Ohio Board Advisory Opinion Op 88-021

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 88-021
Issued August 12, 1988
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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 lawyer or law firm which represents a public entity whose agency is seeking a
land use variance cannot ethically represent landowners opposed to that variance. A lawyer should
not represent multiple clients with differing interests unless it is obvious the lawyer can adequately
represent the interests of each client AND each client consents to the representation after full
disclosure of all the implications of the common representation.
OPINION: We have before us your request for an advisory opinion on a possible conflict of
interest. In your request you indicate that your law firm has a contract with a Community Mental
Health Board (Board) to provide legal services on an as needed basis for the year 1988. The Board
contracts with an Agency to provide services and facilities for domestic violence victims in the
area. The Agency is seeking a land use variance for a shelter. Your law firm represents a group of
landowners which are opposed to the location of the Agency's shelter in their neighborhood. The
Board, your client, is in support of the Agency's efforts to locate the shelter in the neighborhood
and seek appropriate variances.
For reasons set forth below, it is our opinion that representing both the neighbors and the
Board would constitute a conflict of interest. It is our understanding that the Community Mental
Health Board has significant control over the Agency in that the Board finances, monitors and
evaluates the Agency's activities. Ohio Rev. Code §340. Therefore, for purposes of this opinion,
we consider the Agency to be a subsidiary of the Board.
There are several provisions in the Code of Professional Responsibility which apply here.
First, EC 5-14 states:
Withdrawn by Adv. Op. 2020-04 on June 12, 2020

Op. 88-021 2
[m]aintaining the independence of professional judgment required of a lawyer
precludes his acceptance or continuation of employment that will adversely
affect his judgment on behalf of or dilute his loyalty to a client. This problem
arises whenever a lawyer is asked to represent two ...clients who may have
differing interests, whether such interests be conflicting, inconsistent, diverse,
or otherwise discordant.
According to your request letter, your law firm’s clients (the Board and the neighbors) have
differing interests with regard to the placement of the shelter.
Ethical Consideration 5-15 recommends that a lawyer should resolve all doubts against the
propriety of the representation of clients having potentially differing interests. There are, however,
instances in which a lawyer is justified in representing clients having differing interests. See, e.g.,
Code of Professional Responsibility, EC 5-15. Although, if a lawyer feels justified in representing
clients with differing interests, he or she should “explain fully to each client the implications of the
common representation and should accept or continue employment only if the clients consent.”
Code of Professional Responsibility, EC 5-16 (emphasis added). In addition, EC 5-19 states that,
[a] lawyer may represent several clients whose interests are not actually or
potentially differing. Nevertheless, he should explain any circumstances that
might cause a client to question his undivided loyalty. Regardless of the
belief of a lawyer that he may properly represent multiple clients, he must
defer to a client who holds the contrary belief and withdraw from
representation of that client.
Thus, when a lawyer represents multiple clients it is the client and not the lawyer who
determines whether the representation shall continue.

Op. 88-021 3
The aforementioned Ethical Considerations are “aspirational in character and represent the
objectives toward which every member of the profession should strive.” Code of Professional
Responsibility, Preface. The Disciplinary Rules are mandatory in character and state the minimum
level of conduct below which no lawyer can fall without being subject to disciplinary action.” Id.
The Disciplinary Rule which is applicable to your request is DR 5-105, which states:
…B) A lawyer shall not continue multiple employment if the exercise of his
independent professional judgment in behalf of a client will be or is likely to
be adversely affected by his representation of another client, except to the
extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent
multiple clients if it is obvious that he 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 independent
professional judgment on behalf of each.
Therefore, in order to avoid disqualification under DR 5-105(B), a lawyer must satisfy the
two conditions found in DR 5-105(C). Unified Sewerage Agency of Washington County, Oregon
v. Jelco Inc., 646 F.2d 1339, 1345 (9th Cir. 1981). First, it must be obvious that the lawyer can
adequately represent the interests of each client and second, each client must consent to the
multiple representation after full disclosure of the risks. Id.
The necessity of obtaining a client's consent to multiple representation places the burden of
affirmatively providing disclosure and obtaining consent upon the lawyer. IBM v. Levin, 579 F.2d
271, 282 (3d Cir. 1978) “Full disclosure means just that - affirmative revelation by the attorney of
all the facts, legal implication, possible effects, and other circumstances relating to the proposed
representation. A client's mere knowledge of the existence of his attorney’s other representation
does not alone constitute full disclosure.” Financial General Bankshares, Inc. v. Metzger, 523
F.Supp. 744, 771 (D.D.C. 1981).

Op. 88-021 4
Furthermore, maintaining public confidence in the bar requires an attorney to decline
employment adverse to his or her client, even though the nature of the employment is wholly
unrelated to that of his existing representation. Cinema 5, Ltd. v. Cinerama, Inc., et al., 528 F.2d
1384, 1387 (2d Cir. 1976). The Cinema 5 case also stands for the proposition that “[w]here the
relationship is a continuing one, adverse representation is prima facie improper, (citation omitted)
and the attorney must be prepared to show, at the very least, that there will be no actual or apparent
conflict in loyalties or diminution in the vigor of his representation.” Id. (emphasis in original).
In conclusion, it is our opinion and you are so advised that, based upon the Disciplinary
Rules, the Ethical Considerations and the case law, continuing to represent both the Board and the
landowners would constitute a conflict of interest. Such a conflict may be overcome if it is obvious
that your law firm can adequately represent the interests of each client and if both the neighbors
and the Board consent to the multiple representation after full disclosure of all the facts involved.
This is an informal, non-binding advisory opinion based upon the facts presented and
limited to questions arising under the Code of Professional Responsibility.
James W. Mason, Esq.
Secretary, Board of
Commissioners