Under the former Ohio Code of Judicial Conduct, could a probate-juvenile judge serve on the board of trustees of a not-for-profit fund-raising foundation whose proceeds went to agencies that appeared in the judge's court?
Ohio BPC Opinion 87-003: Judge as Member of Board of Trustees for Not-For-Profit Foundation
Short answer: The Board concluded that service by a probate-juvenile judge on the board of a not-for-profit foundation whose primary objective was fund-raising for mental-health agencies that appeared in the judge's court might well create a conflict with the judge's duties under the former Ohio Code of Judicial Conduct. The Board was later withdrawn this opinion by Board action on December 5, 1997 in light of Opinion 89-29.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
The Board's status list flags this opinion as Withdrawn by Board action on December 5, 1997 in light of Opinion 89-29. The opinion was issued under the former Ohio Code of Judicial Conduct (1973), which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009. Treat this page as historical context, not current guidance. Do not rely on the former Canons 2, 3C(1)(d)(i), 5B(1), 5B(2), or 5B(3) references as current Ohio rules. Verify against current rules before acting.
Plain-English summary
A probate-juvenile judge asked whether he could serve on the board of the Clark County Mental Health Foundation, whose primary goal was fund-raising for the various mental-health agencies in his county. The judge presided over cases in which the Foundation-supported agencies were directly or indirectly involved.
The Board began with Canon 2 of the then-Ohio Code of Judicial Conduct, which required judges to avoid both impropriety and the appearance of impropriety, and stressed that a judge should not serve on the Foundation if doing so lent the appearance of impropriety. The Board then turned to Canon 3C(1)(d)(i), which required disqualification when the judge was a trustee of a party to a proceeding; on those facts, if the Foundation became a party, the judge would have to disqualify.
The Board treated Canon 5B as the central provision. Canon 5B allowed civic and charitable participation generally, but Canon 5B(1) barred service when the organization was likely to be a party in or regularly engaged in adversary proceedings, and Canon 5B(2) required disqualification in any case in which the judge's decision could affect the organization. Canon 5B(3) was identified as the largest obstacle: it prohibited solicitation of funds, the use or permission of use of the prestige of the judicial office for solicitation, and serving as a speaker or guest of honor at fund-raising events. Because the Foundation's prime objective was fund-raising and the Foundation's bylaws so provided, the Board concluded that membership on the Foundation's board might well create a conflict with the judge's duties.
Common questions
Q: What was the Board's central concern under former Canon 5B(3)?
A: The Board identified the prohibition on judicial solicitation of funds (and on use or permitted use of the prestige of the judicial office for solicitation) as the principal obstacle. Because the Foundation's bylaws made fund-raising its prime objective, the Board concluded that membership might well violate this prohibition.
Q: When did Canon 5B(2) require disqualification?
A: The Board read Canon 5B(2) to require that a judge who served as an officer or board member of an organization disqualify himself from any case in which his decision could affect that organization. The Board noted that the judge would thus have to disqualify from any case affecting the Foundation.
Q: Did the Board distinguish between fund-raising and other civic activity?
A: Yes. The Board reproduced Canon 5B's general permission for civic and charitable service and identified the fund-raising aspect of the Foundation, not service in the abstract, as the source of the conflict. Service that could be completely separated from fund-raising might not violate the former Canon.
Q: Why was the opinion withdrawn?
A: The Board's status list states the opinion was withdrawn by Board action on December 5, 1997 in light of Opinion 89-29. The 1987 opinion does not itself analyze the post-1997 framework.
Citations and references
Rules of Judicial Conduct:
- Former Canon 2, Ohio Code of Judicial Conduct (1973)
- Former Canon 3C(1)(d)(i), Ohio Code of Judicial Conduct (1973)
- Former Canon 5B(1), (2), and (3), Ohio Code of Judicial Conduct (1982)
Cases:
- State ex rel v. Marshall, 123 Ohio St. 586, 587 (1931)
- In Re Hopkins' Will, 6 Dem. 12, 19 NYSR 528 (1888)
- Askounes' Liquor License Case, 144 Pa. Super. 293, 19 A.2d 846 (1941)
Other opinions cited:
- ABA Standing Committee on Professional Ethics, Formal Op. 322 (1969): impression and appearance of propriety in judges' personal conduct
- ABA Committee on Ethics and Professional Responsibility, Informal Op. C-706 (1963): when conflicting obligations require a judge to choose between positions
- ABA Committee on Ethics and Professional Responsibility, Formal Op. 238 (1942): use of a judge's name in solicitation
- ABA Committee on Ethics and Professional Responsibility, Informal Op. 603 (1962): rationale for the bar on judicial solicitation
See also
- Ohio BPC Opinion 1986-002: Judge Teaching University Class
- Ohio BPC Opinion 1987-009: Retired Judge on Courthouse Restoration Committee
- Ohio BPC Opinion 1987-013: Judge on Hazardous Materials Task Force
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-003.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 87-003
[Withdrawn- by Board on Dec. 5, 1997 due to Op 89-29]
SYLLABUS: A judge may serve as a member of the Board of Trustees for an incorporated not-for-profit foundation, PROVIDED such activity does not create a conflict of interest with the judge's official function, does not involve solicitation of funds by the judge or by others using the judge's name, and does not violate the mandatory standards set forth in the Code of Judicial Conduct including avoiding even the appearance of impropriety.
TO: Honorable David D. Mattes, Judge Clark County Juvenile Center
FROM: The Board of Commissioners on Grievances and Discipline of the Judiciary
DATE: May 18, 1987
We have before us your request for our opinion on whether you, as probate-juvenile judge, can serve on the Board of the Clark County Mental Health Foundation (the "Foundation"). It is our understanding that the Foundation's primary goal is fund-raising, with the proceeds going to the various mental health agencies in Clark County. In addition, as indicated in your request letter, as probate-juvenile judge, you hear cases in which agencies to be supported by the Foundation are directly or indirectly involved.
