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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
Timothy E. Pierce
Franklin County Public Defender Office
Obligations to the Client and the Court
Maples v. Thomas
(2012), 132 S.Ct. 912 – Alabama death row inmate was represented in state post conviction by attorneys from a prominent New York law firm, appearing pro hac vice through the motion of local counsel who undertook no responsibility to provide actual representation. When the attorneys left the firm they failed to notify the court, to continue representation, or make arrangements for their former firm to continue. As a result when state post conviction was denied no notice of appeal was filed, and in habeas proceedings procedural default was interposed. The extraordinary facts are found to excuse the default.
In re Original Grand Jury Investigation
(2000), 89 Ohio St. 3d 544 -- Investigator for lead counsel in a capital case obtained letter from client to brother containing threats against others. On advice of the Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court, counsel read the letter to the trial judge, then was permitted to withdraw as counsel. Prosecutor subpoenaed the letter. Divided Supreme Court holds it had to be produced. Read opinion carefully for ethical guidance at each stage of the situation's development. Was disclosure optional? Would the situation have been different if counsel did not obtain the letter or did not read it to the trial judge, but managed to pass on the threat otherwise?
State ex rel. Holloman
, 100 Ohio St. 70,
-- Client brought mandamus action to compel appointed counsel to furnish an affidavit specifying a potential plea bargain had been put on the table at a pretrial conference. Action properly dismissed. "...(N)either
R.C. 120.16(A) and (B)
nor EC 7-7 imposes any legal duty on an appointed attorney to swear to a false affidavit."
Kowalski v. Tesmer
(2004), 125 S.Ct. 564 -- Attorneys did not have third party standing to bring a 1983 action to vindicate hypothetical future clients' right to appointed counsel in appeals from guilty pleas.
State ex rel Mancino v. Campbell
(1993), 66 Ohio St. 3d 217 -- Attorney's appearance on behalf of a client at the preliminary hearing stage in a municipal court meant that upon bindover he remained counsel in common pleas court, subject to the contempt powers of that court upon his refusal to appear for a hearing.
State v. Edwards
(1997), 119 Ohio App. 3d 106 -- There are fundamental matters where counsel must abide by the client's decision, including whether to plead guilty, waive jury trial, testify or take an appeal. Other decisions not affecting fundamental rights are generally within the discretion of counsel. Also see
State v. Tenace
(1997), 121 Ohio App. 3d 702 -- Whether or not to withdraw NGRI plea was for defendant to decide.
Conn v. Gabbert
(1999), 526 U.S. 286 -- Prosecutors timed execution of warrant for search of attorney's person for when he appeared at the courthouse with a client called to testify before the grand jury. Attorney brought 1983 action claiming interference with his right to practice his calling. No Fourteenth Amendment violation found. Cases cited said to provide no more than "scant metaphysical support for the idea that the use of a search warrant by government actors violates an attorney's right to practice his profession."
Privileged communications and acts.
Report of child abuse or neglect; investigation, plan of cooperation.
State v. Webb
, 173 Ohio App. 3d 547,
, ¶37-45 – When the defendant claimed he was in the process of hiring new counsel the bailiff said she had called that attorney and was told he would not be taking on the case. No violation of attorney-client privilege found in this communication.
Jackson v. Greger
, 110 Ohio St. 3d 488,
-- Paragraph one of the syllabus: "
provides the exclusive means by which privileged communications directly between and attorney and a client can be waived. (
State v. McDermott
(1995), 72 Ohio St. 3d, 651 N.E.2d 985, followed.)" Court declines to add a broader common law waiver rule based on hostile action of the former client, such as set forth in
Hearn v. Rhay
(E.D.Wash, 1975), 68 F.R.D. 574.
State v. Doe
, 101 Ohio St. 3d 170,
-- Syllabus: "(1) In the event of the death of a client,
authorizes the surviving spouse of the client to waive the attorney-client privilege protecting communications between the deceased spouse and attorneys who had represented that deceased spouse. (2) The attorney of a deceased client may not assert attorney-client privilege to justify refusal to answer questions of a grand jury where the surviving spouse of the attorney's client has waived the privilege in conformity with
, and the attorney has been ordered to testify by a court." Use of "may" instead of shall in the statute is construed to vest discretion to ultimately reveal privileged material in the court, not the attorney.
