Ohio Board Advisory Opinion Op. 19-03

OCR transcription; preserved printed pages are authoritative

e> Ohio Board of Professional Conduct

OPINION 2019-3
Issued April 5, 2019

Representation of Governmental Clients and Criminal Defendants in Unrelated
Matters

SYLLABUS: A lawyer may not represent a municipality in real estate matters while
another lawyer associated in the same firm represents criminal defendants who are
prosecuted in the municipal court of the same municipality or are the subject of

investigations by police officers employed by the same municipality.

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.

e> Ohio Board of Professional Conduct

65 SOUTH FRONT STREET, 5™ FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

HON. JOHN W. WISE RICHARD A. DOVE
CHAIR DIRECTOR
PATRICIA A. WISE D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

OPINION 2019-3
Issued April 5, 2019

Representation of Governmental Clients and Criminal Defendants in Unrelated
Matters

SYLLABUS: A lawyer may not represent a municipality in real estate matters while
another lawyer associated in the same firm represents criminal defendants who are
prosecuted in the municipal court of the same municipality or are the subject of

investigations by police officers employed by the same municipality.
QUESTIONS PRESENTED:

(1) Whether a lawyer associated in a firm may represent a municipality in real estate
matters while another lawyer associated in the same firm represents criminal

defendants prosecuted in the municipal court of the same municipality?

(2) Whether a lawyer associated in a firm may represent a municipality in real estate
matters while another lawyer associated in the same firm represents criminal
defendants in matters investigated by police officers employed by the same

municipality, and heard in another court?

APPLICABLE RULES: Prof.Cond.R. 1.7, 1.10

Op. 2019-3 2

OPINION:

Many municipalities in Ohio, whether classified as a city or village, outsource legal
matters to private law firms. The services that private law firms provide to municipal
clients range from ongoing availability to provide advice in particular areas of the law to
accepting special retainers for representation in complex litigation. Many of these private
law firms have diverse practice areas and may encounter clients wishing to oppose the
municipal client in other matters. The analysis of whether or not a law firm may accept
a client opposed to a municipal client begins with a general conflict analysis. A firm must

also consider the rules related to imputation of conflicts of interests.

A lawyer's acceptance of representation of a client creates a conflict of interest if
the representation of that client will be directly adverse to another current client or 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)(1)-(2). Because the principles of loyalty and
independent judgment are fundamental to the client-lawyer relationship, neither the
interests of other clients nor the lawyer’s personal interest should be permitted to dilute

the lawyer’s loyalty to a client. Prof.Cond.R. 1.7, cmt. [1].

While lawyers are associated in a firm, none of them may represent a client when
the lawyer knows that any one of them practicing alone would be prohibited from doing
so by Prof.Cond.R. 1.7. Prof.Cond.R. 1.10(a). The imputed disqualification rule gives
effect to the principle of loyalty to the client in the context of lawyers practicing in a firm.
Prof.Cond.R. 1.10, cmt [2]. A firm of lawyers is essentially treated as one lawyer for

purposes of a conflict analysis. Id.

In analyzing a conflict of interest under Prof.Cond.R. 1.7, the first consideration is
whether a lawyer or law firm’s representation of a client will result in direct adversity
between current clients. In litigation, the representation of one client is directly adverse
when one of the clients is asserting a claim against another client of the lawyer (or law
firm) in another proceeding. Prof.Cond.R. 1.7, cmt. [11]. A lawyer may not act as an
advocate in one proceeding against a person (or an organization) the lawyer or the law
firm represents in some other matter, even though the matters are wholly unrelated. Id.

In the first question presented, the law firm would represent criminal defendants and

Op. 2019-3 3

advocate against their prosecution in opposition to the objectives of the law firm’s other
client, the municipality. In the second question posed, the municipality would remain a
current client of the law firm and the law firm would represent criminal defendants
prosecuted on behalf of the public with municipal police officer employees as material
witnesses in the criminal matter. The law firm must keep in mind that a directly adverse
conflict may also arise when effective representation requires a lawyer to cross-examine
another client, represented in a different matter, who appears as a witness in a suit.! Id.
Thus, in either situation, as acknowledged by the firm in its request for an advisory
opinion, the law firm’s current clients would be directly adverse. Pursuant to
Prof.Cond.R. 1.10(a), the direct adversity conflict remains imputed to other lawyers in the

law firm.

The second consideration is whether there is a substantial risk that the lawyer or
law firm’s ability to consider, recommend, or carry out an appropriate course of action
for a client will be materially limited by the lawyer or law firm’s responsibilities to
another client or by the lawyer or law firm’s own personal interest. By statute, a
municipality has the right to establish local ordinances, maintain the peace and property
within the municipality’s jurisdiction, organize and maintain police and fire
departments, and maintain a municipal court within the municipality’s jurisdiction.’
Consequently, a municipality has an interest in the prosecution of violations of the
municipality’s ordinances. Conversely, a criminal defendant being prosecuted by a
municipality has an interest in preserving his or her constitutional rights and avoiding a
criminal conviction if at all possible. A lawyer or firm representing a criminal defendant
must have the ability to vigorously oppose the prosecution of the criminal defendant.
This opposition may be accomplished through a variety of measures to include argument
that a particular municipal ordinance is unconstitutional or that the municipality failed
to properly train municipal police officer employees resulting in either the systematic or
an individual officer’s failures to properly apply the law or follow procedures. In
advancing these types of arguments, the lawyer must also consider his or her ability to
effectively cross-examine the municipal police officers involved in the matter. There is a

substantial risk that the lawyer or other lawyers in the law firm may conduct a

1 An organizational client acts through its constituents, including its officers, directors, employees,
shareholders or those in equivalent positions if the organization is not a corporation. Prof.Cond.R. 1.13 (a)
& cmt. [1].

