Under the former Ohio Code of Judicial Conduct, could a retired judge eligible for recall to judicial service serve as a member or co-chairperson of a courthouse restoration committee whose function included raising one million dollars in private donations?
Ohio BPC Opinion 87-009: Retired Judge as Member of Courthouse Restoration Committee Engaged in Fund-Raising
Short answer: The Board concluded that, under Compliance Section C of the former Ohio Code of Judicial Conduct, a retired judge eligible for recall to judicial service had to comply with all Code provisions except Canon 5C(2), D, E, G and Canon 6C, including Canon 5B(3)'s prohibition on solicitation of funds and on use or permitted use of the prestige of judicial office for solicitation. The retired judge could not serve on the Restoration Committee if he could not divorce himself from its fund-raising efforts; he could serve only if his name was not used for fund-raising and he did not participate in fund-raising.
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flags this opinion as a Former CJC Opinion providing advice under the former Ohio Code of Judicial Conduct, which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009. The status list also notes subsequent rule amendments to Canons 1 through 6 effective May 1, 1997. Treat this page as historical context, not current guidance. Do not rely on the Compliance Section C or Canon 5B references as current Ohio rules. Verify against current rules before acting.
Plain-English summary
A retired probate judge who continued to be regularly engaged in visiting-judge assignments asked whether he could serve as a member or co-chairperson of the Mahoning County Courthouse Restoration Committee, whose functions included raising one million dollars in private donations. The Board began by setting out which parts of the former Code applied to retired judges eligible for recall.
Compliance Section C of the former Code required a retired judge eligible for recall to comply with all Code provisions except Canons 5C(2), D, E, G, and Canon 6C. Canon 5B(3) therefore applied: it prohibited a judge from soliciting funds for any educational, religious, charitable, fraternal, or civic organization, and from using or permitting use of the prestige of office for that purpose. The Board observed, citing the Reporter's Notes, that Canon 5B was framed with the intent of insulating judges from fund-raising as far as practicable.
The Board acknowledged that a judge could serve as an officer, director, trustee, or non-legal advisor of a charitable or civic organization, subject to Canon 5B(1) (no service if the organization was likely to be a party in proceedings or regularly engaged in adversary proceedings), Canon 5B(2) (disqualification from any case in which the decision could affect the organization), and the rule that "a judge must not permit his name or office to be selectively emphasized by the organization."
The Board read the Canon 5B(3) carve-out narrowly: a judge could participate in solicitations of fellow members of an organization of which he was a member (such as fellow alumni or fellow church members), but not in broader public solicitation. The Board cited three pre-1973 ABA opinions for the proposition that a judge should refrain from any personal solicitations for contributions, regardless of the laudability of the purpose, and that the work of solicitation on public enterprises should be left to those outside the bench.
On the specific facts, the Board concluded that the judge's role was controlled, or possibly proscribed, by Canon 5B(3); if it was not possible to divorce himself from the fund-raising efforts, he should not serve; if his name was not used for any fund-raising and he did not participate in any fund-raising, his membership was not prohibited under the Code.
Common questions
Q: Did the former Code treat retired judges eligible for recall the same as active judges for Canon 5B purposes?
A: Yes, with limited carve-outs. Compliance Section C required compliance with all Code provisions except Canons 5C(2), D, E, G and Canon 6C. Canon 5B and its fund-raising restrictions applied.
Q: Could the judge serve in any capacity on the Restoration Committee?
A: Yes, but only if his name was not used for fund-raising and he did not participate in fund-raising. If he could not divorce himself from the fund-raising efforts, he could not serve.
Q: How did the Board read the Canon 5B(3) carve-out for member-to-member solicitation?
A: The Board read it narrowly: a judge could solicit fellow members of an organization of which he was a member (such as fellow alumni or fellow church members), but the carve-out did not extend to broader public fund-raising.
Citations and references
Rules of Judicial Conduct:
- Former Compliance Section C, Ohio Code of Judicial Conduct (1973)
- Former Canon 5B(1), (2), and (3), Ohio Code of Judicial Conduct (1973)
Other opinions cited:
- ABA Committee on Ethics and Professional Responsibility, Informal Op. 866 (1966): honorary membership on a National Lawyers' Committee fund-raising for a memorial building
- ABA Committee on Ethics and Professional Responsibility, Informal Op. 390 (1960): a judge should refrain from personal solicitations regardless of purpose
- ABA Committee on Ethics and Professional Responsibility, Informal Op. 603 (1962): solicitation on public enterprises should be left to those outside the bench
Other authorities:
- E.W. Thode, Reporter's Notes to Code of Judicial Conduct, 80, 101 (1973)
See also
- Ohio BPC Opinion 1987-003: Judge as Member of Foundation Board
- Ohio BPC Opinion 1987-013: Judge on Governmental Task Force
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-009.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 87-009
[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]
[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997]
SYLLABUS: A retired judge recalled to judicial service must comply with all provisions of the Code of Judicial Conduct except Canon 5C(2), D, E, G and Canon 6C. Under Canon 5B (3), a judge should not solicit funds for any charitable or civic organization. Furthermore, a judge may not use or permit the use of the prestige of his office for the solicitation of funds unless the solicitation is limited to members of an educational, religious, charitable, fraternal or civic organization of which the judge is a member.
