Ohio Board Advisory Opinion Op 10-005

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.supremecourt.ohio.gov
OFFICE OF SECRETARY
OPINION 2010-5
Issued August 13, 2010
SYLLABUS: The assistant state public defenders in the state public defender’s central
appellate office located in the state’s capital city and the assistant state public defenders
in the state public defender’s trial branch offices located in four different counties are not
automatically considered lawyers associated in a firm for purposes of imputing conflicts
of interest under Prof. Cond. Rule 1.10(a). If an appellate state public defender does not
provide assistance to a trial branch state public defender in a trial matter, there is no
ethical reason to impute a conflict of interest when an appellate attorney is asked to
conduct a merit review, prosecute an appeal, or pursue a postconviction remedy asserting
ineffectiveness of trial counsel in that matter. The appellate state public defenders are
not associated with the trial branch state public defenders in that matter. But, if an
appellate state public defender does provide assistance to a trial branch state public
defender in a trial matter, it would be appropriate under the ethical rules to impute a
conflict of interest when an appellate attorney is asked to conduct a merit review,
prosecute an appeal, or pursue a postconviction remedy asserting ineffectiveness of trial
counsel in that matter. The appellate state public defenders are associated with the trial
branch state public defenders in that matter.
There is not a per se conflict of interest when an appellate assistant state public defender
in the central appellate office conducts a merit review, asserts an appeal, or pursues a
postconviction remedy asserting that another assistant state public defender in a branch
office rendered ineffective assistance at trial. Under Prof. Cond. Rule 1.7(a)(2), whether
an appellate state public defender in the central office has a conflict of interest in
asserting ineffectiveness of an assistant state public defender in a trial branch office will
depend upon whether there is a substantial risk that the appellate lawyer’s ability to
consider, recommend, or carry out an appropriate course of action for the defendant is
limited by the appellate lawyer’s responsibilities to another client, a former client, or a
third person, or by the lawyer’s own personal interests. This will always be a factual
determination in each matter. If an appellate assistant state public defender in the central
office has a significant close personal relationship or unyielding institutional loyalty to
the trial assistant state public defender, it is likely there is a substantial risk of a material
limitation on the appellate representation in that matter. Or, if an appellate assistant state
public defender in the central office has provided assistance to an assistant state public

Op. 2010-5 2
defender in a trial matter, it is likely that there is a substantial risk that the appellate
lawyer’s ability to consider, recommend, or carry out an appropriate course of action for
that client will be materially limited by the appellate lawyer’s own personal interest
arising from involvement in the trial matter, when asked to conduct a merit review,
prosecute an appeal, or pursue a postconviction remedy asserting ineffectiveness of trial
counsel in that matter.
OPINION: This opinion addresses conflicts of interest, and the imputation of conflicts
of interest, as to the lawyers in the state public defender’s office.
Are the assistant state public defenders in the state public defender’s
central appellate office located in the state’s capital city and the assistant
state public defenders in the state public defender’s trial branch offices
located in four different counties considered lawyers associated in a firm
for purposes of imputing conflicts of interest under Prof. Cond. Rule
1.10(a)?
Is there a conflict of interest when an appellate assistant state public
defender in the central appellate office conducts a merit review, prosecutes
an appeal, or pursues a postconviction remedy asserting that another
assistant state public defender in a trial branch office rendered ineffective
assistance at trial?
Introduction
The State Public Defender of Ohio provides indigent representation pursuant to the
statutory powers set forth in R.C. 120.06. The State Public Defender is appointed by the
Ohio Public Defender Commission. R.C. 120.03(A). The State Public Defender
appoints assistant state public defenders. R.C. 120.04(A)(2).
The State Public Defender is required to maintain a central office in Columbus and to
establish an office to handle appeal and postconviction matters. R.C. 120.04(B)(1), R.C.
120.04(B)(12). In addition to maintaining a central office, the State Public Defender has
established branch offices in four different counties. The branch offices provide only
trial representation. The central office provides appellate representation and also has a
trial division.
This opinion addresses two questions that arise from the State Public Defender having a
central office and branch offices. The first issue is whether, under the Ohio Rules of
Professional Conduct, the assistant state public defenders in the central office and in the
branch trial offices are considered lawyers associated in a firm for purposes of imputation
of conflicts of interest. The second issue is whether there is a conflict of interest when an
assistant state public defender in the central appellate office conducts a merit review,
prosecutes an appeal, or pursues a postconviction remedy asserting ineffectiveness of an
assistant state public defender from a trial branch office of the state public defender.

