Ohio Board Advisory Opinion Op 94-006

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 94-6
Issued April 15, 1994
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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.]
[Modified- by Opinion 2003-7 on Dec. 5, 2003]
SYLLABUS: It is proper under Ohio's Code of Professional Responsibility for an attorney who
represents criminal defendants in private practice in a county to serve as a special county
prosecutor in another county only under the following conditions: the attorney does not represent
criminal defendants in the court in which he or she serves as special prosecutor; and the attorney
accepts appointment only on an occasional or isolated basis.
OPINION: The question presented is whether it is proper for an attorney who represents criminal
defendants in private practice in a county to serve as a special county prosecutor in another county.
The Board's authority to answer this question is limited to whether such conduct is proper under the
Code of Professional Responsibility.
This is not the first time this Board has been asked to address the propriety of an attorney
prosecuting and defending criminal cases at the same time. In Opinion 88-008, the Board advised
that a county prosecutor, whose duty it is to represent the State of Ohio in criminal cases, may not
represent criminal defendants against the State of Ohio in private practice. That advice was based
upon Disciplinary Rule 5-105 which requires consent to eliminate conflicts of interest between
clients. Such consent cannot be accomplished since the public is a party and cannot consent. See
Ohio SupCt, Bd of Comm’rs on Grievances and Discipline, Op. 88-008 (1988). See also, Ohio
Att’y Gen., Op. 71-050 ("An assistant prosecuting attorney is not permitted to represent clients in
criminal proceedings either within or outside of the county in which he [she] is appointed.").
In this opinion the Board must again consider the propriety of prosecuting and defending criminal
cases, but this time in the context of a defense attorney who is appointed special prosecutor. This
opinion addresses only judicial appointments of special prosecutors to assist county prosecutors
pursuant to Sections 2941.63, 2733.07 and 305.14(A) of the Ohio Revised Code.

Op. 94-6 2
Pertinent to this opinion are Disciplinary Rules 5-105 (A) and (C) and Canon 9 of the Ohio Code of
Professional Responsibility.
DR 5-105(A) A lawyer shall decline proffered employment if the exercise of his
[her] independent professional judgment in behalf of a client will be or is likely to
be adversely affected by the acceptance of the proffered employment, except to the
extent permitted under DR 5-105(C).
DR 5-105(C) In the situations covered by DR 5-105(A) and (B), a lawyer may
represent multiple clients if it is obvious that he [she] can adequately represent the
interest of each and if each consents to the representation after full disclosure of the
possible effect of such representation on the exercise of his [her] independent
professional judgment on behalf of each.
Canon 9 A Lawyer Should Avoid Even the Appearance of Professional
Impropriety
A special county prosecutor is different from a county prosecutor or an assistant county prosecutor
in several ways. A special county prosecutor is appointed by a court to fulfill duties that are limited
to the case to which he or she is appointed. See Ohio Rev. Code Ann. §§ 305.14(A)
(Baldwin1992), 2733.07 (Baldwin 1990), 2941.63 (Baldwin 1992). In contrast, a county
prosecutor is an elected official who appoints his or her assistants. The county prosecutor and his
or her assistant prosecutor have broad prosecutorial duties. See Ohio Rev. Code Ann. §§ 309.01
(Baldwin 1992), 309.06, 309.08 (Baldwin Supp. 1993).
Despite these differences, there are similarities. A prosecutor develops a continuing relationship
with law enforcement authorities. A prosecutor has access to information. A prosecutor,
obviously, has prosecutorial power. A special prosecutor would also develop relationships with
law enforcement authorities; would also have access to information; and would also have
prosecutorial power, albeit limited to a specific case.
The differences and similarities between special prosecutors and prosecutors or assistant
prosecutors render the question presented difficult to answer. The similarities raise ethical
concerns regarding the appearance of impropriety and conflict of interest. Yet, the differences
suggest that the ethical concerns might be diminished through conditions that provide safeguards.

