Ohio Board Advisory Opinion Op 88-013

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 88-013
Issued June 17, 1988
Withdrawn by Adv. Op. 2022-01
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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: Nothing in the Code of Professional Responsibility specifically prohibits a
prosecuting attorney from appearing before a part-time municipal court judge who employs the
prosecutor's assistant in his or her private practice. However, if the prosecutor's professional
judgment will be or reasonably may be affected by the assistant's conflict of interest then he or she
should not appear before the judge. The prosecutor should also avoid the appearance of
impropriety.
OPINION: We have before us your request for our opinion on whether a conflict of interest or the
appearance of impropriety arises due to your handling of felony bind-overs before a part-time
Municipal Court Judge who employs one of your assistant prosecutors as an associate in his law
firm. You indicate in your letter that the assistant prosecutor will not appear in the Judge's
courtroom.
The Code of Professional Responsibility expresses the general standards of conduct
expected of lawyers and provides a guide from which lawyers may follow to ensure that their
activities as lawyers positively reflect the legal system. Code of Professional Responsibility,
Preface. Under DR 5-101(A), lawyers are precluded from accepting employment if the exercise of
their professional judgment on behalf of their clients will be or reasonably may be affected for
whatever reason, unless the client consents after full disclosure.
Therefore, if your professional judgment in proceedings before a part-time Municipal Court
Judge will be, or reasonably may be affected by the fact that one of your assistant prosecutors also
practices law with that Judge, then perhaps you should not appear before the Judge.

Op. 88-013 2
Disciplinary Rule 5-101(A) states that a lawyer may accept employment where his
judgment may be affected by other interests if, the client consents after full disclosure. However, as
a prosecutor your “client” is the public which cannot consent. ABA Comm. on Ethics and
Professional Responsibility, Informal Op. 1235 (1972). As prosecuting attorney you should
especially guard against conflicts that may arise, given the fact that consent by the public to
possible conflicts of interest is unavailable.
Canon 9 of the Code of Professional Responsibility also applies to the question presented.
Expressly stated, Canon 9 recommends that lawyers should avoid even the appearance of
professional impropriety. Furthermore, EC 9-1 states that lawyers need to promote public
confidence in the legal profession. Once the public’s confidence is gained it should be carefully
guarded against any appearance of impropriety. Under EC 9-2, a lawyer is encouraged to determine
his or her conduct, when explicit ethical guidance does not exist, by acting in a manner which
promotes public confidence in the integrity of the legal profession.
If, in your own professional judgment, you believe that the appearance of impropriety may
exist which does not promote public confidence in your office, then perhaps refraining from
appearing before the particular Municipal Court Judge is well advised. It has been suggested that
when an ethical decision regarding a possible appearance of impropriety arises, a useful maxim
may be, “when in doubt, don't.” Washington State Bar Assn. Op. 161 (1975).
While the conflict with regard to your assistant is evident, the question becomes whether
that conflict can be imputed to you as prosecuting attorney. An assistant prosecuting attorney is an
extension of the prosecuting attorney and therefore subject to any of the same limitations. An Ohio
Attorney General Opinion states that “because an assistant prosecuting attorney is authorized to and
often does stand in the place of his principal, it is only logical that such an assistant be subject to
the same limitations and restrictions placed by law upon the prosecuting attorney.” Ohio Att’y Gen.
Op. 71-050 (1971).
Therefore, depending upon the circumstances surrounding the working relationship between
you and your assistant and the potential for any appearance of impropriety that may arise by
appearing before the Municipal Court Judge, you, as prosecutor, are in the best position to weigh
any conflicting interests

Op. 88-013 3
involved and make the proper decision. One factor to consider is, whether disqualification of the
Judge or yourself would create a substantial hardship which might outweigh any appearance of
impropriety.
In this Board's Opinion 87-022, a conflict of interest was said to exist between father and
son law partners whereby each served respectively as Municipal Court Judge and as city law
director. Our opinion was that the conflict arose not only out of their father/son relationship but
also out of the law partnership. Their relationship as law partners created a conflict which could not
be eliminated by the city law director hiring an assistant since the assistant would be affected by the
direction and control of the Judge’s son.
Therefore, if the working relationship between you and your assistant is closely intertwined
then you may wish to disqualify yourself from appearing before the Judge. Again, the feasibility of
refraining from appearing before the part-time Municipal Court Judge should be weighed against
your duty to promote public confidence and avoid any appearance of impropriety.
One final consideration relates to the Municipal Court Judge and Canon 3C of the Code of
Judicial Conduct which states, “[a] judge should disqualify himself in a proceeding in which his
impartiality might reasonably be questioned... .” Furthermore, the ABA has held that nothing
precludes a lawyer from appearing before a judge where the judge has not disqualified himself. In
this regard, you may prevent possible disqualification problems for the Judge by voluntarily
refraining from appearing before him and thus keeping yourself and the Judge free from
encountering any conflict of interest or impartiality allegations.
In conclusion, it is our opinion and you are so advised that nothing in the Code of
Professional Responsibility prevents a prosecutor from appearing before a Municipal Court Judge
who employs the prosecutor's assistant as an associate in his or her law practice. However, the
prosecutor is in the best position to weigh any potential conflict of interest against the hardships
involved in refraining from appearing before the Judge. The prosecutor should consider his or her
legal obligation to promote public confidence in the legal system when determining whether an
assistant's disqualification should be imputed to the prosecutor in order to avoid any appearance of
impropriety.
This is an informal, non-binding advisory opinion based upon the facts presented and
limited to questions arising under the Code of Professional Responsibility.