Op. 2010-5 3
This opinion does not address conflicts of interest among the appellate assistant state
public defenders in the central office and the assistant state public defenders in the trial
division at the central office. According to the requester, the appellate assistant state
public defenders in the central office would not conduct a merit review, prosecute an
appeal, or pursue a postconviction remedy asserting that an assistant state public defender
in the trial division at the central office rendered ineffective assistance at trial.
Although not dispositive of the issues in this opinion, the Board notes that indigent
representation is also provided by some Ohio counties. Under Ohio’s statutory scheme
for indigent representation, any county may establish a county public defender’s or a joint
county defender’s office; or may adopt a resolution to pay counsel who is either
personally selected by the indigent person or appointed by the court; or in lieu of
establishing these offices or adopting a resolution to pay court appointed or selected
counsel, the county may contract with the State Public Defender for the State Public
Defender’s representation of indigent persons. R.C. 120.13-120.17, 120.23-120.27,
120.33(A), 120.33(B), 120.04(C)(7). The State Public Defender supervises the
compliance of county and joint county public defender offices, and the county appointed
counsel system with the Ohio Public Defender Commission’s rules. R.C. 120.04(B)(3).
The State Public Defender provides technical aid and assistance including representation
and assistance on appeals. R.C. 120.04(B)(13).
Imputation of conflicts of interest when State Public Defender has a
central appellate office and branch trial offices
Under the Ohio Rules of Professional Conduct, conflicts of interest are imputed among
lawyers associated in a law firm, unless an exception within the rule applies. Prof. Cond.
Rule 1.10(a) states: “While lawyers are associated in a firm, none of them shall represent
a client when the lawyer knows or reasonably should know that any one of them
practicing alone would be prohibited from doing so by Rule 1.7 or 1.9, unless the
prohibition is based on a personal interest of the prohibited lawyer and does not present a
significant risk of materially limiting the representation of the client by the remaining
lawyers in the firm.”
As explained in Comment [2] to Prof. Cond. Rule 1.10, the rule of imputed
disqualification “gives effect to the principle of loyalty to the client as it applies to
lawyers who practice in a law firm. Such situations can be considered from the premise
that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty
to the client, or from the premise that each lawyer is vicariously bound by the obligation
of loyalty owed by each lawyer with whom the lawyer is associated.”
A public defender organization is, by terminology, a law firm for purposes of the Ohio
Rules of Professional Conduct. Prof. Cond. Rule 1.0(c) states: “‘Firm’ or ‘law firm’
denotes a lawyer or lawyers in a law partnership, professional corporation, sole
proprietorship, or other association authorized to practice law; or lawyers employed in a

Op. 2010-5 4
private or public legal aid or public defender organization, a legal services organization,
or the legal department of a corporation or other organization.”
Although the ethical rules define a public defender organization as a law firm, that
definition alone is not dispositive as to whether all of the state public defender’s lawyers
are considered lawyers associated in a firm for purposes of imputation of conflicts of
interest. As explained in Comment [2] to Prof. Cond. Rule 1.0(c), “[w]hether two or
more lawyers constitute a firm within division (c) can depend on the specific facts.”
The structure of the state public defender organization is pivotal in determining whether
all lawyers within the organization are considered lawyers associated in a firm for
purposes of imputation of conflicts of interest. Comment [4] to Prof. Cond. Rule 1.0(c),
addressing legal aid and legal services organizations, explains that “[d]epending upon the
structure of the organization, the entire organization or different components of it may
constitute a firm or firms for purposes of these rules.”
A North Dakota ethics committee considered whether three public defender offices
opened by the Commission on Legal Counsel for Indigents can be treated as separate law
firm for purposes of imputing conflicts of interest. The committee noted that the three
offices do not present themselves to the public or conduct themselves as a firm, and they
maintain separate office in different cities. Each office has its own filing system and
separate computer drive. Each office has its own letterhead. There is no mutual access to
confidential information regarding the clients. Each office has its own supervising
attorney and its own administrative staff. Any supervision by the Commission over the
office is purely administrative. The committee advised that under the facts presented the
three public defender offices are not a “firm” for purposes of North Dakota’s Prof. Cond.
Rule 1.10(a). See State Bar Assn. of North Dakota, Op. 06-07 (2006).
Under the organizational structure of the State Public Defender of Ohio, the central
appellate office is separate from the trial branch offices located in four different counties.
The four trial branch offices are described as “essentially independent entities that have
limited contact with the appellate attorneys” in the central office. The database of the
central appellate office is separate from a trial branch office’s database. The central
office and the trial branch offices share Internet Technology support, but appellate
attorneys do not have access to a trial branch office database. Each trial branch office has
a branch office attorney director.
Nevertheless, one must acknowledge that there is a connection between the central
appellate office and the trial branch offices. The State Public Defender is responsible for
appointing all of the assistant state public defenders, including the trial branch attorneys.
The central appellate office is available to provide support to the trial branch offices; for
example, a trial branch office might on occasion need to call the appellate office for
advice on a trial matter. But, for the most part, the trial branch offices function separately
from the central appellate office.