At the outset, before specifically addressing disqualification and conflicts, let us direct you to Canon 2 of the Code of Judicial Conduct as adopted in Ohio. Under Canon 2, a judge must not only avoid impropriety but must also avoid the appearance of impropriety. "It is of vital importance that the litigant should believe that he will have a fair trial." State ex rel v. Marshall, 123 Ohio St. 586, 587 (1931). Similarly, a formal opinion issued by the ABA Committee on Professional Ethics stated: "[a]ll judges of the lowest as well as highest courts must in all their personal business and social intercourse act not only in a manner that is lawful and proper but one which gives the impression and appearance to the public that it is proper." ABA Standing Committee on Professional Ethics, Formal Op. 322 (1969).
Therefore, if being a member of the Foundation's Board in any way lends the appearance of impropriety to your judicial duties then you should not serve on the Board or, in the alternative, step down from the bench. "Because of the position of the courts and because the needs of the citizens to understand that the courts are above reproach, the lives of our judges are far more circumscribed than the rest of us." Id. at 5.
Canon 3C(1)(d)(i) of the Code of Judicial Conduct requires a judge to disqualify himself if he is a party or a trustee of a party to the proceeding. Code of Judicial Conduct, Canon 3C(1)(d)(i) (1973). Thus, if the Clark County Mental Health Foundation were a party in any capacity in your courtroom and you were a trustee of the Foundation then your disqualification as judge would become a necessity.
Canon 5, which is relevant to your particular situation is entitled, "[a] judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties." Canon 5B states:
B. Civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:
(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.
(2) A judge should disqualify himself in any case in which the decision could affect any organization which he serves as either an officer or member of the board.
(3) A judge should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of his office for that purpose, except he may participate as a member in solicitations limited to members of an educational, religious, charitable, fraternal or civic organization of which he is a member, and he may be listed as an officer, director, or trustee of such an organization. He should not be a speaker or the guest of honor at an organization's fund raising events, but he may attend such events. Code of Judicial Conduct, Canon 5B (1982).
Based on the information contained in your request letter, it is unclear whether your particular situation violates Canon 5B. This Canon allows judges to participate in activities, such as the Clark County Mental Health Foundation, provided such activity does not interfere with the judges' proper and expeditious administration of his or her official function. However, if it is likely the Foundation is, or will become involved, or regularly engaged, in proceedings in your courtroom then a conflict would arise. In this regard, it was stated in an ABA ethics opinion that "[i]f conflicting obligations in fact exist and cause interference with the judge's devotion to his judicial duties, then he must choose between the two positions and forego one or the other." ABA Committee on Ethics and Professional Responsibility, Informal Op. C-706 (1963).
In addition, Canon 5B(2) of the Code of Judicial Conduct requires a judge to disqualify himself from any case where his decision could affect any organization which he serves as an officer or board member. Therefore, as Probate-Juvenile Judge and a Foundation board member, you must disqualify yourself from any case which would affect the Foundation. It has been held however, that a judge who is an officer of a non-profit corporation interested in a case is not disqualified to hear the case. In Re Hopkins' Will, 6 Dem. 12, 19 NYSR 528 (1888). But see e.g., Askounes' Liquor License Case, 144 Pa. Super. 293, 19 A.2d 846 (1941).
The greatest difficulty with you becoming a board member of the Foundation relates to its prime objective of fund-raising as noted in the by-laws (Article 11, Section 1). Canon 5B(3) of the Code proscribes solicitation of funds by any judge. The ABA Standing Committee on Professional Ethics has prohibited judges from becoming involved in solicitation of funds for charitable purposes. ABA Standing Committee on Professional Ethics, Formal Op. 322 (1969). Further, the ABA Committee has held that a judge should not permit the use of his name for the purpose of solicitation of funds. ABA Committee on Ethics and Professional Responsibility, Formal Op. 238 (1942).
The basic objective behind prohibiting judges from soliciting funds for organizations is to eliminate the use or appearance of use of the power and prestige of the judicial office to persuade others to contribute funds. ABA Committee on Ethics and Professional Responsibility, Informal Op. 603 (1962). If, as a member of the Foundation's Board of Trustees, one is required to solicit funds or permit use of his or her name in any fund-raising effort then, judges would be prohibited from accepting such a position.
In regard to extra-judicial activity, the ABA Committee has held:
Although there may be no inherent impropriety in any specific act performed by a judge, a person in this position must give serious thought to, the weight of his judicial position and dignity and is cautioned against permitting any person to throw onto the scales of justice the weight of his judicial position. . . . [T]he public must have absolute faith in the competence and integrity of the courts and must have complete belief that the places of justice are wholly untainted and untarnished by scandal or suspicion. ABA Standing Committee on Professional Ethics, Formal Op. No. 322 (1969).
In conclusion, "[a] judge should not undertake any obligation or enter into any relationship of any kind or nature whatsoever which might in any way be inconsistent with his duties and obligations as a judge." Id. at 7. Therefore, in light of the considerations discussed herein, it is our opinion, and you are so advised, that membership on the Foundation's Board of Trustees might well create a conflict with your duties as Probate-Juvenile Judge in Clark County.
This opinion is advisory in nature, is based upon the facts as presented and is limited to questions arising under the Code of Judicial Conduct.
JAMES W. MASON, Esq.
Secretary, Board of Commissioners
Grievances and Discipline
of the Judiciary of
The Supreme Court of Ohio