Under the former Ohio Code of Judicial Conduct, could a part-time juvenile division referee practice in the probate division of the same common pleas court before the judge who appointed him, and could the referee's firm members appear in either division?
Ohio BPC Opinion 87-036: Part-Time Referee's Firm Practicing in Other Divisions of the Common Pleas Court
Short answer: The Board concluded that a part-time juvenile division referee could practice in other divisions of the common pleas court, but could not practice before the judge who appointed him. Members of the part-time referee's firm could not appear before their colleague as referee, but could appear in the probate division before the appointing judge (subject to that judge's case-by-case Canon 3C(1) recusal analysis) and could appear before another judge or referee in the juvenile division. The opinion was withdrawn by Opinion 98-3 on April 3, 1998.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The Board's status list flags this opinion as Withdrawn by Opinion 98-3 on April 3, 1998.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the former Ohio Code of Judicial Conduct and the former Ohio Code of Professional Responsibility, both of which were superseded by current rules. Treat this page as historical context, not current guidance. Verify against current rules before acting.
Plain-English summary
A common pleas judge responsible for the probate and juvenile divisions asked two questions about a part-time referee he intended to appoint to the juvenile division. First, could the referee and the referee's firm continue to practice in the probate division. Second, could the firm members practice in the juvenile division before another referee or judge.
On the first question, the Board read Canon 6(F) and Compliance Section A(2) of the former Code as treating a part-time referee as a part-time judge and as barring practice in the court on which he served. Thus the juvenile-division referee could not practice in the juvenile division. The Board concluded that the referee also could not practice before the appointing judge in any court, citing OSBA Ethics Op. 34 (1981) and Canon 2 (avoidance of appearance of impropriety) and former DR 9-101. Members of the referee's firm could continue to practice in the probate division before the appointing judge as long as the judge did not disqualify himself, citing ABA Informal Op. 1306 (1974).
On the second question, the Board concluded that firm members could appear in the juvenile division before another referee or judge, again citing ABA Informal Op. 1306 (1974). However, the Board observed that if the substitute judge's or referee's impartiality might reasonably be questioned because a lawyer was affiliated with the appointed referee, the substitute should disqualify under Canon 3C(1); both lawyers and judges had to avoid the appearance of impropriety.
The Board also held that a part-time referee could not hear cases in which any member of his law firm represented a party, because the referee's impartiality might reasonably be questioned (Canon 3C(1)).
Common questions
Q: Could the part-time juvenile-division referee practice in the probate division before the appointing judge?
A: No. The Board held the referee could not practice in any court before the appointing judge, citing OSBA Ethics Op. 34 (1981) and Canon 2's appearance-of-impropriety requirement.
Q: Could firm members appear in the probate division before the appointing judge?
A: Yes, so long as the judge did not disqualify himself. The Board cited ABA Informal Op. 1306 (1974). The judge retained case-by-case Canon 3C(1) discretion.
Q: Could firm members appear in the juvenile division before another referee or judge?
A: Yes. However, if the substitute referee's or judge's impartiality might reasonably be questioned because of the firm affiliation, the substitute should disqualify under Canon 3C(1).
Citations and references
Rules of Judicial and Professional Conduct:
- Former Canon 2, Canon 3C(1), Canon 6(F), and Compliance Section A(2), Ohio Code of Judicial Conduct
- Former DR 9-101, Ohio Code of Professional Responsibility
Other opinions cited:
- Ohio State Bar Association Ethics Op. 34 (1981): part-time referee may not practice in appointing court
- ABA Committee on Ethics and Professional Responsibility, Informal Op. 1306 (1974): lawyers' appearance is for the lawyer where judge has not disqualified
See also
- Ohio BPC Opinion 1987-014: Part-Time Referees Practicing Law
- Ohio BPC Opinion 1987-029: County Court Judges Practicing Law
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-036.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 87-036
Issued: September 25, 1987
[Withdrawn- by Opinion 98-3 on Apr. 3, 1998]
SYLLABUS: A part-time referee should not practice law in the court on which he or she serves. A part-time referee for a division of the court of common pleas may practice law in the other divisions of the court provided he does not practice before the judge or judges to whom the referee owes his appointment. Members of the part-time referee's law firm may not appear before their colleague as referee, but may appear before another judge or referee in the same division.
OPINION: We have before us your request for our opinion concerning part-time referees who practice law. You state in your request that you are a Judge of the Court of Common Pleas, responsible for the Probate and Juvenile Divisions. Your first question is whether the part-time referee you intend to appoint to the Juvenile Division of the Court of Common Pleas, and members of his firm, will be able to continue to practice in the Probate Division under the Code of Judicial Conduct and/or the Code of Professional Responsibility.
It is our opinion that, under the Code of Judicial Conduct, a part-time referee in the Juvenile Division may practice in other Divisions of the Court of Common Pleas. However, allowing the part-time referee to practice in any court before the judge who appointed him would appear improper and therefore is proscribed under the Codes of Judicial Conduct and Professional Responsibility. Code of Judicial Conduct Canon 2, Code of Professional Responsibility DR 9-101. In addition, the Ohio State Bar Association has stated that a part-time referee may not practice in the court in which the judge or judges to whom he owes his appointment presides. OSBA Ethics Op. 34 (1981). Therefore, a part-time referee of the Juvenile Division which you have appointed may not practice in the Probate Division before you. Members of the part-time referee's law firm, however, may continue to practice in the Probate Division before you, so long as you have not disqualified yourself for any reason. ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1306 (1974).
We agree with the two assumptions you have made in your request letter. A part-time referee is considered a part-time judge for purposes of complying with the Code. Code of Judicial Conduct Compliance Sec. A. Under Canon 6(F) and Compliance Section A (2) of the Code, a part-time judge may not practice law in the court on which he serves. Thus, a part-time referee in the juvenile division may not practice law in that division. In addition, a part-time referee may not hear cases in which any member of his or her law firm represents one of the parties, in that the referee's impartiality might reasonably be questioned. Code of Judicial Conduct Canon 3C(1).
Your second question addresses the situation where members of a referee's law firm wish to practice in the Juvenile Division before another referee or judge. It is our opinion that members of the referee's law firm may practice in the Juvenile Division of the Court of Common Pleas before another referee or judge. In this regard, the ABA has held 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 an attorney represents his or her client for any reason should be resolved by the individual attorney and the client.
Nonetheless, members of the part-time Juvenile Division referee's law firm who practice before another referee or judge in that Division may be creating a problem for the sitting judge or referee. For instance, under the Code a judge or referee should disqualify himself from any proceeding where his impartiality might reasonably be questioned. Code of Judicial Conduct Canon 3C(1). Therefore, if a substitute referee or judge's impartiality might reasonably be questioned in a case because one of the lawyers is affiliated with the juvenile division's appointed referee, then that referee or judge should disqualify himself. In addition, both judges and lawyers must avoid even the appearance of impropriety. Code of Judicial Conduct Canon 2, Code of Professional Responsibility DR 9-101.
In conclusion, it is our opinion, and you are so advised, that a part-time, Common Pleas Court Juvenile Division referee and members of his firm may practice in the Probate Division of the Common Pleas Court. However, a part-time referee may not practice before the judge who appointed him referee. Members of the part-time referee's law firm may not appear before their colleague as referee but may appear before another judge or referee in the juvenile division.
This is an informal, non-binding advisory opinion, based upon the facts as presented and limited to questions arising under the Code of Judicial Conduct.
James W. Mason, Esq.
Secretary
Board of Commissioners
on Grievances & Discipline