The Ohio Board of Professional Conduct has issued two opinions to replace opinions it previously issued under the former Code of Professional Responsibility. The board also withdrew a 1994 opinion in light of the adoption of a rule that addresses the content of the opinion.

Advisory Opinion 2020-04 advises lawyers about the dual representation of clients in unrelated and separate matters. The opinion examines the need for lawyers and their law firms to consider material limitation conflicts that may arise when a lawyer seeks to represent separate clients who both have an interest in the outcome of the same matter. 

The board advises withdrawal from the representation of one client if the lawyer or firm cannot obtain the informed, written consent of both clients to the conflict. The opinion replaces Adv. Op. 88-021.

Advisory Opinion 2020-05 approves, in limited situations, a law director acting as an advocate at a trial when another lawyer in the same office will testify as a witness in the case. The limited situations include when the witness’ testimony is permitted by common law, when the testimony is related to an uncontested matter or the nature and value of legal services rendered, or when the disqualification of the law director or assistant law director would work a substantial hardship on the client city.

The determination of whether there is a substantial hardship requires the consideration of multiple factors, including whether the testimony is available elsewhere.  The board advises that the law director must ensure that the employee-witness is not involved in the prosecution of the case and is effectively screened.  The opinion replaces Adv. Op. 2003-05.

The board also withdrew Advisory Opinion 1994-07 that addressed the ethical obligation of a lawyer who provides law-related services through an ancillary business.  The advice contained in the 1994 opinion is now addressed in Rule 5.7 of the Ohio Rules of Professional Conduct.