In re Subpoena Duces Tecum Served Upon Attorney Potts
, 100 Ohio St. 3d 97,
-- Syllabus: "1) Pursuant to Crim. R. 17(C), when deciding a motion to quash a subpoena duces tecum requesting the production of documents prior to a trial, a trial court shall hold an evidentiary hearing. At the hearing, which may be held in camera, the proponent of the subpoena must demonstrate that the subpoena is not unreasonable or oppressive by showing, (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition"' (
United States v. Nixon
, 418 U.S. 683, 699-700...followed. (2) When a party claims that subpoenaed documents are privileged, a trial court shall conduct an in-camera inspection of the documents in question before ruling on any claims of privilege."
State v. Kemper
, 158 Ohio App. 3d 185,
-- In a prosecution for failure to appear on a recognizance bond, the attorney-client privilege does not reach the testimony of former counsel concerning notice sent of the missed hearing.
State v. John Doe
, Montgomery App. No. C.A. 19408,
-- Attorney was subpoenaed to testify before a grand jury concerning disclosures client may have made in relation to an unsolved homicide. Client had died. Surviving spouse expressly consented to the testimony. Pursuant to
the privilege was waived and the attorney could be found in contempt for her refusal to testify.
State v. Lentz
, Lucas App. No. L-01-1461,
-- Prosecutor wished to create an "expenditure analysis" demonstrating defendant's income from presumably illegal sources. Subpoena duces tecum was issued for fee agreement with defense counsel and billing records. Trial court overruled motion to quash and ordered records produced for in camera inspection. (1) Records are not per se privileged. (2) In a prior appeal the contempt finding was set aside on the finding counsel acted in good faith in an unsettled area of the law. (3) In second appeal following remand prior ruling on motion to quash was the law of the case.
State ex rel. Benesch, Friedlander, Coplan & Arnoff, L.L.P. v. Rossford
(2000), 140 Ohio App. 3d 149 -- Preliminary drafts of legal documents are within the attorney-client privilege and are not subject to disclosure as public records, unless their contents have otherwise appeared in public documents.
State v. Kimmel
, Marion App. No. 9-03-53,
-- OMVI defendant was allowed to call his attorney from a Highway Patrol post before taking breath test. The call was recorded and the arresting officer later listened to the tape. The defendant's state constitutional right to confer privately with counsel was violated both by the recording and listening. Dismissal is not required as a remedy as the situation did not become known until after the jury began deliberations, and the officer had not testified as to the substance of the conversation.
Waldman v. Waldman
(1976), 48 Ohio St. 2d 176, 358 N.E. 2d 521 --(1) "It is the public policy of this state that an attorney shall not testify concerning a communication made to him by his client in that relation...Even when a communication falls beyond the strict letter of
, the principles of that section apply if the case is plainly within the reason and spirit of it." (2) "It is well-settled that the burden of showing that testimony sought to be excluded under the doctrine of privileged attorney-client communications rests upon the party seeking to exclude it." (3) "When the attorney-client privilege exists, the privilege has been held to encompass the protection of the address of the client.
In re Heile
(1930), 65 Ohio App. 45, 49, 29 N.E. 2d 175," Compare discussion in
Lemley v. Kaiser
(1983), 6 Ohio St. 3d 258, 261-266.
Clark v. United States
(1933), 289 U.S. 1 -- At page 15 discussing the crime-fraud exception to attorney-client privilege: "The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told." Also see
In re Grand Jury Proceedings, Appeal of Unnamed Grand Jury Target
(5th Cir. 1982), 641 F. 2d 199, 203.
Taylor v. Sheldon
(1961), 172 Ohio St. 118 -- Paragraph one of the syllabus: "Where a person approaches an attorney with the view of retaining his services to act on the former's behalf, an attorney-client relationship is created, and communications made to such attorney during the preliminary conferences prior to the actual acceptance or rejection by the attorney of the employment are privileged communications."
State v. Bissantz
(1982), 3 Ohio App. 3d 108 -- Attorney client relationship did not exist between county commissioner and assistant prosecutor who testified against him at bribery trial. Statute making the county prosecutor legal adviser to county commissioners did not establish relationship, and even if such an arrangement had actually been entered into, privilege would not have barred testimony concerning any communication from client about promoting a criminal activity.
Woodman v. Lakewood
(1988), 44 Ohio App. 3d 118 -- A legal memorandum prepared by outside counsel at the request of a city law director, which is protected by the attorney-client privilege, is not subject to disclosure under the Public Records Law.
Cannell v. Rhodes
(1986), 31 Ohio App. 3d 183, 186 -- If communication between client and counsel was not intended to remain confidential, it is not privileged. Where a lawyer had sued to recover fees in an amount and at an hourly rate the client claimed to have been unaware of, evidence could be introduced that she had previously authorized negotiation.
