourself from any
participation in the particular cases.
This is an informal, non-binding advisory opinion based upon the facts presented and
limited to questions arising under the Code of Professional Responsibility.