The Ohio Board of Professional Conduct has issued an advisory opinion concerning the representation of current or former clients in unrelated matters when the clients are directly opposed.

Advisory Opinion 2019-01 replaces a 1988 opinion concerning a lawyer’s representation of employers in workers’ compensation matters when the lawyer represents the claimant employee in unrelated matters.

The former opinion also addressed whether a lawyer may withdraw from the representation of the claimant employee in order to undertake the more profitable representation of the employer. The opinion analyzes the same questions previously posed to the board, but under the current Rules of Professional Conduct.

In the new opinion the board reiterates that absent informed written consent of the client, lawyers may not represent clients who will be directly adverse to another client the lawyer is representing in an unrelated matter.

The board finds that the situation creates a conflict of interest because there is a substantial risk that the lawyer’s duties to one client may be materially limited by the responsibilities to the adverse client or the lawyer’s own personal interests.

Ohio courts and other jurisdictions have historically declined to uphold a practice, known as the “hot potato” doctrine, in order that the lawyer or law firm may undertake the representation of a new client under a less-stringent conflict of interest analysis. The board consequently holds that a withdrawal from representation under the “hot potato” doctrine is not ethically appropriate and does not constitute “good cause” for withdrawal under the conduct rules.

The opinion also addresses questions concerning the representation of clients involving former clients in matters that are not substantially related and the ability of lawyers to recommend other lawyers to prospective clients when the lawyer is unable to undertake representation due to a conflict of interest.

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