In re Special Grand Jury No. 81-1 (Leon D. Harvey)
(4th Cir. 1982), 676 F. 2d 1005, 1008 -- While the payment of fees and expenses is not usually within the attorney-client privilege, there is an exception when the person invoking the privilege can show a strong probability that disclosure would implicate the client in the very criminal activity for which legal advice was sought. Also see
United States v. Hodge and Zweig
(9th Cir. 1977), 548 F. 2d 1347, 1353;
United States v. Ponder
(5th Cir. 1973), 475 F. 2d 37, 39.
In re Martin, Jr.
(1943), 141 Ohio St. 87 -- (1) At p. 101: "It is now a recognized common-law rule that confidential communications between a client and an attorney are privileged and protected from inquiry when the client is a witness as well as when the attorney is a witness; a client can not be compelled to disclose communications which his attorney will not be permitted to disclose." (2) Pages 103-105: Discussion indicates attorney must answer direct question whether he represents a particular client as the foundation for establishing privilege exists as to further questions.
American Motors v. Huffstutler
(1991), 61 Ohio St. 3d 343 -- Syllabus: "An attorney has no right under the First Amendment to the United States Constitution or Section 11, Article I of the Ohio Constitution to disseminate information protected by the attorney-client privilege. (2) In order to protect the attorney-client and work product privilege, injunctive relief is appropriate, particularly where it is demonstrated that the attorney has already violated the privilege and threatens to continue such practice."
State v. Shipley
(1994), 94 Ohio App. 3d 771 -- Motorist who struck pedestrian on a freeway and left the scene uncertain what had happened contacted counsel who related information to investigating officers. Held that statements related by attorney were inadmissible. (1) Privilege could only be waived by client. (2) Privilege not waived by the presence of the defendant's brother during consultation with counsel. (3) Statement's were not related within the scope of agency. (4) Evid. R. 408 prohibited admission of information provided in compromise negotiations.
Foley v. Poschke
(1941), 137 Ohio St. 593 -- Communication between attorney and client in the presence of a third party may remain privileged if the third party (a private investigator) is an agent of either the client or the attorney.
State v. Delaney
(September 2, 1993), Franklin Co. App. No. 92AP-1408, unreported (1993 Opinions 3681) -- It was error to permit the state to call an expert witness retained by the defense as a rebuttal witness, as there had been no waiver of the attorney-client privilege.
State v. Richey
(1992), 64 Ohio St. 3d 353 distinguished on the basis counsel there failed to object.
State v. Simms
(May 5, 1983), Franklin Co. App. No. 82AP-254, unreported (1983 Opinions 1238, 1245-1246) -- If client has not testified as to matters communicated to counsel, the fact that he has testified as to other matters does not amount to a waiver of the privilege and the attorney cannot be compelled to testify without an actual waiver by the client.
State v. McDermott
(1995), 72 Ohio St. 3d 570 -- Syllabus: "
provides the exclusive means by which privileged communications directly between an attorney and a client can be waived. (
Sweetland v. Miles
, 101 Ohio St. 501... paragraph three of the syllabus, followed;
State v. Post
, 32 Ohio St. 3d 380...paragraph one of the syllabus, modified.) Defendant made revelations concerning a homicide to attorney representing him in another matter. After the defendant told a third party what he had said to the attorney, prosecutor subpoenaed the attorney to testify before the grand jury, asserting that the attorney-client privilege had been waived. Attorney was cited in contempt for refusal to testify. See
State v. McDermott
(1992), 79 Ohio App. 3d 772. Holding means no waiver in such circumstances. Statute requires either express waiver by client, or that the client voluntarily testifies on the same subject.
State v. Billings
(1995), 103 Ohio App. 3d 343 -- Statement by counsel to officer, in defendant's presence, concerning defendant's whereabouts at time of incident, construed as an admission.
State v. Fair
(July 9, 1991), Franklin Co. App. No. 90AP-363, unreported (1991 Opinions 363) -- Disclosures to a "jailhouse lawyer" do not fall within the attorney-client privilege. Compare
Benedict v. State
(1887), 44 Ohio St. 679.
Travelers Indemnity Co. v. Cochrane
(1951), 155 Ohio St. 305, 316 -- The attorney-client privilege is destroyed by voluntary disclosure to others of the content of the statement. Also see
State v. Post
(1987), 32 Ohio St. 3d 380, 385.
Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp.
, 127 Ohio St. 3d 161,
– Syllabus: “Ohio recognizes the common-law self-protection exception to the attorney-client privilege, which permits an attorney to testify concerning attorney-client communications when necessary to establish a claim for legal fees on behalf of the attorney or to defend against a charge of malpractice or other wrongdoing in litigation between the attorney and the client. (2) Attorney work-product, including but not limited to mental impressions, theories, and legal conclusions, may be discovered upon a showing of good cause if it is directly at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere.”
