April 19, 2022 – In some Ohio counties and municipalities, prosecutors and judges are permitted to serve in part-time roles. In such circumstances, the representation of clients in the part-time judge’s or part-time prosecutor’s private practice may create a greater frequency of conflicts of interest.[i] While the conflict of interest is not imputed to the entire county prosecutor’s office, a part-time assistant prosecutor employed by a part-time municipal judge may not appear before that municipal judge.
A part-time assistant county prosecutor employed in private practice by a part-time municipal court judge may not appear before that judge. In its first Advisory Opinion of 2022, the Ohio Board of Professional Conduct (the “Board”) considered whether a county prosecuting attorney, who employs a part-time assistant prosecutor, could appear before a part-time municipal court judge who also employs the assistant prosecutor in private practice. The Board first examined the conflicts of interest posed by the part-time assistant prosecutor in this scenario, noting that the assistant prosecutor’s “employment relationship, and in particular the assistant prosecutor’s financial interest in maintaining his or her employment at the [judge’s] private law firm, presents a substantial risk that the lawyer’s duties to the state will be materially limited.”[ii] If the assistant prosecutor were to appear before the municipal court judge, “the assistant prosecutor’s private employment may cause him or her to refrain from strongly advocating a certain position out of concern that the judge will not agree with the position or disapprove of the argument.”[iii]
The assistant prosecutor’s conflict in this instance cannot be waived by the client—the state of Ohio. Prof.Cond.R. 1.7(b) provides that certain conflicts may be waived by the client so long as the representation is not prohibited by law.[iv] However, “[t]he relationship between an assistant prosecutor and part-time judge in private practice together could be perceived by the public as an opportunity of an assistant prosecutor to improperly influence matters pending before the judge.”[v] Such conflict may not be waived even with the client’s informed consent because it runs afoul of Prof.Cond.R. 8.4(e)’s prohibition on a lawyer implying that he or she has the ability to improperly influence a government officer.[vi] As such, the Board concluded that the assistant prosecutor in this scenario may not appear before the same municipal court judge that employs him or her in private practice.
A part-time assistant county prosecutor’s conflict is not imputed to the county prosecutor. Prof.Cond.R. 1.11 exclusively governs the imputation of conflicts of interest of current or former government lawyers. Generally, pursuant to Rule 1.11(d)(1), a part-time assistant prosecutor must abide by the general conflict of interest provisions of Prof.Cond.R. 1.7. However, the conflicts of a part-time assistant prosecutor are not imputed to other associated government lawyers within that prosecuting attorney’s government office “because of the special problems associated with the imputation of conflicts within a governmental entity.”[vii] Nevertheless, the Board advises, in this situation, it would be prudent for the county prosecutor to screen the part-time assistant prosecutor from any matters that require an appearance before the municipal court judge.
The county prosecutor must evaluate whether a material limitation exists. Although the conflict of a part-time prosecutor will generally not be imputed to the elected county prosecutor, “[t]he prosecutor should consider whether there is a substantial risk that his or her relationship with the part-time assistant prosecutor will materially limit his or her representation of the public client before the part-time municipal judge.”[viii]
Conclusion and Practical Takeaway. A part-time assistant county prosecutor employed in private practice by a part-time municipal court judge may not appear before that judge. Even though the conflicts of interest created by the part-time assistant prosecutor’s employment will not be imputed to the elected prosecutor, the Board advises creating an ethical wall to screen the employed assistant prosecutor from matters requiring the elected prosecutor to appear before the judge.
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[i] See Ohio Board of Prof. Cond., Op. 2022-01, 1.
[ii] Ohio Board of Prof. Cond., Op. 2022-01, 2.
[iii] Ohio Board of Prof. Cond., Op. 2022-01, 2.
[iv] Ohio Board of Prof. Cond., Op. 2022-01, 2 (citing Prof.Cond.R. 1.7(b)(3) and 1.7(c)(1)).
[v] Ohio Board of Prof. Cond., Op. 2022-01, 2.
[vi] Ohio Board of Prof. Cond., Op. 2022-01, 2.
[vii] Ohio Board of Prof. Cond., Op. 2022-01, 3 (citing Prof.Cond.R. 1.11, cmt. ).[viii] Ohio Board of Prof. Cond., Op. 2022-01, 3 (citing Prof.Cond.R. 1.7(a)(2)).