Under the former Ohio Code of Judicial Conduct, could a part-time domestic relations referee in a common pleas court practice law in the general, probate, and juvenile divisions of the same common pleas court?
Ohio BPC Opinion 87-014: Part-Time Domestic Relations Referees Practicing Law in Other Divisions of the Common Pleas Court
Short answer: The Board concluded that referees were considered judges under the former Ohio Code of Judicial Conduct because they performed judicial functions, and that under Compliance Section A(2) a part-time referee could not practice law in the specific division of the court on which the referee served or before the judge or judges to whom the referee owed his appointment, but could practice in other divisions of the same court of common pleas, provided the referee avoided the appearance of impropriety. The opinion was withdrawn by Opinion 98-3 on April 3, 1998.
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The Board's status list flags this opinion as Withdrawn by Opinion 98-3 on April 3, 1998. The opinion was issued under the former Ohio Code of Judicial Conduct (1973) and the former Ohio Code of Professional Responsibility, both of which were superseded (the CJC by the current Ohio Code of Judicial Conduct effective March 1, 2009, and the CPR by the Ohio Rules of Professional Conduct effective February 1, 2007). Treat this page as historical context, not current guidance. Do not rely on the Compliance Section A(2), Canon 2, Canon 2(B), or former DR 9-101 references as current Ohio rules. Verify against current rules before acting.
Plain-English summary
A judge asked whether part-time domestic relations referees could practice law in the general, probate, and juvenile divisions of the same common pleas court. The Board began by establishing that referees were considered judges for purposes of complying with the former Code, because they were officers of the judicial system performing judicial functions under the Compliance Section.
The Board then applied Compliance Section A(2), which provided that "[a] part-time judge: . . . should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves." The Board read this language to allow a part-time referee to practice in any court of law except the specific division in which the referee served. The Board further held that a part-time referee could not practice "in the court in which the judge or judges to whom the referee owes his appointment presides," citing OSBA Formal Ethics Op. 34 (1981).
The Board emphasized that referees were governed by both the Code of Judicial Conduct and the Code of Professional Responsibility, including the appearance-of-impropriety standard in Canon 2 and former DR 9-101, and the prohibition on implying the ability to improperly influence a tribunal in Canon 2(B) and former DR 9-101(C).
Common questions
Q: Did the Board treat referees as judges or as lawyers?
A: Both. The Board read the Compliance Section as treating referees as judges (specifically, part-time judges) for purposes of the Code of Judicial Conduct because they performed judicial functions, while still subjecting them to the Code of Professional Responsibility as practicing lawyers.
Q: In which courts could a part-time referee practice?
A: A part-time referee could practice in any court of law except (1) the specific division in which the referee served and (2) any court in which the judge or judges to whom the referee owed his appointment presided. The Board read other divisions of the same court of common pleas as permissible, subject to avoiding the appearance of impropriety.
Q: Why was the opinion withdrawn?
A: The Board's status list states the opinion was withdrawn by Opinion 98-3 on April 3, 1998. The 1987 opinion does not itself analyze the post-1998 framework.
Citations and references
Rules of Judicial and Professional Conduct:
- Former Compliance Section A(2), Ohio Code of Judicial Conduct (1982)
- Former Canon 2 and Canon 2(B), Ohio Code of Judicial Conduct (1973)
- Former DR 9-101 and DR 9-101(C), Ohio Code of Professional Responsibility (1985)
Other opinions cited:
- OSBA Formal Ethics Op. 34 (1981): part-time referees and appearance before appointing judges
See also
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-014.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 87-014
[Withdrawn- by Opinion 98-3 on Apr. 3, 1998]
SYLLABUS: Referees are considered judges for purposes of complying with the Code of Judicial Conduct. In this regard, part-time referees may not practice before the court division on which they serve or before the judge or judges to whom they owe their appointment. However, part-time referees serving the domestic relations division of common pleas court may practice law before other judges in the general, probate and juvenile divisions of that court so long as they avoid the appearance of impropriety.
TO: Judge Michael J. Voris
FROM: The Board of Commissioners on Grievances and Discipline of the Judiciary
DATE: June 22, 1987
We have before us your request for our informal advisory opinion on whether part-time domestic relations referees may practice law in the general, probate and juvenile divisions of the common pleas court.
At the outset, it should be stated that referees are officers of the judicial system performing judicial functions and therefore are considered judges for the purposes of complying with the Code of Judicial Conduct (the Code). Code of Judicial Conduct, Compliance Sec. (1982).
More specifically, part-time referees are considered part-time judges under Compliance Section (A) of the Code which states in part: "[a] part-time judge: . . . should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves . . ." Code of Judicial Conduct Compliance Sec. A (2) (1982). It is our opinion that the language of Compliance Section A (2) allows part-time referees to practice in any court of law except the specific division in which they serve as referee. However, a part-time referee may not practice "in the court in which the judge or judges to whom the referee owes his appointment presides." OSBA Formal Ethics Op. 34 (1981).
As previously stated, referees are considered judges and must comply with the Code of Judicial Conduct as well as the Code of Professional Responsibility. Therefore, a referee must avoid even the appearance of impropriety. Code of Judicial Conduct Canon 2 (1973), Model Code of Professional Responsibility DR 9-101 (1985). Furthermore, a lawyer may not imply that he or she is able to improperly influence any tribunal. Mode Code of Professional Responsibility DR 9-101(c) (1985), Code of Judicial Conduct Canon 2(B) (1973).
In conclusion, it is our opinion, and you are so advised that part-time domestic relations referees in a court of common pleas may practice law in other divisions of the court of common pleas provided they do not practice before the judge to whom they owe their appointment and avoid the appearance of any impropriety.
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
on Grievances & Discipline
of the Judiciary