Op. 2010-5 5
The Board’s view is that given the structure of having a central appellate office in the
capital city and separate trial branch offices located in different counties, imputation of
conflicts of interest, between the state assistant public defenders in the trial branch offices
and the state assistant public defenders, is not automatically required under Prof. Cond.
Rule 1.10(a). As noted in Comment [3] to Prof. Cond. Rule 1.10, division (a) of the
ethical rule “does not prohibit representation where neither questions of client loyalty nor
protection of confidential information are presented.” Under the facts presented, the
separate databases provide protection of confidential information. In the absence of facts
establishing otherwise, the loyalty of the appellate state public defenders’ to the
defendants is not doubted.
Thus, in answer to Question One, the Board advises as follows. The assistant state public
defenders in the state public defender’s central appellate office located in the state’s
capital city and the assistant state public defenders in the state public defender’s trial
branch offices located in four different counties are not automatically considered lawyers
associated in a firm for purposes of imputing conflicts of interest under Prof. Cond. Rule
1.10(a). If an appellate state public defender does not provide assistance to a trial branch
state public defender in a trial matter, there is no ethical reason to impute a conflict of
interest when an appellate attorney is asked to conduct a merit review, prosecute an
appeal, or pursue a postconviction remedy asserting ineffectiveness of trial counsel in
that matter. The appellate state public defenders are not associated with the trial branch
state public defenders in that matter. But, if an appellate state public defender does
provide assistance to a trial branch state public defender in a trial matter, it would be
appropriate under the ethical rules to impute a conflict of interest when an appellate
attorney is asked to conduct a merit review, prosecute an appeal, or pursue a
postconviction remedy asserting ineffectiveness of trial counsel in that matter. The
appellate state public defenders are associated with the trial branch state public defenders
in that matter.
Appellate assistant state public defender review of representation by trial
assistant public defender
Having addressed imputation of conflicts of interest, consideration is given to
determining whether there is a conflict of interest when an appellate assistant state public
defender is conducting a merit review, asserting an appeal, or pursuing a postconviction
remedy asserting ineffectiveness of a trial assistant public defender.
Under the Ohio Rules of Professional Conduct, the conflicts of interest of current clients
are addressed in several rules. Prof. Cond. Rule 1.7 is the general rule where the analysis
of all conflicts begins. Prof. Cond. Rule 1.8 contains specific rules not applicable to this
opinion.
Prof. Cond. Rule 1.7(a) states: “A lawyer’s acceptance or continuation of representation
of a client creates a conflict of interest if either of the following applies: (1) the
representation of that client will be directly adverse to another current client; (2) there is a

