Under the former Ohio Code of Judicial Conduct, could the spouse of a common pleas judge serve as a prosecuting attorney in the same county, and was the judge required to disqualify from all cases prosecuted by that office?
Ohio BPC Opinion 87-024: Judge Whose Spouse Is a Prosecuting Attorney: Recusal and Imputation
Short answer: The Board concluded that, under former Canon 3C(1)(d)(ii), the prosecuting-attorney spouse could not appear as counsel in the judge's courtroom, but could appear before other judges in the county. Disqualification of one prosecutor was not imputed to fellow prosecutors, so the judge could preside in cases brought by other members of the prosecuting attorney's office, with disclosure to all parties and lawyers recommended. The waiver provision in Canon 3D allowed the parties and lawyers to waive Canon 3C(1)(d) disqualification by written agreement that the relationship was immaterial.
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flags this opinion as a Former CJC Opinion providing advice under the former Ohio Code of Judicial Conduct, which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009.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 Treat this page as historical context, not current guidance. Verify against current rules before acting.
Plain-English summary
A common pleas judge sought guidance on two questions where his spouse was a member of the prosecuting attorney's staff in the same county: whether the spouse could appear before other judges in the various divisions of the court, and whether the judge had to disqualify himself in any case involving any member of the prosecuting attorney's staff.
On the first question, the Board agreed that the spouse could not appear as counsel in the judge's own courtroom under Canon 3C(1)(d)(ii), but concluded she could appear before other judges in the county. The Board noted that under Canon 3D, the Canon 3C(1)(d) disqualification could be waived by written agreement of all parties and lawyers that the judge's relationship was immaterial. The Board emphasized that both lawyers and judges had to avoid the appearance of impropriety under Canon 2 and former DR 9-101, and that a lawyer could not engage in conduct suggesting an ability to improperly influence a tribunal under DR 9-101(C), nor communicate with a judge about the merits under DR 7-110(B).
On the second question, the Board concluded that the spouse's disqualification was not imputed to fellow prosecuting attorneys; the judge could preside in cases brought by other members of the prosecuting attorney's office. The Board recommended disclosure to all parties and lawyers in cases brought by that office and pointed back to the Canon 3C(1) reasonable-impartiality-question standard as the test for case-specific recusal.
Common questions
Q: Could the prosecutor spouse appear before any judge in the same county?
A: She could not appear before the judge spouse under Canon 3C(1)(d)(ii) (subject to waiver under Canon 3D), but could appear before other judges in the county.
Q: Was the disqualification of the prosecutor spouse imputed to other prosecutors?
A: No. The Board concluded the disqualification of one prosecuting attorney was not per se imputed to fellow prosecuting attorneys in the same office.
Q: What did the Board recommend on disclosure?
A: The Board recommended that the judge disclose to all parties and lawyers in cases brought by the prosecuting attorney's office that the judge's spouse was a staff member of that office, and apply the Canon 3C(1) reasonable-impartiality-question standard case by case.
Citations and references
Rules of Judicial and Professional Conduct:
- Former Canon 3C(1)(d)(ii), Canon 3C(1), Canon 3D, Canon 2, Ohio Code of Judicial Conduct (1973, 1982)
- Former DR 7-110(B), DR 9-101, DR 9-101(C), Model Code of Professional Responsibility (1970, 1985)
Other authorities:
- E.W. Thode, Reporter's Notes to Code of Judicial Conduct, 60 (1973)
See also
- Ohio BPC Opinion 1987-022: Father/Son Judge/Lawyer Conflict
- 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-87-024.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 87-024
[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 judge should recuse himself from proceedings where his impartiality might reasonably be questioned. This includes instances where the judge's spouse is a party to or lawyer in the proceeding. A prosecuting attorney may not practice law in his or her spouse's courtroom. However, disqualification of one prosecuting attorney does not per se disqualify all other lawyers serving that office unless disqualification is reasonably necessary to insure the fairness of a trial, the proper administration of justice or public confidence in the legal system. A lawyer whose spouse is a common pleas judge may practice before any other judge in the county where his or her spouse presides, but may not engage in conduct which suggests an ability to improperly influence a tribunal.
TO: Judge William Walker
FROM: 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 regarding your situation as common pleas judge in the county where your spouse is a member of the prosecuting attorney's staff. Specifically, you seek our opinion with regard to the following:
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your spouse's appearance before other judges of the general jurisdiction, the division of domestic relations, probate and juvenile court.
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the necessity of you recusing yourself in any case involving any member of the prosecuting attorney's staff.
We agree with your assumption that your spouse may not appear as counsel in your courtroom. Code of Judicial Conduct, Canon 3C(1)(d)(ii) (1982). However, under Canon 3D of the Code of Judicial Conduct (the "Judicial Code"), disqualification under Canon 3C(1)(d) may be waived by all the parties and lawyers by agreeing in writing that the judge's relationship is immaterial. Code of Judicial Conduct, Canon 3D (1982).
Regarding your first question, it is our opinion that your spouse may ethically appear before other judges in your county. However, both lawyers and judges must scrupulously avoid any appearance of impropriety. Code of Judicial Conduct Canon 2 (1973), Model Code of Professional Responsibility DR 9-101 (1985). Also, under the Model Code, a lawyer shall not engage in conduct which suggests the ability to improperly influence any tribunal. Model Code of Professional Responsibility DR 9-101(C) (1985). Furthermore, a lawyer shall not communicate, or cause another to communicate with a judge relating to the merits of a case. Model Code of Professional Responsibility DR 7-110 (B) (1970).
Regarding your second question, it is our opinion that you may preside as judge in cases involving other members of the prosecuting attorney's staff. The fact that a judge's spouse is disqualified from prosecuting cases in his or her spouse's courtroom is not imputed to fellow prosecuting attorneys. However, we recommend that you disclose to all the parties and lawyers in cases brought by the prosecutor's office that your spouse is a staff member of that office.
Under such circumstances, disqualification might be necessary to insure the proper administration of justice and/or public confidence in the legal system. If your impartiality might reasonably be questioned in a proceeding then you should disqualify yourself. Code of Judicial Conduct Canon 3C(1) (1982). "Any conduct that would lead a reasonable man 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).
Based on the foregoing, it is our opinion, and you are so advised that, where a judge and his or her spouse, as a prosecuting attorney, practice in the same county, they are precluded from participating in the same cases. The judge may however, hear cases brought by other prosecuting attorneys in the county. Conversely, the prosecuting attorney may appear before other judges in the county. However, both spouses should keep in mind the potential for disqualification based on the aforementioned provisions in the Code of Professional Responsibility and Code of Judicial Conduct.
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