Under the former Ohio Code of Judicial Conduct, could a son who was a law partner of a part-time municipal court judge serve as city law director and prosecute all city matters in his father's court?
Ohio BPC Opinion 87-022: Conflict When Part-Time Municipal Judge's Law Partner Son Is City Law Director
Short answer: The Board concluded that a conflict of interest existed both because of the father-son relationship and because the two men were law partners. Under former Compliance Section A(2) of the Code of Judicial Conduct, a part-time judge's law partners and members of his firm could not practice in the court on which he served. Under former Canon 3C(1)(d)(ii), the judge had to disqualify in any proceeding where a relative within the third degree of relation was a lawyer. The Board further concluded that terminating the partnership would address only half the problem, and that hiring an assistant city law director would not cure the conflict because the assistant would be under the direction of the judge's son. The opinion was modified by Opinion 2005-4 on April 15, 2005.
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this opinion as a CPR Opinion providing advice under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. The status list also notes the opinion was modified by Op. 2005-4 on April 15, 2005, and notes subsequent rule amendments to Canons 1 through 6 of the Ohio Code of Judicial Conduct effective May 1, 1997. Treat this page as historical context, not current guidance. Do not rely on the Compliance Section A(2), Canon 3C(1)(d)(ii), or former DR 9-101(C) references as current Ohio rules. Verify against current rules (including Ohio Code of Judicial Conduct Rule 2.11 on disqualification) before acting.
Plain-English summary
The Board addressed three questions about a father (a part-time municipal court judge) and son (his law partner) where the son was a sole candidate for city law director, a position whose duties required prosecuting all city matters in the municipal court where his father sat. The questions were: could the son run for the office; if a conflict existed, what was its source; and could the conflict be resolved by terminating the partnership, hiring an assistant, or having the judge recuse case-by-case.
On the first question, the Board concluded that the former Code did not preclude the son from running for city law director. However, under former Compliance Section A(2) of the Code of Judicial Conduct, a part-time judge, his law partners, and members of his firm could not practice in the court on which the judge served or in any court subject to its appellate jurisdiction. Therefore the law-partner son could not practice before his father as judge. Additionally, under former Canon 3C(1)(d)(ii), the judge had to disqualify himself in any proceeding where a relative within the third degree of relation was a lawyer. The Board read the father-son relationship as squarely within Canon 3C(1)(d)(ii).
On the second question, the Board found that the conflict had two independent sources: the father-son relationship and the law partnership. Dissolving the partnership would eliminate only the partnership leg; the family relationship would still require recusal under Canon 3C(1)(d)(ii). The Board cited ABA Informal Op. C-706 (1963) for the proposition that when conflicting obligations interfere with judicial duties, the judge must choose between the two positions and forego one.
On the third question, the Board concluded that hiring an assistant city law director would not solve the problem because the assistant would report to, work directly for, and be under the direction and control of the judge's son, raising appearance-of-impropriety concerns under former DR 9-101(C). The Board noted, however, that having the judge step down from each case where a conflict existed would resolve the problem.
Common questions
Q: What were the two independent sources of the conflict?
A: The father-son relationship and the law partnership. The Board read each as independently triggering: the partnership triggered Compliance Section A(2)'s bar on law partners practicing in the part-time judge's court, and the family relationship triggered Canon 3C(1)(d)(ii)'s mandatory disqualification when a relative within the third degree was a lawyer to the proceeding.
Q: Would dissolving the partnership cure the conflict?
A: No. The Board read dissolution as addressing only the partnership leg. The family relationship would still require disqualification under Canon 3C(1)(d)(ii) in any proceeding where the son was a lawyer.
Q: Could hiring an assistant city law director cure the conflict?
A: No. The Board read the assistant as tainted by the conflict because the assistant would report to and be under the direction of the judge's son, raising appearance-of-impropriety concerns under former DR 9-101(C). The Board also noted the court's inherent power to recuse an assistant law director where reasonably necessary to insure proper administration of justice.