Jackson v. Greger
, 110 Ohio St. 3d 488,
-- Paragraph two of the syllabus: "A showing of good cause under Civ.R. 26(B)(3) requires demonstration of need for the materials - i.e., a showing that the materials, or the information they contain, are relevant and otherwise available." Here the information sought from 1983 representation would have been available through consulting an expert.
State v. Hoop
(1999), 134 Ohio App. 3d 627 -- Defendant sought to obtain name of potential exculpatory witness known to investigator retained by counsel for a codefendant. Before trial he asserted he believed such a witness existed, but in a motion for a new trial it was alleged that the investigator had confirmed the existence of such a witness. (1) No in camera hearing was required before trial, but the court erred in refusing to conduct a hearing once the existence of the witness had been confirmed. (2) Claims of Fifth Amendment privilege, attorney-client privilege and work product do not bar the hearing, but are to be addressed at it. Opinion discusses manned in which such claims may be overcome.
In re Grand Jury Proceedings
(3rd Cir. 1979), 604 F. 2d 798, 801 --(1) "The parameters of the (work product) privilege are still developing but in general the 'work product' label fairly conveys the substance of the concept. It is distinct from and broader than the attorney-client privilege, which protects only communications between the attorney and his client. A lawyer may assert the work product privilege...It is not realistic to hold that it is only the attorney who has an interest in his work product(,) or that the principal purpose of the privilege - to foster and protect proper preparation of a case - is not also of deep concern to the client, the person paying for that work. To the extent a client's interest may be affected, he, too, may assert the work product privilege." Also see
In re Grand Jury Investigation
(Sun Co.) (3rd Cir 1979), 599 F. 2d 1224;
Hickman v. Taylor
(1947), 329 U.S. 495, 505-514;
United States v. Nobles
(1975), 422 U.S. 225, 236;
In re Grand Jury Proceeding (Duffy)
(8th Cir. 1973), 473 F. 2d 840, 842-843;
In re Grand Jury Empaneled Oct. 18, 1979, Appeal of Hughes
(3rd Cir. 1980), 633 F. 2d 282. (2) At page 802: The crime-fraud exception may apply to the work product privilege.
State v. Post
(1987), 32 Ohio St. 3d 380, 385 -- Though defendant's confession to polygraph operator retained by defense counsel was initially protected by attorney-client or work product privilege, disclosure to cellmate that he had made a confession destroyed the privilege.
State v. Dolce
(1993), 92 Ohio App. 3d 687 -- "Audit" consisting of notes prepared by defendant's office manager (later granted immunity and called as a prosecution witness) upon a request from his attorney to examine office files, were not discoverable under Crim. R. 16(C)(1) as the report of an examination or test. In part because the notes were not proffered, the court refuses to classify the notes as work product, finding them to merely be a review of documents otherwise admitted into evidence.
Lawyer as Witness or Potential Witness
See Rule of Professional Conduct 3.7
Mentor Lagoons v. Rubin
(1987), 31 Ohio St. 3d 256 -- Syllabus: "(1) DR 5-102(A) does not render an attorney incompetent to testify as a witness in a proceeding in which he is representing a litigant. When an attorney seeks to testify, his employment as counsel goes to the weight, not the competency, of his testimony. (2) When an attorney representing a litigant in a pending case requests permission or is called to testify in that case, the court shall first determine the admissibility of the attorney's testimony without reference to DR 5-102(A). If the court finds that the testimony is admissible, then that attorney, opposing counsel, or the court sua sponte, may make a motion requesting the attorney to withdraw voluntarily or be disqualified by the court from further representation in the case. The court must then consider whether any of the exceptions to DR 5-102 are applicable and, thus, whether the attorney may testify and continue to provide representation. In making these determinations, the court is not deciding whether a Disciplinary Rule will be violated, but rather preventing a potential violation of the Code of Professional Responsibility." Also see
In re Skrha
(1994), 98 Ohio App. 3d 487, 497-499, which also addresses the failure to file a written motion to disqualify.
Banque Arabe et Internationale v. Ameritrust
(S.D. Ohio 1988), 690 F. Supp. 607, 614 -- "There is no need for an attorney to testify and no basis for his disqualification under DR 5-102(A) when the testimony the attorney could offer would either relate to uncontested issues or prove cumulative or corroborative of other testimony offered." Compare
General Mill Supply Co. v. SCA Services, Inc.
(6th Cir. 1982), 697 F. 2d 704.