Op. 2010-5 6
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, or a third person or by the lawyer’ s own
personal interests.”
The “material limitation” conflict of interest identified in Prof. Cond. Rule 1.7(a)(2) is at
issue when an appellate assistant state public defender conducts a merit review,
prosecutes an appeal, or pursues a postconviction remedy asserting that another assistant
state public defender rendered ineffective assistance at trial. The “directly adverse”
conflict of interest identified in Prof. Cond. Rule 1.7(a)(1) is not at issue and is not
addressed further herein.
In analyzing the “material limitation” conflict of interest, the question is whether there is
a substantial risk that an appellate assistant state public defender’s ability to consider,
recommend, or carry out an appropriate course of action for a defendant when conducting
a merit review, prosecuting an appeal, or pursuing a postconviction remedy asserting
ineffective assistance at trial by an assistant state public defender will be materially
limited. If so, there is a conflict of interest under Prof. Cond. Rule 1.7(a)(2).
As defined by Prof. Cond. Rule 1.0(m). “‘[s]ubstantial’ when used in reference to degree
or extent denotes a matter of real importance or great consequence.” Given the serious
nature of public defender representation, if a risk exists, it likely will be a substantial risk.
It appears settled that a conflict of interest exists for a defendant’s trial lawyer to argue
that the trial lawyer’s own representation was ineffective. For example, in Ohio, there is
a notion that “counsel cannot realistically be expected to argue his own incompetence.”
State v. Lentz (1994), 70 Ohio St.3d 527, 529. As the Lentz court mentioned, this notion
is approvingly attributed to State v. Carter (1973), 36 Ohio Misc. 170 by the court in
State v. Cole (1982), 2 Ohio St.3d 112, 114 f.n. 1: As the Cole court, referring to Carter,
noted, since “counsel cannot realistically be expected to argue his own incompetence, res
judicata does not act to bar a defendant represented by the same counsel at trial and upon
direct appeal from raising a claim of ineffective assistance of counsel in a petition for
postconviction relief.” Cole at 114, fn. 1.
These cases precede the adoption of Prof. Cond. Rule 1.7(a)(2). Under Prof. Cond. Rule
1.7(a)(2) the ethical analysis is whether there is a conflict of interest arising from a
substantial risk that the lawyer’s interest in not being found ineffective that would
materially limit the lawyer’s ability to consider, recommend, or carry out an appropriate
course of action for the defendant.
Debatable issues surround whether there is a conflict of interest when one public
defender prosecutes an appeal or pursues a postconviction remedy, asserting claims that
another public defender’s representation was ineffective. For discussion, see Christopher
M. Johnson, Not for Love or Money: Appointing a Public Defender to Litigate a Claim
of Ineffective Assistance Involving Another Public Defender, 78 Miss. L.J. 69 (2008). As
Johnson notes, the debate about a per se rule barring public defenders from litigating

Op. 2010-5 7
ineffectiveness of other public defenders versus a case by case analysis arises from
disagreements as to basic premises. Id. at 87. For example, is it significant that public
defenders, unlike private practitioners, have no financial interest in the outcome of a
case? Can it be concluded that public defender ethos will preclude a public defender
from concerns for the professional reputation of colleagues as might prevent zealous
litigation of ineffectiveness claims involving a colleague? Does office loyalty exist, and
if it so does it influence individual public defenders? Are there practical reasons
supporting the appointment of public defenders to litigate ineffective assistance claims?
Id. at 82-100.
In Ohio, the Lentz court rejected a per se rule that a conflict of interest exists when
another public defender at the postconviction stage asserts a claim of ineffective
assistance of a public defender, in favor of a case by case analysis. Lentz at 531. The
Lentz court held that “when a criminal defendant is represented by two different attorneys
from the same public defender’s office at trial and on direct appeal, res judicata bars a
claim of ineffective assistance of trial counsel raised for the first time in a petition for
postconviction relief when such claim could have been made on direct appeal without
resort to evidence beyond the record, unless the defendant proves that an actual conflict
of interest enjoined appellate counsel from raising a claim of ineffective assistance of
trial counsel on direct appeal.” Id. at 529.
In adopting a case-by-case analysis, the court considered the question of whether a
private law firm and a county public defender’s office are analogous. The Lentz court
noted the importance of this question since the ethical rule [then DR 5-105(D), now Prof.
Cond. Rule 1.10(a)] imputes a lawyer’s conflicts to a law firm. Id. at 530.
The court found “[a]t the threshold level, the lack of a financial stake in the case’s
outcome sets the public defender apart from the private firm. A lawyer in private practice
who is still being paid by a defendant would be less willing to admit that his firm’s
representation in an earlier stage of the proceedings was substandard. Also, unlike the
public defender, the private attorney is in competition with other law firms for clients’
business, so diminished reputation more directly affects the finances of private sector
attorneys.” Id. at 530.
On the other hand, “[w]hile a public defender’s office may not have the financial
conflicts of a private law firm, conflicts driven by loyalty, reputation and esprit de corps
may be just as likely to arise in a public defender’s office as in a private law firm.” Id. at
530. “Still, the doubts or awkwardness such feelings engender does not give rise to the
same level of conflict of interest that would occur were a lawyer representing competing
parties or co-defendants with differing interest, and certainly does not create a level of
conflict serious enough for this court to find a per se conflict of interest. A lawyer’s
supreme duty of loyalty is to his client (EC 5-1), and that is a duty that we should not
assume will be ignored due to the possibility of embarrassing a co-worker.” Id. at 530.
Under Prof. Cond. Rule 1.7(a)(2), whether an appellate state public defender in the
central office has a conflict of interest in asserting the ineffectiveness of another assistant

