In Ohio, the legal ethics rules provide that there may be circumstances in which a government lawyer may undertake a representation of multiple clients where a private lawyer may not.1 Accordingly, given their statutory duties to represent county officials and entities, county prosectuors will often go the extra mile to ameliorate conflicts of interest arising from the representation of multiple governmental clients. However, when an irreconcilable or nonconsentable conflict arises, the county prosecutor’s office must withdraw and engage special counsel to represent the affected clients.2
As with private lawyers, a conflict of interest arises for a county prosecutor when the multiple statutory clients’ interests are directly adverse or when there is a substantial risk that the county prosecutor’s ability to represent one client will be materially limited by responsibilities to the other client.3 Whether representation of multiple statutory clients may be provided by different assistant county prosecuting attorneys employed in the office of the county prosecutor depends upon whether the conflict of interest is resolvable or instead is nonconsentable.
Permissible Representation of Multiple County Officials or Entities in Negotiations. A county prosecuting attorney may represent multiple clients in the negotiation of a contract or a memorandum of understanding except when there is a conflict of interest that cannot be resolved by the lawyer and the affected clients or when there is a nonconsentable conflict of interest.4
Prohibited Representation of Multiple Statutory Clients in Litigation. Legal ethics rules prohibit a county prosecuting attorney from representing multiple clients in the filing of an action by one statutory client against the other before a tribunal, mediator, arbitrator or administrative agency, even through different assistant county prosecuting attorneys.5 If a dispute between multiple statutory clients results in the filing of a lawsuit or other adversarial proceeding by one county official or entity against the other, the county prosecutor must withdraw from representing either of the clients and special counsel must be appointed.