State v. Coleman
(1989), 45 Ohio St. 3d 298 -- Paragraph two of the syllabus: "A prosecuting attorney should avoid being a witness in a criminal prosecution, but where it is a complex proceeding and substitution of counsel is not practical, and where the attorney so testifying is not engaged in the active trial of the cause and it is the only testimony available, such testimony is admissible and not in violation of DR 5-102."
State v. Daniels
(1993), 92 Ohio App. 3d 473, 488 -- Court finds no impropriety in calling assistant prosecutor in the Juvenile Division to rebut claims made by the defense. Witness was not actively involved in the prosecution and provided general background information only.
State v. Mabry
(1982), 5 Ohio App. 3d 13 -- Headnote 7: "If defense counsel believes that he 'ought to' be called as a witness on behalf of his client, he must withdraw as counsel in order to appear as a witness in the case, unless he qualifies under any of the exceptions noted in DR 5-101(B)(1) through (4)."
Conflict of Interest
Last updated 3/1/2016
Rule of Professional Conduct 1.7 -- Conflict of interest: current clients
Rule of Professional Conduct 1.8 -- Conflict of interest: current clients: specific rules
Rule of Professional Conduct 1.9 -- Duties to former clients
Rule of Professional Conduct 1.10 -- Imputation of conflicts of interest: general rule
Rule of Professional Conduct 1.11 -- Special conflicts of interests for former and current government officers and employees
State v. Feemrolu
, 3rd Dist. Logan No.8-15-01,
Conviction reversed where the record lacks proof that the court complied with its affirmative duty to properly inquire into the potential conflict of interest when denying attorney's motion to withdraw as counsel.
State v. Johnson
, 185Ohio App. 3d 654,
– At the plea hearing defense counsel revealed the confidential informant in the case was a former client. Defendant waived the conflict and the plea was accepted. Reversed on appeal. Trial court should have held a full hearing on the nature of the conflict. Opinion doesn’t detail matters that might compel separate representation.
In re A.L.
, Franklin App. No. 07AP-638 and 647 -- Trial guardian ad litem worked for a public defender office. It was subsequently learned that the office had provided representation in criminal prosecutions to both parents in termination of parental rights proceedings. Since no party objected at trial, review of claimed conflict of interest is on the basis of plain error. Since the conflict appears to have been unknown to the trial guardian, had no influence on her duties to protect the child‘s interests, and did not affect the integrity of proceedings, reversal is not warranted
Mickens v. Taylor
(2002), 122 S.Ct. 1237 -- After a judge dismissed charges against a juvenile murder victim, he appointed the juvenile's attorney to represent the murderer. Conflict of interest was ultimately identified by habeas counsel. Court declines to adopt an automatic reversal rule. Instead the defendant must demonstrate prejudice following
analysis. Four justices dissent.
Columbus Bar Association v. Ross
, 107 Ohio St. 3d 354,
-- Six month suspended suspension to attorney who did not ignore the possibility of a conflict of interest in continued representation of boyhood friends, but waited too long before exiting their cases. Feds wanted one to identify the other as his drug supplier, but would not provide attorney with more specific information as to a basis for this belief.
State v. Lordi
(2000), 140 Ohio App. 3d 561, 570 -- "Where there is a right to counsel, the Sixth Amendment to the United Stated Constitution guarantees that representation shall be free from conflicts of interest...Both defense counsel and the trial court are under an affirmative duty to ensure that a defendant's representation is conflict free...The trial court's duty arises when the court knows or reasonably should have known a possible conflict of interest exists, or when the defendant objects to multiple representation...When this duty arises, the court is constitutionally required to conduct an inquiry into a possible conflict of interest. A lawyer represents conflicting interests when on behalf of one client, it is his duty to contend for something which his duty to another client requires him to oppose...A possibility of conflict exists when the interests of a defendant may diverge at some point so as to place the attorney under inconsistent duties...If a question of conflict of interest arises after trial, the defendant must prove an actual conflict of interest, as opposed to a serious potential for conflict." No conflict found where an associate represented a witness in the past.
State v. Ahmed
, 103 Ohio St. 3d 27,
-- ¶ 24-33: Capital defendant filed a federal lawsuit against appointed counsel. Court views this as a ruse and refuses to find error in trial court's refusal to discharge counsel. ¶ 102-108: Defendant was not denied his constitutional right to self-representation. Court tendered a waiver form. The defendant added written qualifications and never gave clear responses indicating an understanding of the consequences.
State v. Pelphrey
, 149 Ohio App. 3d 578,
-- Defendant filed a motion to withdraw his guilty plea and alternately sought postconviction relief after new counsel discovered his predecessor represented both the defendant and one of the victims. Court was obliged to conduct a hearing.