TO: Judge Charles P. Henderson, retired probate judge
FROM: The Board of Commissioners on Grievances and Discipline of the Judiciary
DATE: May 5, 1987
We have before us your request for our opinion on whether it is ethically proper for you to serve as a member or co-chairperson on the Mahoning County Courthouse Restoration Committee (the "Restoration Committee").
In your request letter you state that although you are a retired probate judge, currently you are regularly engaged in visiting judge assignments and wish to continue to do so. Also in your letter you state that an important function of the Restoration Committee is the raising of one-million dollars in private donations.
At the outset, a brief discussion of how the Code of Judicial Conduct (the "Code") affects retired judges, such as yourself, who make themselves available as visiting judges and do, in fact, perform judicial functions. The applicable section of the Code entitled, Compliance with the Code of Judicial Conduct, "defines the term 'judge', establishes classifications of judges and designates the parts of the Code that are applicable to each classification." E.W. Thode, Reporter's Notes to Code of Judicial Conduct, 101 (1973).
Compliance Section C of the Code, which deals exclusively with retired judges states:
A retired judge who is eligible for recall to judicial service should comply with all provisions of this Code except Canon 5C(2), D, E, G and Canon 6C. Ohio Code of Judicial Conduct, Compliance Section C (1973).
Accordingly, a retired judge eligible for recall to judicial service 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. Code of Judicial Conduct, Canon 5B(3) (1973). The Special Committee on Standards of Judicial Conduct formulated Canon 5B with the intention of insulating judges from fund-raising as far as practicable. E.W.Thode, Reporter's Notes to Code of Judicial Conduct, 80 (1973).
However, a judge may participate and even serve as an officer, director, trustee or non-legal advisor of charitable or civic organizations with a few limitations. A judge cannot serve if it is likely that the organization will ordinarily come before him or will be regularly engaged in adversary proceedings in any court. Code of Judicial Conduct, Canon 5B(1) (1973). In addition, a judge should disqualify himself from any case in which the decision could affect any organization which he serves as either an officer or member of the Board. Code of Judicial Conduct, Canon 5B(2) (1973). Furthermore, "a judge must not permit his name or office to be selectively emphasized by the organization, but information about him can be listed along with similar information about other officers or directors." E.W. Thode, Reporter's Notes to Code of Judicial Conduct, 80 (1973).
Applying this to your situation, it appears that being a member or chairperson of the Restoration Committee of such a worthy cause might not violate the Code if you can completely separate yourself from the fund-raising efforts. For it is clear that the Code does not permit judges to solicit funds nor permit the use of his name in fund-raising efforts except a judge may participate as a member in solicitations limited to members of an educational, religious, fraternal, or civic organization of which he or she is a member. We interpret this exception as being very narrow. A judge may only participate in solicitations of his or her fellow members in one of the above-mentioned groups. For instance, a judge is permitted to participate in solicitation of fellow alumni from his or her alma mater, or fellow church members at his or her place of worship. Code of Judicial Conduct, Canon 5B(3) (1973).
Prior to adopting the 1973 Code, the ABA issued several opinions addressing solicitation and civic or charitable activities by judges. In one particular situation, the ABA Committee on Ethics and Professional Responsibility, stated that it would not be ethically proper for a judge to serve as an honorary member of a National Lawyers' Committee being formed to sponsor a campaign to raise money to build and endow a memorial building to John Marshall. ABA Committee on Ethics and Professional Responsibility, Informal Opinion No. 866 (1966). In another opinion the ABA said that "it is best for a judge simply to refrain from any personal solicitations for contributions, no matter how laudable the purpose." ABA Committee on Ethics and Professional Responsibility, Informal Opinion 390 (1960). The ABA later stated that "the work of solicitations on public enterprises should be left to others than those who occupy the bench." ABA Committee on Ethics and Professional Responsibility, Informal Opinion No. 603 (1962).
Therefore, it is our opinion, and you are so advised, that depending on the activities the Restoration Committee undertakes, your role as chairperson or member is controlled, or possibly proscribed by Canon 5B(3) of the Code. If it is not possible to divorce yourself from the fund-raising efforts of the Restoration Committee, then you should not serve as a member or chairperson. Conversely, if your name is not used for any fund-raising activities, and you do not participate in any fund-raising, your membership is not prohibited under the Code.
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