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New Advisory Opinions Addressing Conflicts and Notarization of Affidavit of Client
Post on July 18th, 2022

The Ohio Board of Professional Conduct recently issued three new advisory opinions.  Two of the opinions discussed different conflicts situations.  The other opinion considered a lawyer’s notarization of an affidavit of the client.

Opinion 2022-04- Imputation of County Prosecuting Attorney’s Former Client and Firm Conflicts to an Assistant Prosecuting Attorney

In this Opinion, the Board of Professional Conduct considered the conflicts of interest that arise when a former public defender becomes a prosecuting attorney.  The Board found that, absent informed written consent, the county prosecuting attorney must appoint an assistant prosecuting attorney to handle cases that were assigned to the public defender’s office during the county prosecuting attorney’s former employment with the office and implement appropriate screening measures if the county prosecuting attorney (1) personally represented the defendant in the same or substantially related matter, or (2) obtained protected information about other clients of the public defender’s office.

The Opinion applied Ohio Rules of Professional Conduct Rules 1.7, 1.9, and 1.11 and analyzed the conflicts of the prosecuting attorney regarding former clients of the prosecuting attorney, clients of the Public Defender’s Office but not former clients of the prosecuting attorney, and imputation of conflicts of the prosecuting attorney to assistant prosecuting attorneys.

For former clients of the prosecuting attorney, the Board explained that pursuant to Rule 1.11(d)(1), the prosecuting attorney must follow the general conflict of interest requirements of Rule 1.9.  Therefore, if the county prosecutor formerly represented a defendant in the same or a substantially related matter when employed at the public defender’s office, then the prosecutor is prohibited from prosecuting the defendant in the same or substantially related matter unless both the defendant and the government agency give informed written consent.

The Board discussed that Rule 1.11(d)(1) also requires the county prosecuting attorney to determine whether they would be prohibited from personally prosecuting a defendant whose case was assigned to another public defender during the prosecutor’s tenure as public defender. Absent informed consent, under Rule 1.9(b), a lawyer who was previously associated with a firm cannot represent another client in the same or substantially related matter when the clients’ interests are materially adverse and when the lawyer previously acquired information protected by Rule 1.6 or 1.9(c) about the former firm’s client.  Rule 1.0(c) defines a public defender office as a law firm.

Since the interests of a county prosecuting attorney and their client, the state of Ohio, are materially adverse to clients of the public defender’s office, the prosecutor must complete an individual assessment in each case that was assigned to the public defender’s office when the prosecutor had tenure as public defender to determine whether protected client information was obtained.  If the now prosecuting attorney did not obtain protected information about other clients of the public defender’s office, the prosecutor is not prohibited from prosecuting an individual who was represented by another public defender during the prosecutor’s tenure as public defender.

The conflicts of the county prosecuting attorney are not imputed to other associated government officers or lawyers within the prosecuting attorney’s office because of the special problems associated with the imputation of conflicts within a governmental entity. Another assistant prosecuting attorney may handle matters the county prosecuting attorney is prohibited from handling.

The Board concluded by saying it is generally prudent for the office to screen the county prosecuting attorney from those matters they are prohibited from handling due to former employment with the public defender’s office.  As a best practice the Board recommended that the prosecuting attorney assign every matter handled by the public defender’s office during former employment to an assistant prosecuting attorney in the interest of preserving the confidence of defendants and the public.

Opinion 2022-06 – Conflicts Arising out of Personal Relationships with Opposing Counsel

In this Opinion, the Board considered the conflicts that arise from personal relationships between prosecutors and criminal defense lawyers. The Board noted that spouses may not represent opposing parties without informed, written consent, and that domestic partners, individuals in intimate relationships, close friends and roommates have the same duties as spouses in evaluating potential conflicts of interest.  Although the Board directed the Opinion at criminal defense lawyers and prosecutors, it recommended application of its analysis to other representational situations where opposing counsel have significant personal relationships.

The Board reviewed the spousal situation as a material limitation conflict under Rule 1.7(a)(2) and Comment [21] noting that there may be a substantial risk that client confidences will be revealed, and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship before the lawyer undertakes the representation.

The Board discussed Rule 1.10(a) stating that when 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, then the conflict is not imputed to other members of the firm.  Further, Comment [21] clarifies disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated.

As to whether disclosure and consent is needed, the Board said that, if the firm member does not share a close personal friendship with the prosecutor-spouse and it is unlikely that the representation will be materially limited, then consent and disclosure is not necessary. The Board recommended appropriate and timely screening of the lawyer-spouse from any matters in which the prosecutor-spouse is involved.

The Board looked at Comment [21] to Rule 1.7 and Comment [2] to Rule 1.11 and concluded that a lawyer married to a prosecutor may represent criminal defendants prosecuted by other lawyers in the prosecutor-spouse’s office. It cautioned that the lawyer-spouse should also assess whether his or her own personal relationship with the specific prosecutor(s) assigned to each case presents a significant risk of materially limiting the representation of the client, aside from the conflict personal to his or her spouse.  If the criminal defense lawyer does not share a close personal friendship with the prosecutor colleague(s) of his or her spouse, then disclosure and consent is unnecessary.  Again, timely and appropriate screening of the prosecutor-spouse is recommended.

The Board also addressed the following other relationships and whether the client must be informed, and consent obtained:

  • intimate relationship – must inform client and obtain informed, written consent
  • close friendships –must inform client and obtain informed, written consent
  • friendship – not required but may choose to inform client
  • acquaintances – not required but may choose to inform client
  • roommates – use criteria above to analyze and protect confidentiality under Rule 1.6

In making some of these distinctions, the Board took guidance from ABA Formal Opinion 494 – Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel.

The Board also highlighted that disclosure of the relationship to the client must be truthful under Rule 7.1 and must convey adequate information pursuant to Rule 1.4 for the client to make an informed decision. The Board provided a list of potential implications of the conflict to discuss with the client. At a minimum, the information contained in a written conflict waiver should include the precise nature of the relationship that prompted the disclosure, any material risks giving rise to the conflict, and any reasonable alternatives to the representation, such as assignment of another lawyer in the office or obtaining other counsel altogether.

Conflict analysis can be complicated. Feel free to contact us at OBLIC is you have questions.

Opinion 2022-05 – Lawyer Notarization of Affidavit of Client is the third opinion issued by the Board. In this Opinion the Board examined Rule 3.7 – Lawyer as Witness to determine that a lawyer may notarize an affidavit of a client that will be filed in a pending matter and represent the client at a subsequent hearing or trial.

The Board said that the act of notarizing a document on behalf of a client does not immediately transform the notarizing lawyer into a necessary witness or even make it likely the lawyer will be called as a witness. Further, it noted that lawyers regularly notarize documents on behalf of clients in areas of law, such as landlord-tenant law, domestic law, or probate law.

The Board concluded that the application of Rule 3.7 does not support an automatic or blanket prohibition of a lawyer representing a client when the lawyer has notarized an affidavit in a matter.  If specific questions arise about whether the affidavit was properly executed or the identity of the affiant, then a trial court may determine it is necessary to have a hearing to establish whether the lawyer is a necessary witness.  The determination as to whether counsel may continue to represent the client is a fact-based determination and should be made on a case-by-case basis after a hearing.

If you have questions about these Opinions or any other loss prevention topic, please contact us.  We’re here to help!

Gretchen Mote, Esq
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
Direct:  614-572-0620
Email: [email protected]
Monica Waller, Esq.
Senior Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
Direct:  614-859-2978
Email: [email protected]