State v. Condon
, 152 Ohio App. 3d 629,
-- Prosecutor's office representation of county employees sued civilly by families of corpses photographed at the morgue did not give rise to a conflict of interest forcing disqualification of that office in prosecution of the photographer for abuse of a corpse. ¶ 47: "...(B)ecause the relationship between attorneys in a government office is different from the relationship between those in a private firm. the mere appearance of impropriety in a government office is not sufficient in and of itself to warrant vicarious disqualification."
Holloway v. Arkansas
(1978), 435 U.S. 475 -- Refusal to appoint separate counsel on indication of a conflict of interest arising from representation of multiple codefendants is per se a denial of the Sixth Amendment right to counsel, unless court has taken proper steps to determine risk of conflict is remote. Also see
Glasser v. United States
(1942), 315 U.S. 60.
Cuyler v. Sullivan
(1980), 446 U.S. 335 -- Unless a defendant has been denied the opportunity to object to multiple representation, on collateral review he must demonstrate that an actual conflict of interest denied him effective representation.
State v. Manross
(1988), 40 Ohio St. 3d 180 -- (1) Though not constitutionally required in most circumstances, the better practice is to advise defendants who are represented by the same attorney of their right to effective assistance of counsel and inquire whether they wish separate representation. (2) At p. 182: "A lawyer represents conflicting interests when, on behalf of one client, it is his duty to contend for that which his duty to another client requires him to oppose." [Citing
Columbus Bar Association v. Grelle
(1968), 14 Ohio St. 2d 208.]
Burger v. Kemp
(1987), 483 U.S. 776 -- No
conflict of interest where law partners represented codefendants in separate trials and same attorney prepared appellate briefs in both cases.
State v. Getsy
(1998), 84 Ohio St. 3d 180, 187 -- To violate the Sixth Amendment a conflict of interest must be actual, not just possible. The lawyer's performance must be adversely affected. No conflict found where part time public defender was retained to represent one codefendant and her supervisor represented another.
Kala v. Aluminum Smelting & Refining Co., Inc.
(1998), 81 Ohio St. 3d 1 -- Attorney representing Kala in an employment suit went to work for firm representing the company while appeal was pending. Company's firm disqualified.
State v. Wiles
(1998), 126 Ohio App. 3d 71 -- Former P.D. went to work for the prosecutor's office. It is presumed that he shared information with his new colleagues which could have been used against a former death penalty client in subsequent postconviction proceedings. A hearing was required to rebut this presumption in response to a motion to disqualify the prosecutor's office.
State v. Gillard
(1997), 78 Ohio St. 3d 548 -- Same attorney represented brothers initially charged with the same homicide. One pleaded guilty to discharging a firearm in the city limits, the other received the death penalty. Opinion discusses the distinction between possible and actual conflicts of interests, the constitutional right to conflict free representation, standards for determining when an actual conflict exists and when reversal is required. Court splits on whether facts demonstrate an actual conflict.
State v. Dillon
(1995), 74 Ohio St. 3d 166 -- Though the same defense attorney represented two people charged with similar crimes, one of whom was called as a rebuttal witness at the trial of the other, upon careful analysis of the facts and sequence of events there was no violation of the Sixth Amendment right to conflict free representation. Counsel was found not to have represented conflicting interests and it was concluded that there was neither an actual conflict of interest or the possibility of one.
In re Brodbeck
(1994), 97 Ohio App. 3d 652 -- Court finds no error in the appointment of a single attorney to represent both parents in termination of parental rights proceedings where there was no evidence that the couple planned to separate or dissolve their marriage or that they did not intend to raise their children together.
State v. Ingol
(1993), 89 Ohio App. 3d 45 -- Same attorney represented codefendants. One pleaded guilty, then testified at the trial of the other. Court finds first that there was nothing alerting the court to a possible conflict of interest, requiring inquiry. Nor was there an actual conflict of interest, as both the defendant and the codefendant testified that the defendant had nothing to do with the drug transaction in question.
State v. Walker
(1998), 130 Ohio App. 3d 247 -- Retained counsel was under indictment at time of trial, but no jurors responded when asked if they had any knowledge about the parties or their attorneys which might affect their duties as jurors. Defendant faulted for not personally raising the question of a conflict of interest when this situation was mentioned in his presence. Since counsel was not indicted until after pretrial conferences, court finds her ability to effectively negotiate on her client's behalf was not affected. Compare
United States v. McLain
(11th Cir. 1987), 823 F. 2d 1457 where pending investigation of counsel was found to affect his ability to properly represent his client.
Mahoning County Bar Association v. Theofilos
(1988), 36 Ohio St. 3d 43 -- A lawyer may not ethically prepare a client's will in which he and his son are the sole beneficiaries.
