ETH 2019-5
Opinion No. 2019-5
Ohio Ethics Opinion
Ohio Board of Professional Conduct
August 2, 2019
Richard A. Dove Director
D.
Allan Asbury Senior Counsel
Kristi
R. McAnaul Counsel
Patricia A. Wise Vice- Chair
Conflicts
of Part-Time Law Director and Imputation to Part-Time Law
Director’s Firm
SYLLABUS:
When a part-time law director also engages in the private
practice of law, the law director may not represent private
clients in matters related to his or her employing
municipality. Associated lawyers in a part-time law
director’s law firm are permitted to represent clients
in matters related to the part-time law director’s
employing municipality. The conflicts of a part-time law
director are not imputed to the other members of a law
director’s private law firm.
QUESTION
PRESENTED: May a lawyer associated in a law firm
with an elected, part-time law director represent a client in
matters before the law director’s municipality or one
of the employees, officers, commissions, or boards of the
municipality?
APPLICABLE
RULES: Prof. Cond.R. 1.7, 1.10, 1.11
OPINION
HON.
JOHN W. WISE CHAIR
The
Board must first consider the law director’s conflicts
of interest prior to addressing the imputation question
posed. A law director of a municipal corporation provides
legal advice and representation to the municipality, its
officers, and its entities. The specific legal duties of a
city law director are established by law. E.g., R.C.
705.11, 733.51, 733.52, 733.53, 733.54, 733.56 733.57,
733.58, 733.62, 1901.34 and 3313.35.[1] Some law directors are
statutorily tasked with the duty to prosecute criminal
violations of state law, while other law directors are not
required to prosecute criminal violations of state law
because county prosecutors in those counties are tasked with
the responsibility.[2]
A law
director is not prohibited from engaging in the private
practice of law in Ohio, and many lawyers employed as
part-time law directors continue to maintain a private
practice at law firms. A part-time law director or other
lawyers associated in a law firm with a part-time law
director are often approached to represent clients in matters
coming before various divisions of a municipality, such as an
application pending before or requiring approval by the city
engineer, planning commission, or city council. The Board
previously addressed in Adv. Op. 2008-06 whether a law
director and lawyers associated in a law firm with a law
director may represent criminal defendants, but has not
specifically addressed the related concept of representation
of clients in a civil context.
Part-Time
Law Director’s Ability to Represent Civil Clients in
Matters Related to the Municipality
A
lawyer’s representation of a client creates a conflict
of interest if the representation of that client will be
directly adverse to another current client or if there is a
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, a third
person, or by the lawyer’s own personal interest.
Prof.Cond.R. 1.7(a)(1)-(2). Furthermore, public officers owe
an undivided...