Melling v. Stralka

William B. Brown, J.,

dissenting. I dissent to the majority’s opinion based on the analysis and reasoning set forth by Judge Markus in dissent in the court of appeals’ decision rendered in this case.

Locher, J., dissenting. After a careful review of Judge Stralka’s position, I am of the belief that the majority position is not in conformity with the ethical mandate to avoid the appearance of impropriety. Accordingly I dissent.

In the recent case of State, ex rel. Waite, v. Berry (1984), 11 Ohio St. 3d 53, I made it clear in my concurrence that when public prosecutors represent private citizens, “[t]he potential for abuse is * * * too substantial” to allow a slackening of the standards used in our profession. Any such lessening of standards erodes “the trust of the public in our judicial system.” Id. at 55.

The reasons for my concern are articulated and embodied in Canon 9 of the Code of Professional Responsibility and Canon 2 of the Code of Judicial Conduct. These Canons mandate the responsibility of bar and bench to avoid even the appearance of impropriety. Judge Stralka’s order, contrary to the view of the majority, is not a “disciplinary rule” — it is an implementation of accepted judicial ethical standards. This position is buttressed by professional ethics committees. See A.B.A. Opinions of the Committee on Professional Ethics (1967) 277, Formal Op. No. 34 (March 3, 1931); Ohio State Bar Assn. Committee on Professional Ethics (1967), Informal Op. No. 67-1; (1975), Informal Op. No. 75-12; (1977), Informal Ops. Nos. 77-10 and 77-17; (1981), Informal Op. No. 81-4. This position is buttressed by Ohio Attorney General opinions. See 1971 Ohio Atty. Gen. Ops. No. 71-050, at 2-170; 1966 Ohio Atty. Gen. Ops. No. 66-159 at 2-335; 1967 Ohio Atty. Gen. Ops. No. 67-112, at 2-176. This position is also buttressed by courts in other jurisdictions. See People v. Rhodes (1974), 12 Cal. 3d 180, 115 Cal. Rptr. 235, 524 P. 2d 363. See, also, Annotation (1982), 18 A.L.R. 4th 360, Sections 3, 15 and 19, as well as federal court decisions where the “Seventh Amendment to the federal Constitution mandates efforts by the trial judge to exclude defense counsel from representation where such conflicts are apparent. Glasser v. United States (1942), 315 U.S. 60; Holloway v. Arkansas (1978), 435 U.S. 475; Cuyler v. Sullivan (1980), 446 U.S. 335.” Melling v. Stralka (June 27, 1983), Cuyahoga App. No. 45622, unreported, dissenting opinion by Markus, J., at 3.

It should be readily apparent that notwithstanding the pecuniary interests of the public employees affected by Judge Stralka’s order, working for the state while representing parties against the state is a basic conflict of interest proscribed by the Code of Professional Responsibility, DR 5-105, EC 5-1, EC 5-14 and Canon 7, as well as by simple common sense. Although practical concerns have allowed dual representation in certain civil matters, it is entirely understandable and laudable that Judge Stralka exclude dual representation in his courtroom with respect to criminal matters unless both the appropriate legislative body and the defendant/client consent.

*109While Judge Stralka may be the ostensible loser by the majority decision today, in reality it is our profession that once again is exposed to potential public deprecation. Judge Stralka’s concern, however, is a moral victory for those who would place ethics over pecuniary concerns.

The trial judge is on the front lines of our judicial system. Accordingly he should be given our support, not our condemnation, for seeking to improve the judicial system in conformity with the practical exigencies of day to day legal practice which the trial judge is in the best position to evaluate. In order to assure fairness to the accused and to sustain public confidence in the integrity and impartiality of the criminal justice system, Judge Stralka’s approach is reasonable.

Accordingly I dissent.