OHBPC 1987-06-22

Under the former Ohio Code of Judicial Conduct, was an incumbent judge automatically disqualified from hearing cases in which an election opponent, or members of the opponent's law firm, represented one of the parties?

Short answer: The Board concluded that the incumbent judge was not automatically disqualified; under former Canon 3C(1) the judge should disqualify himself only when his impartiality might reasonably be questioned, the impartiality concern was less acute when a member of the opponent's firm rather than the opponent himself represented a party, and the decision whether to recuse rested with the judge rather than with opposing counsel. The opinion was withdrawn by Advisory Opinion 2024-07 on December 13, 2024.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

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Ohio BPC Opinion 87-023: Incumbent Judge's Recusal When Election Opponent or Opponent's Firm Represents a Party

Short answer: The Board concluded that, under former Canon 3C(1) of the Ohio Code of Judicial Conduct, an incumbent judge was not automatically disqualified from hearing cases in which an election opponent or members of the opponent's firm represented a party; recusal was required only when the judge's impartiality might reasonably be questioned. The impartiality concern was less acute when a firm member rather than the opponent himself represented a party, and the recusal decision was for the judge, not opposing counsel. The opinion was withdrawn by Advisory Opinion 2024-07 on December 13, 2024.

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.

View original opinion

Currency note

The Board's status list flags this opinion as Withdrawn by Board action on December 13, 2024 by Advisory Opinion 2024-07 (the document itself references "Op. 2025-07"). 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; subsequent rule amendments to Canons 1 through 6 took effect May 1, 1997. Treat this page as historical context, not current guidance. Do not rely on the former Canon 3C(1) reference as a current Ohio rule. Verify against current rules (including Ohio Code of Judicial Conduct Rule 2.11 on disqualification) before acting.

Plain-English summary

A municipal court judge sought guidance after his opponent in an upcoming judicial election sent a letter requesting that all cases involving the opponent or members of his firm be assigned to an acting judge until the fall election. The judge was concerned that automatic disqualification across the opponent's firm would distort judicial administration and impose undue expense on the city, given the small number of attorneys in the area.

The Board read former Canon 3C(1) as the governing provision: a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. The Board cited E.W. Thode, Reporter's Notes to Code of Judicial Conduct 60-61 (1973), for the proposition that any conduct that would lead a reasonable person knowing all the circumstances to conclude that the judge's impartiality might reasonably be questioned, and any appearance of impropriety raising such reasonable questions, fell within Canon 3C(1).

The Board observed that the impartiality concern was less acute when a member of the opponent's firm, rather than the opponent personally, represented a party. The Board further concluded that the recusal decision rested with the judge, not with opposing counsel: "we believe that decision should be made by the person on the bench and not the person before the bench." The Board cited ABA Informal Op. 1306 (1974) for the proposition that nothing in the Code of Professional Responsibility prevented lawyers from appearing before judges where the judge had not disqualified himself.

The Board concluded that, as long as the judge's impartiality could not reasonably be questioned, it was proper for the judge to hear cases in which the election opponent or members of the opponent's firm represented parties.

Common questions

Q: Was automatic recusal required when the opponent's firm member appeared?

A: No. The Board read Canon 3C(1) as requiring recusal only when impartiality might reasonably be questioned, and as treating the firm-member case as less concerning than the opponent-himself case.

Q: Who decided whether the judge should recuse?

A: The Board located the decision with the judge, not with opposing counsel. The Board concluded that "the person on the bench" rather than "the person before the bench" made the recusal call.

Q: Why was the opinion withdrawn?

A: The Board's status list states the opinion was withdrawn by Board action on December 13, 2024 by Advisory Opinion 2024-07 (also rendered as "Op. 2025-07" on the document). The 1987 opinion does not itself analyze the current framework.

Citations and references

Rules of Judicial Conduct:

Former Canon 3C(1), Ohio Code of Judicial Conduct (1973, 1982 amendments)

Other opinions cited:

ABA Committee on Ethics and Professional Responsibility, Informal Op. 1306 (1974): lawyers appearing before judges where the judge has not disqualified himself

Other authorities:

E.W. Thode, Reporter's Notes to Code of Judicial Conduct, 60-61 (1973)

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-023.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 87-023
Withdrawn by Adv. Op. 2025-07
[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: During a campaign for judicial office it is unnecessary for an incumbent judge to recuse himself from proceedings where his opponent represents one of the parties, unless the judge's impartiality might reasonably be questioned. The judge's impartiality is less likely to be questioned where a member of his opponent's law firm represents one of the parties.

TO: Judge Phil W. Campbell, Van Wert Municipal Court

FROM: The Board of Commissioners on Grievances & Discipline of the Judiciary

DATE: June 22, 1987

We have before us your request for our opinion on whether you, as incumbent judge, are disqualified to hear cases in which your opponent in the upcoming election or the members of his firm represent one of the parties. This issue was brought to your attention when your opponent sent you a letter requesting that all cases involving himself and members of his firm be assigned to an acting judge until the fall election. You are concerned that, given the small number of attorneys in your area, your automatic disqualification for all cases involving members of your opponent's firm would distort judicial administration in your county and cause undue expense to your city.

Whether or not you are disqualified from any proceeding in your court is determined under the Code of Judicial Conduct (the "Code"). Under the Code, a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. Code of Judicial Conduct Canon 3C (1)(1982). The framers of the Code adopted this general policy for disqualification with the intention that, "[a]ny conduct that would lead a reasonable person knowing all the circumstances to the conclusion that the judge's impartiality might reasonably be questioned is a basis for the judge's disqualification." E. W. Thode, Reporter's Notes to Code of Judicial Conduct 60 (1973). In addition, any appearance of impropriety which raises reasonable questions concerning the judge's impartiality would fall within the scope of the general standard set forth in Canon 3C(1). Id. at 61.

In regard to your opponent requesting your recusal, we believe that decision should be made by the person on the bench and not the person before the bench. In addition, we agree with the ABA Committee's finding that nothing in the Code of Professional Responsibility prevents lawyers from appearing before judges, where the judge has not disqualified himself. ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1306 (1974). Whether or not the attorney represents his client for any reason is a matter decided by the individual attorney and his or her client.

Based on the foregoing, it is our opinion that, as long as your impartiality as judge cannot reasonably be questioned, it is proper for you to hear cases in which your opponent in the upcoming judicial election or members of his firm are representing parties in the cases.

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