UPDATED: Judge, attorneys debate whether conflict exists in Highland County Juvenile Court case

A “spirited debate” was held during a pretrial hearing in Highland County Juvenile Court Friday afternoon, as parties are at odds over whether a conflict exists with the prosecution of a juvenile in the custody of Highland County Children Services.

The juvenile in this matter is alleged to have had sexual contact with a child under the age of 13 and faces the equivalent of first-degree felony rape and third-degree felony gross sexual imposition charges.

During an initial pretrial April 17, Highland County Juvenile Court Judge Kevin Greer alluded to a potential need for another attorney to represent Highland County Children Services, the agency that has permanent custody of the alleged offender. 

According to the discussion at Friday’s pretrial, the Highland County Prosecutor’s Office, defense counsel Denny Kirk and Judge Greer himself have all reached out to Ohio’s Office of Disciplinary Counsel, with conflicting results.

Highland County Prosecutor Anneka Collins said that assistant prosecutor James Roeder advised her of Greer’s concerns, and she placed a call to the Office of Disciplinary Counsel, which she and her assistant prosecutors listened to on speaker phone. The attorney with whom Collins spoke, on two occasions, “advised that they don’t see a conflict at all.

“She said that because the court did bring it up, that having the juvenile waive any perceived conflict would suffice,” Collins said. 

The prosecutor said “for the past 18 years, I have  prosecuted other kids in the permanent custody of the agency,” and if it is an issue, she would have to self-report.

“[The Office of Disciplinary Counsel attorney] said that one of the main reasons that it's not an issue is because juvenile court is focused on rehabilitation of the juvenile,” Collins said. “The problem would arise if parties were in disagreement about it. Then there could be a conflict, especially if law enforcement and the agency were in disagreement.”

In this case, Collins said that all parties, including the agency, law enforcement and the victim’s family, were in agreement on a proposed resolution. 

Collins added that she also reached out to prosecutor’s offices in neighboring counties, both of which said “it’s never been an issue, never been brought up.

“I don't feel that the prosecutor's office has a conflict in representing law enforcement for the State of Ohio and representing the agency in this matter,” she said.

Greer then asked Kirk to weigh in, and the defense attorney advised that his client “doesn’t perceive” any issues and would be willing to “waive anything” as indicated by Collins. 

“To cover myself, I also called the Disciplinary Counsel and spoke to a different individual,” Kirk said. “He indicated to me that as long as my client has proper representation, and is not caught in the middle of any type of conflict [between the agency and law enforcement], they do not feel that there would be an issue.”

Greer then shared his feelings on the matter and told the other attorneys, “Feel free to disagree with the court; we’ll have a spirited debate.”

Greer said that the Highland County Children Services agency has had permanent custody of the juvenile for several years at this point, and the agency’s “primary purpose is to try to seek out what’s in the best interest of the child.” That could conflict with “law enforcement’s goal,” which is to “successfully prosecute” the two charges, and juvenile court’s purpose “to hold the offender accountable and to protect the public interest,” the judge said.

Greer said that he had contacted the Disciplinary Counsel office and spoken to a third attorney in April, and what he was told did not match the opinion shared with the prosecutors. The judge said he called again this week and told the Disciplinary Counsel office that he and the prosecutor's office had received conflicting information. 

During Greer’s conversation with the Disciplinary Counsel office this week, the Disciplinary Counsel attorney advised that in a larger prosecutor’s office with separate divisions, “it may be OK,” but again indicated a potential “problem” with this particular case.

“It certainly appears there's some question whether this is OK or not,” Greer said. 

The judge said the Disciplinary Counsel attorney advised that “to be safer,” it would be best to “get somebody else to prosecute” the case due to the prosecutor’s office representing the agency for several years in matters involving this juvenile. 

Collins asked “how that would be a conflict” given that they are treating the juvenile “the same as we would” any other juvenile charged with the same offenses. She also asked how a conflict exists when other juveniles in the permanent custody of HCCS have also been prosecuted in the past, and “it’s never been a problem before.”  
 
Greer again reiterated the “potential conflict in my mind” exists in the differing “goals” of the agency and law enforcement.

“When we're talking about serious felonies here, and different dispositions possible, it's just an issue,” Greer said. “I'm talking about today's case. If you want to have an academic debate about others, I'll have to pull the files out and have an answer for you.”
 
Greer said he would “be fine” with proceeding if they can get an opinion in writing from the Disciplinary Counsel’s office. 

“I want the correct opinion to be applied in these cases so we don't have problems down the road,” the judge said. “We have conflicting opinions here from people in the same office.” 

Until then, however, the judge said he didn't “believe we can go any further today.” Greer told Collins that the other potential way to “get this case resolved” is to get another attorney appointed to represent the HCCS agency.

“I'd rather just get an opinion, honestly,” Collins said. 

Greer said he would seek an official opinion, “and then we can move on.” The judge then asked for the status of the case, and Collins said, “We have the case resolved” with all parties in agreement. 

“Well, you’ve got one other person to approve it, and you're looking at him, so we'll just have to wait and see where we are on the issue of a potential conflict,” Greer said.

During the hearing, Greer also said he had a copy of a formerly issued opinion from the Ohio Board of Professional Conduct, which he shared with Collins and Kirk. The opinion was provided to The Highland County Press on May 13.

The opinion, issued Oct. 4, 2019, is titled “County Prosecutor’s Office’s Representation of Adverse Clients” and describes whether conflicts of interest exist if a prosecutor’s office “prosecutes a delinquency case against an alleged juvenile offender when the prosecutor also represents the county job and family services department in a matter involving the same juvenile.” 

According to the opinion, “On occasion, the concurrent representation of JFS and the state involves the same juvenile, which each client seeking different dispositional outcomes.” (However, as mentioned, Collins indicated that in this case, Children Services and the state are in agreement on the “dispositional outcome.”) 

The opinion references one of the Rules of Professional Conduct, which states that “a lawyer’s acceptance of continuation of representation of a client creates a conflict of interest if the representation of that client will be directly adverse to another current client.” 

The opinion finds that if “the state and JFS seek different dispositional outcomes in two different forums involving the same juvenile,” or if “there is a substantial risk that the ability of an assistant prosecuting attorney to consider, recommend or carry out the representation of one of the clients will be materially limited by the responsibilities of representing the other client,” then a conflict of interest exists.

“This conflict requires the prosecutor’s office to (1) decline or discontinue representation and utilize outside or special counsel, (2) or consider other permissibly ethical steps to ameliorate the conflicts utilizing lawyers in the prosecutor’s office,” the opinion says.

To “ameliorate the conflicts,” the opinion says that “the assignment of different assistant prosecutors to each client … can be utilized to resolve conflicts of interest.”
  
In response to a question from The Highland County Press, the Juvenile Court office confirmed Monday that this opinion “did not resolve the issue” at hand.

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