Op. 94-6 3
Several states have permitted attorneys engaged in criminal defense work to serve as special
prosecutors with certain safeguards to eliminate ethical concerns. A Kansas ethics committee
advised that a county attorney may employ a criminal defense lawyer to act as special prosecutor in
a particular criminal case, even though during the case the special prosecutor and the county
attorney would be adverse counsel in other criminal matters. The Kansas view was that the
representation would not influence or reflect on the lawyer's ability to represent criminal defendants
in other matters and it did not give rise to the appearance of impropriety under Canon 9 since the
court could explain to the jurors or jury panel that the lawyer was appointed to act as a special
prosecutor in that case only. Kansas Bar Ass'n, Op. 85-7 (1985). A New York committee advised
that a special district attorney should be considered sui generis and not as a part-time prosecutor in
determining the extent to which a special district attorney may engage in private practice of
criminal law. Under the New York view, a special district attorney may engage in criminal defense
work under certain circumstances without violating DR 5-105 and DR 9-101. The reasons for this
view include the following: a conflict of interest does not arise because an appointed special
district attorney does not present the same potential for public distrust and suspicion as would a
regularly employed prosecutor representing criminal defendants; an appointed special district
attorney is subject to careful scrutiny by the court; and a special prosecutor is appointed for the
purpose of a single case. New York State Bar Ass'n, Op. 564 (1984).
A West Virginia ethics opinion, citing DR 5-101, 5-105, and 7-103, described limited
circumstances in which an attorney maintaining a private criminal defense practice may be
appointed as special prosecutor. The limited circumstances included a geographic location that
precluded special appointment of an attorney from another circuit, a determination by the
appointing judge that it is unfair to require appointees to give up their defense work for low pay,
and the special prosecutor's private client's right to a speedy trial. However, even under the limited
circumstances where appointment is proper, the West Virginia committee required the following
safeguards: the arrangements regarding the special prosecutor's retention of private clients should
be closely monitored by the court; the special prosecutor must not defend criminal cases before the
same venire before which they acted as prosecutor; each client of the special prosecutor must be
made aware of any possible divergent interests and that no special benefit or harm will result to the
client so that each client may freely evaluate the original decision to retain the special prosecutor as
defense counsel; and notice must be given to the regular prosecutors and assistants identifying the
special prosecutor's clients and advising them that the special

Op. 94-6 4
prosecutor is entitled to no more consideration or information than any other defense counsel.
West Virginia State Bar Op. 81-9 (1982).
Nevertheless, the view that it is proper under certain circumstances for a special prosecutor to
privately represent criminal defendants is not unanimous. For example, an Alabama committee
advised against such conduct in response to an inquiry as to whether an attorney engaged in the
private practice of law including criminal defense work could be hired as a special prosecutor on a
case-by-case basis. The Alabama committee referred to Disciplinary Rule 5-105 (D), Section 7 of
the definitions section of their Code of Professional Responsibility, and to Alabama statutes.
Alabama State Bar, Op. 85-01 (1985). An Arizona committee answered in the negative an inquiry
regarding whether an attorney in private practice who represented criminal defendants may serve as
a special prosecutor in a criminal case. The ethical grounds for the committee's view were
summarized as the potential for conflict of interests for the attorney as to the private clients and the
public client, the possibility of disclosure of client confidences, and the likelihood of adverse public
reaction. The Arizona committee cited DR 4-101, 5-101, 5-105 and Canon 9. State Bar of
Arizona, Op. 74-31 (1974).
In conclusion, it is this Board's advice that it is proper under Ohio's Code of Professional
Responsibility for an attorney who represents criminal defendants in private practice in a county to
serve as a special county prosecutor in another county only under the following conditions: the
attorney does not represent criminal defendants in the court in which he or she serves as special
prosecutor; and the attorney accepts appointment only on an occasional or isolated basis. The
Board reaches this conclusion on the basis that neither DR 5-105 nor Canon 9 would be violated.
Disciplinary Rule 5-105 would not be violated since the appointment of a special county prosecutor
by a judge in effect gives public consent to the potential conflict of interest as required by the rule.
Canon 9 would not be violated since the limited scope of a special prosecutor's duties on an
occasional or isolated basis does not create an appearance of impropriety that would outweigh the
public's interest in ensuring that offenses are prosecuted swiftly.
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.