The Ohio Board of Professional Conduct today issued advisory opinions on attorney transfer of shares in a law firm to a trust and representation of governmental clients and criminal defendants in unrelated matters by the same law firm.

Advisory Opinion 2019-02 replaces a 2002 advisory opinion and provides further guidance to lawyers considering the transfer of his or her interests or shares in a law firm to a revocable trust. The board concludes that a lawyer may not title his or her interests or shares as transfer-on-death to a trust due to rules that prohibit a lawyer from practicing in a law firm if a non-lawyer has an ownership interest in the firm. Because a transfer-on-death of shares in a law firm to a trust may eventually lead to an heir of a non-lawyer holding an ownership interest, remaining lawyers in the firm would be unable to maintain compliance with either rule. This opinion withdraws Adv. Op. 2002-12.

Advisory Opinion 2019-03 addresses conflict-of-interest issues that arise when a lawyer in a firm represents a municipality in real estate matters while another lawyer in the same firm seeks to represent criminal defendants before the same municipality. Based on a rule prohibiting the current representation of clients who are directly adverse to one another, the board concludes that, absent the consent of both clients to the conflict, the representation of the adverse clients would be prohibited even in unrelated matters. In keeping with its longstanding view that a governmental entity cannot waive a conflict of interest on behalf of the public in a criminal prosecution context, the board cautions lawyers against seeking consent from a governmental entity.

The Supreme Court has indicated that it will be reviewing Adv. Op. 2019-3 and may propose amendments to the Rules of Professional Conduct in response to the opinion.

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