Ussury v. St. Joseph Hospital
(1988), 43 Ohio App. 3d 48 -- Though he is not directly involved in providing representation, an attorney and his new law firm may be disqualified from representing defendant in a case when he previously represented the plaintiff and reviewed materials and provided advise relating to the case.
In re Adoption of Infant Girl Banda
(1988), 53 Ohio App. 3d 105 -- DR 5-107(A) requires full disclosure by the attorney and the consent of the client before the attorney may accept payment for legal services from someone other than the client.
Sturm v. Sturm
(1991), 61 Ohio St. 3d 298 -- Syllabus: "Where a party expressly waives a conflict of interest by a written judgment entry signed by the party, such waiver remains in effect as a matter of law when the action of which it was part is dismissed voluntarily and refiled in another county."
Withdrawal from a Case or Disqualification
Rule of Professional Conduct 1.16 -- Declining or terminating representation
State ex rel. Buck v. Maloney
, 102 Ohio St. 3d 250 -- Probate judge barred two attorneys from practice in his court. The Court of Appeals dismissed their prohibition complaint for failing to state a cause of action. Reversed. Only the Supreme Court has authority to control practice before the courts of this state. The superintendence rules did not delegate the authority to suspend attorneys in these circumstances. Instead of remanding, the court exercises its plenary authority to grant the writ.
State v. Williams
, 99 Ohio St. 3d 493,
, ¶ 130-140 -- Following a guilty verdict at the guilt phase of a capital trial, the defendant hit one of his attorneys in the face. The trial court erroneously overruled motions to withdraw filed by both attorneys.
State v. Williams
, Lucas App. Nos. L-03-1070, 1071,
-- A trial court order disqualifying appointed counsel is not a final appealable order.
State ex rel Kister-Welty v. Hague
, 160 Ohio App. 3d 486,
-- Judge disqualified an attorney from representing the mother in custody proceedings because that attorney had previously represented the child. (1) Prohibition does not lie as the judge acted within the scope of his jurisdiction. (2) Prohibition does not lie as the mother had an adequate remedy at law in the form of an immediate appeal from the disqualification order.
State, ex rel Kura, v. Sheward
(June 11, 1992), Franklin Co. App. No. 90AP-791, unreported (1992 Opinions 2451) -- An individual trial judge, who is not the administrative judge, may not summarily discharge the public defender office as counsel based on the claimed tardiness of an individual attorney assigned to handle the case. The remedy when court has erroneously done so is through immediate appeal.
State, ex rel Jones, v. Stokes
(1989), 49 Ohio App. 3d 136 -- Trial judges are without authority to order the public defender to not assign a particular employee to their courtrooms.
United States v. James
(2nd Cir. 1983), 708 F. 2d 40 -- No abuse in disqualifying attorneys on motion of government and former client where defense planned to claim entrapment of present clients by former client.
United States v. Cunningham
(2nd Cir. 1982), 672 F. 2d 1064 -- Trial court erroneously overruled government's motion to disqualify defense counsel who had formerly represented a witness. Defendant had been successfully represented by same attorney for many years, witness did not ask for attorney to be disqualified and counsel and defendant agreed that any privileged information would not be used in cross-examination of the witness.
Maple Heights v. Redi Car Wash
(1988), 51 Ohio App. 3d 60 -- Prior to sentencing hearing court disqualified assistant city prosecutor who had initiated a libel suit against defendants he had prosecuted and who had threatened filing of additional charges. At p. 61: "Under appropriate circumstances, an attorney may be disqualified from continued participation in ongoing litigation in the event of truly egregious misconduct which is likely to infect future proceedings, and this authority to disqualify an attorney does not conflict with the Ohio Supreme Court's exclusive authority over attorney disciplinary proceedings."
Morgan v. North Coast Cable Co.
(1992), 63 Ohio St. 3d 156 -- Syllabus: "As a general rule, a stranger to an attorney-client relationship (here another party to the litigation in progress) lacks standing to complain of a conflict of interest in that relationship."
Guccione v. Hustler Magazine
(1985), 17 Ohio St. 3d 88 -- Syllabus: "An order denying permission for out-of-state counsel (otherwise competent) to represent a litigant is a final appealable order. Appears to overrule
Bernbaum v. Silverstein
(1980), 62 Ohio St. 2d 445 -- Syllabus: "The overruling of a motion to disqualify counsel is not an order made in a special proceeding and is, therefore, not a final appealable order as defined by
Melling v. Stralaka
(1984), 12 Ohio St. 3d 105 -- A trial court may not usurp the constitutional authority of the Supreme Court to make rules governing the admission to the practice of law and the discipline of persons so admitted by issuing an order barring city solicitors, law directors, municipal and county prosecutors and their assistants from appearing in criminal cases. Also see
In re a Juvenile
(1978), 61 Ohio App. 2d 235.