2 R.C. §§ 715.44, 715.49, 715.03, 715.67, 715.05, and 715.16.

Op. 2019-3 4

deferential, rather than through, cross-examination of municipal employees related to the
criminal matter. In addition, the lawyer or law firm’s financial interest in maintaining a
continuing attorney-client relationship with the municipality cannot be permitted to have
an adverse effect on other current clients. Prof.Cond.R. 1.7, cmt. [20]. The Board is of the
view that there is a substantial risk present in this situation that the duty owed to the law
firm’s criminal defendant may be compromised. Thus, a material limitation conflict

exists that also is imputed to other lawyers in the law firm per Prof.Cond.R. 1.10(a).°

Where a conflict, imputed or otherwise, exists, Prof.Cond.R. 1.7 and Prof.Cond.R.
1.10(e) provide an avenue for representation to continue or be undertaken. This avenue
requires the lawyer to determine that he or she can provide competent and diligent
representation to each client, determine that the representation is not prohibited by law
or does not involve the assertion of competing client claims in the same proceeding, and

obtain informed, written consent from each client.

A central question that must be addressed is whether a municipality, essentially
tasked with criminal prosecutions on behalf of the public, can consent to representation
of a criminal defendant burdened by a conflict. Over time a broad doctrine has developed
commonly referred to as the “government cannot consent” rule. The initial impetus for
the rule relates back to the American Bar Association’s early advisory opinions. ABA
Formal Opinion 16 (1929); ABA Formal Opinion 34 (1931); ABA Formal Opinion 77
(1932). When discussing whether a member of a law firm was barred from representing
criminal defendants in cases prosecuted by another member of the firm who was also a
part-time prosecutor, the committee stated “[n]o question of consent can be involved as
the public is concerned and it cannot consent.” ABA Op. 16 (1929). This Board’s prior
Advisory Opinions and some Ohio case law acknowledges the concept that those charged
with the authority to prosecute are deemed to have the citizens of the state of Ohio as a

client and are unable to consent to representation burdened by a conflict.4 As such, Ohio

3 The Board acknowledges that in situations with similar facts, the provisions of Prof.Cond.R. 1.11 may
provide for a different outcome related to the imputation of conflicts to other lawyers in a firm who are
engaged in private practice with a current or former government lawyer. Adv. Op. 2014-2. However, the
Board must narrowly interpret Prof.Cond.R. 1.11 and conclude that it is inapplicable in this instance
because the facts as presented here do not involve any current or former government lawyers.

4 Adv. Op. 2014-2 (citing Adv. Op. 88-08)(concluding that “if a part-time prosecutor is authorized by
agreement to prosecute cases on behalf of a municipal corporation, he or she is also prohibited from
representing criminal defendants against that municipal corporation. Such criminal defense representation

Op. 2019-3 5

has been grouped with other jurisdictions, such as West Virginia and New Jersey that
adhere to a “per se” government non-consent rule. Bennett, Cohen & Gunnarsson,
Annotated Model Rules of Professional Conduct, 153 (8 ed. 2015).

The referenced prior Board opinions invoking this concept relate to lawyers who
are either elected, appointed, or hired but nonetheless are specifically employed by the
government on a part-time or full-time basis to prosecute violations of state or municipal
law. Here, the lawyer and law firm are not specifically employed in the public sector as
government lawyers, but are retained as private counsel by a client tasked with authority
to enforce and prosecute criminal violations of municipal ordinances. Although the
Board is unable to issue opinions on questions of law and despite the slightly differing
facts here, due to the history outlined above, the Board must caution lawyers and firms
that requesting informed written consent from governmental clients representing public
interests may lead to a judicial finding that a government entity in this context is unable
to provide consent to the conduct. Assuming arguendo the municipality concerned has
the ability to consent to the conflicted representation, the Board is not inclined to advise
that the law firm seek the written informed consent of the municipality or criminal
defendant due to the lingering doubts of the lawyer and law firm’s ability to provide
competent and diligent representation to each affected client because of the competing
obligations outlined above. See Prof. Cond.R. 1.7(b)(1).

CONCLUSION: A lawyer’s acceptance of representation of a client creates a conflict of
interest if the representation of that client will be directly adverse to another current client
or 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. Here, the conflict stems from both the direct adversity of
the current clients as well as the substantial risk that the lawyer or law firm’s obligation
to the municipal client would materially limit the representation of the criminal
defendant. Despite the ability of a lawyer or law firm to generally request informed
written consent to ameliorate conflicts in some instances, the Board recommends
forgoing seeking informed written consent, in this context, from the municipal client and

criminal defendant clients. The ability of the municipal client to consent to the

is a conflict of interest under Prof.Cond.R. 1.7(a) that cannot be ameliorated through Prof.Cond.R. 1.7(b)”);
Melling v. Stralka, 8 Dist. Cuyahoga No. 45622, 1983 WL 3092 (June 16, 1983)(Markus, J., dissenting).

Op. 2019-3 6

representation is questionable due to the public interest involved and questions about the
lawyer and law firm’s ability to provide competent and diligent representation to all

affected clients when faced with these types of conflicting obligations.