Op. 2010-5 8
state public defender in the trial branch office will depend upon whether there is a
substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an
appropriate course of action for the defendant is limited by the appellate lawyer’s
responsibilities to another client, a former client, or a third person, or by the lawyer’s own
personal interests.
Based upon the ethical rule and in keeping with applicable Ohio case law, the Board’s
view is that there is not a per se conflict of interest under the ethical rules for an appellate
assistant state public defender in the central office to conduct a merit review, prosecute
an appeal, or pursue a postconviction remedy asserting the ineffectiveness of another
assistant state public defender in a trial branch office. This will always be a factual
determination in each matter.
In each case, an appellate state public defender must consider whether there is a conflict
of interest under Prof. Cond. Rule 1.7(a)(2). The question must be asked: Is there a
substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an
appropriate course of action for the defendant is limited by the appellate lawyer’s
responsibilities to another client, a former client, or a third person, or by the lawyer’s own
personal interests, such as a close personal relationship or an unyielding institutional
loyalty to the trial assistant public defender?
If the appellate assistant state public defender in the central office has a significant close
personal or unyielding institutional loyalty to the trial assistant state public defender, it is
likely there is a substantial risk of a material limitation on the appellate representation.
Or, if an appellate assistant state public defender in the central office has provided
assistance to an assistant state public defender in a trial matter, it is likely, that there is a
substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an
appropriate course of action for that client will be materially limited by the appellate
lawyer’s own personal interest arising from involvement in the trial matter, when asked
to conduct a merit review, prosecute an appeal, or pursue a postconviction remedy
asserting ineffectiveness of trial counsel.
In conclusion, the Board’s advice is as follows. There is not a per se conflict of interest
when an appellate assistant state public defender in the central appellate office conducts a
merit review, asserts an appeal, or pursues a postconviction remedy asserting that another
assistant state public defender in a branch office rendered ineffective assistance at trial.
Under Prof. Cond. Rule 1.7(a)(2), whether an appellate state public defender in the
central office has a conflict of interest in asserting ineffectiveness of an assistant state
public defender in a trial branch office will depend upon whether there is a substantial
risk that the appellate lawyer’s ability to consider, recommend, or carry out an
appropriate course of action for the defendant is limited by the appellate lawyer’s
responsibilities to another client, a former client, or a third person, or by the lawyer’s own
personal interests. This will always be a factual determination in each matter. If an
appellate assistant state public defender in the central office has a significant close
personal relationship or unyielding institutional loyalty to the trial assistant state public
defender, it is likely there is a substantial risk of a material limitation on the appellate

Op. 2010-5 9
representation in that matter. Or, if an appellate assistant state public defender in the
central office has provided assistance to an assistant state public defender in a trial
matter, it is likely, that there is a substantial risk that the appellate lawyer’s ability to
consider, recommend, or carry out an appropriate course of action for that client will be
materially limited by the appellate lawyer’s own personal interest arising from
involvement in the trial matter, when asked to conduct a merit review, prosecute an
appeal, or pursue a postconviction remedy asserting ineffectiveness of trial counsel in
that matter.
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
Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the
Attorney’s Oath of Office.