Trumbull County Bar Association v. Donlin
(1996), 76 Ohio St. 3d 152, 155 -- "While it probably would have been more prudent of respondent to have notified his client in writing that he would not handle the case further, the fact that it was not reduced to writing does not rise to the level of a violation under DR 2-110(A)(2)."
Verbanic v. Verbanic
(1994), 70 Ohio St. 3d 41 -- The judge owes a duty to both sides to insure proceedings are conducted in a dignified and legal manner. Attorney in a divorce trial should have been removed. Among his triumphs were calling the judge a sick man and telling his he would not see Christmas, pushing another attorney, and suggesting that the husband had AIDS. He also failed to introduce necessary testimony.
Wooden v. Kentner
, 153 Ohio App. 3d 24,
-- Summary judgment properly granted in a malpractice action against a public defender office and two employees. Public defenders are engaged in a governmental function and are immune from liability unless an exception to the general grant exists. Such an exception might arise pursuant to former
pertaining to negligence on premises used in the performance of a public function. But that statute has been amended to now cover only physical defects in a building. Under the former version, the defense existed that the acts complained of were within the discretion of an employee. That applies to the efforts of an attorney. In this action there was no claim immunity was pierced by acts beyond the scope of employment, malice or statutory exception.
Smith v. Conley
, 109 Ohio St. 3d 141,
-- Former client in a criminal case brought a malpractice action that was timely if measured from the time counsel filed a motion to withdraw but untimely if measured from the time the client was notified that the attorney-client relationship was terminated. Held that the date of termination is a question of fact to be determined by considering the action of the parties. It is not controlled by local rules of court.
Krahn v. Kinney
(1989), 43 Ohio St. 3d 103 -- Syllabus: "To state a cause of action for legal malpractice arising from criminal representation, a plaintiff must allege (1) an attorney-client relationship giving rise to a duty, (2) a breach of that duty, and (3) damages proximately caused by the breach."
Huffer v. Cicero
(1995), 107 Ohio App. 3d 65 -- Retained counsel failed to convey plea offer to client. Court properly granted default judgment on issue of liability, in view of efforts to dodge service and failure to file a timely answer. Damages were limited to the $16,000 paid counsel. Held should also have included the $10,000 in additional fines paid, $1,217 in court costs, a $1,000 bond, and $26,500 in attorney fees following conviction.
Belcher v. Lesley
(December 12, 1995), Franklin Co. App. No. 95APE05-662, 663, unreported (1995 Opinions 5235) -- Malpractice action brought on claim of ineffective assistance of counsel also asserted in direct appeal. Statute of limitations for filing malpractice action began to run as of the day the appellate brief was filed. Fact issue was lost on appeal did not bar malpractice action under the doctrine of res judicata, since malpractice was not a claim which could have been litigated in the appeal. Nor did pursuit of a postconviction action prevent simultaneous litigation of a malpractice action.
Unauthorized Practice and Other Issues
Cuyahoga County Bar Association v. Spurlock
, 96 Ohio St. 3d 18,
-- Non lawyers may not exploit next friend status to prepare and file documents. A next friend must provide an adequate explanation why the real party in interest can not appear on their own behalf and must be truly dedicated to the best interests of that person. Also see
Whitmore v. Arkansas
(1990), 495 U.S. 149, 163-165.
In re Lawson
(1994), 98 Ohio App. 3d 456 -- A child welfare agency may only appear in court through counsel. Thus a continuance request made by an attending non-attorney caseworker was not proper and "cannot be sanctioned."
Hill v. Hill
(1993), 88 Ohio App. 3d 447 -- Non-attorney representative of support enforcement agency should not have been permitted to make a recommendation to the court as to what the agency sought.
Washington County Department of Human Services v. Rutter
(1995), 100 Ohio App. 3d 32 -- Statute allowing non-lawyer employee of human services department to sue in small claims court and to appear in small claims court on behalf of the department is unconstitutional. At p. 37: "The General Assembly has no authority to authorize lay persons to appear before the courts of this state in a representative capacity for another entity and the Ohio Supreme Court has taken no action to sanction such conduct."
State v. Brown
(1995), 108 Ohio App. 3d 489 -- Disbarred attorney could be convicted of theft for having continued to practice law.
, which proscribes falsely representing oneself to be an attorney, is not a specific statute precluding prosecution under the general theft statute.
Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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