Citations and references
Rules of Judicial and Professional Conduct:
- Former Compliance Section A(2), Ohio Code of Judicial Conduct (1982)
- Former Canon 3C(1)(d)(ii), Ohio Code of Judicial Conduct (1982)
- Former DR 9-101(C), Model Code of Professional Responsibility (1985)
Other opinions cited:
- Committee on Professional Ethics, State Bar of Wisconsin Op. E-85-1 (1985): part-time judge's law partner and the judge's court
- ABA Committee on Ethics and Professional Responsibility, Informal Op. C-706 (1963): choosing between conflicting obligations
See also
- Ohio BPC Opinion 1987-014: Part-Time Referees Practicing Law in Other Divisions
- Ohio BPC Opinion 1987-023: Recusal When Election Opponent Represents a Party
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-022.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 87-022
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
[Modified by Op. 2005-4 on April 15, 2005]
[Not current-subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997.]
SYLLABUS: Law partners or associates of a part-time judge are precluded from practicing law in the court on which the part-time judge serves. Furthermore, a judge should disqualify himself from any proceeding where a relative, within the third degree of relation, is a lawyer to the proceeding.
TO: Lorene G. Johnston, Esq.
FROM: The Board of Commissioners on Grievances and Discipline of the Judiciary
DATE: June 22, 1987
We have before us your request for our opinion on whether father and son law partners can serve as Municipal Court Judge and City Law Director respectively within the same county. Specifically, you inquire whether:
1) the sole candidate for city law director can run for that office knowing that he must prosecute all matters for the city in the municipal court where his law partner/father is judge?
2) if a conflict does exist, is it only because the judge is his father or only because the judge is his law partner, or both?
3) can any conflict simply be resolved by terminating the partnership, hiring an assistant, or simply having the judge step down on each and every case where there is an alleged conflict?
In regard to your first question, there is nothing in the Code of Professional Responsibility which precludes a law partner/son of a part-time municipal court judge from running for city law director. However, a part-time judge, his law partners and members of his firm may not practice 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 Section A(2) (1982). See e.g., Committee on Professional Ethics, State Bar of Wisconsin Op. E-85-1 (1985). Therefore, the law partner/son of a part-time municipal court judge may not practice before his father as judge. Id. In addition, under Canon 3C of the Code of Judicial Conduct, a judge should disqualify himself from any proceeding where a relative, within the third degree of relation, is a lawyer to the proceeding. Code of Judicial Conduct, Canon 3C(1)(d)(ii) (1982). Clearly, a parental relationship would preclude a judge from sitting on a case where his or her son or daughter were a lawyer to the proceeding.
In regard to your second question, we believe a conflict of interest exists both because of the father/son relationship and the fact that the two men are law partners. Thus, dissolving the partnership would only eliminate half the problem. Again, the judge should still disqualify himself from any proceeding in which his son is a lawyer. Code Judicial Conduct, Canon 3C(1)(d)(ii)(1982). Furthermore, the ABA, in an opinion on this subject, has stated: "[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 Comm. on Ethics and Professional Responsibility Informal Op. C-706 (1963).
Although your third question has already been partially answered above, it bears repeating. The conflict would not be totally resolved by terminating the law partnership, for the father/son relationship would still exist. In addition, if the city law director hired an assistant, he or she would be tainted by the conflict given the fact that as an assistant, he or she would report to, work directly for and be under the direction and control of the judge's son. Under DR 9-101 (C) of the Code, lawyers in Ohio must avoid even the appearance of impropriety. Model Code of Professional Responsibility DR 9-101 (C) (1985). Therefore, hiring an assistant would not solve the problem because an assistant city law director appearing before the law director's father as judge might appear improper. Having the judge step down from each and every case where there is an alleged conflict would resolve the problem.
In conclusion, it is our opinion, and you are so advised, that a conflict of interest exists where a father/part-time municipal judge hears cases prosecuted by his law partner/son as city law director. The conflict arises out of their relationship as father and son and as law partners. In addition, the court may also recuse an assistant city law director when it appears reasonably necessary to insure the proper administration of justice and/or public confidence in the judicial system.
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 and Discipline
of the Judiciary