Court News Ohio
Court News Ohio
Court News Ohio

Cross-Examination of Former Client on Prior Conviction Permissible

Image of an attorney questioning someone in court

A lawyer’s continuing duties to a former client is the focus of a new Board of Commissioners on Grievances & Discipline advisory opinion.

Image of an attorney questioning someone in court

A lawyer’s continuing duties to a former client is the focus of a new Board of Commissioners on Grievances & Discipline advisory opinion.

A lawyer may cross-examine a former client in a subsequent, unrelated case so long as the lawyer does not violate his or her continuing duties to the former client, according to an advisory opinion issued this week by the Ohio Supreme Court Board of Commissioners on Grievances & Discipline.

Opinion 2013-4 concerns whether a public defender who represented a former client in a criminal case that ended in a conviction may present evidence of the conviction to impeach the former client.

“Impeachment of the former client violates Prof.Cond.R. 1.9(c) because the public defender would be using information relating to the prior representation to attack the credibility of the former client, which would disadvantage the former client,” the opinion’s conclusion states. “However, the public defender may proceed with the current representation if the former client’s criminal conviction is generally known, the use of former-client information is permitted or required by the Rules of Professional Conduct, or the former client provides informed consent.”

The board concluded that a number of factors indicated that a criminal conviction is “generally known.”

Opinion 2013-4 expands on a statement from a previous opinion, which addressed the imputation of conflicts in a public defender’s office. In addition to Rule 1.9, Opinion 2013-4 also considers Rules 1.4, 1.6, and 1.7 of the Ohio Rules of Professional Conduct.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.

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