Conflicts of Interest In Municipal Representation and Criminal Defense

Board Advisory Opinion 2019-3 advises that lawyers may not represent municipalities in real estate matters where another lawyer in the law firm represents criminal defendants being prosecuted in Municipal Court for that municipality.  Likewise, it is a conflict of interest for a lawyer to engage in such a representation where another attorney in the firm represents criminal defendants investigated by police officers in that municipality.

Such representations would violate Prof.Cond.R. 1.7 prohibiting conflicts of interest and Prof.Cond.R. 1.10 on imputation of conflicts of interest to other attorneys in the firm.

A conflict of interest occurs where an attorney represents a client directly adverse to another current client or if an attorney’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).  The fundamentality of a lawyer’s fundamental duty of loyalty and independent judgment is not permitted to be diluted by a duty the lawyer may owe to another client.  Likewise, imputing the conflict to other attorneys in the firm gives effect to these fundamental duties.

A lawyer is not permitted to advocate on behalf of one client in litigation against a current client, even if the matters are unrelated.  Likewise, a conflict exists where a lawyer must cross-examine another firm client who appears as a witness in litigation.  Additionally, an attorney is prohibited from representing a client where a conflict of interest involves a substantial risk that the lawyer or law firm’s ability to consider, recommend, or carry out an appropriate course of action for a client will be materially limited by the lawyer or law firm’s responsibilities to another client or by the lawyer or law firm’s own personal interest. A municipality has an interest in prosecuting their local ordinances and supporting their employees, such as police officers.  Conversely, criminal defendants have an interest in ensuring the preservation of their constitutional rights and avoiding criminal conviction.  Arguments that an ordinance is unconstitutional or that police were not properly trained or that they systematically failed to follow the law or proper procedures would be directly adverse to the municipality’s interests.

Additionally, a concern exists that a lawyer representing both a municipality and a criminal defendant may conduct a deferential rather than a thorough examination of a municipal employee in criminal defense litigation. On the other hand, the law firm’s financial interest in maintaining the municipality as a client could have an adverse effect on the defense of the criminal defendant client.  Moreover, a municipal client cannot waive the conflict as it acts on behalf of the public, which cannot consent to such a conflict. ABA Formal Op. 16 (1929); ABA Formal Opinion 34 (1931); ABA Formal Opinion 77 (1932).  Indeed, the lawyer’s client is deemed to be the citizens of the municipality. Thus, Ohio joins West Virginia and New Jersey in adhering to a “per se” government non-consent rule. Bennett, Cohen & Gunnarsson, Annotated Model Rules of Professional Conduct, 153 (8th ed. 2015).

The opinion warns that a request that a Municipality waive such a conflict of interest may result in a judicial determination that the Municipality cannot consent.  Therefore, the Board declined to advise that lawyers in such circumstances request the informed consent of the municipality to the conflict.

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