Under the former Ohio Code of Judicial Conduct, what disqualifications applied when a common pleas judge sought to appoint as full-time domestic relations referee a former Bureau of Support prosecutor whose lawyer husband appeared locally?
Ohio BPC Opinion 87-038: Common Pleas Judge Appointing Domestic Relations Referee Whose Spouse Is Local Lawyer and Who Previously Prosecuted Support Cases
Short answer: The Board addressed seven recusal questions arising from the appointment of a full-time domestic relations referee whose husband was a local lawyer and who had previously served as an assistant prosecuting attorney handling Bureau of Support cases. The Board concluded: the common pleas judge could hear cases in which the spouse or his firm appeared, subject to Canon 3C(1) case-by-case recusal where impartiality might reasonably be questioned; the referee could not hear cases in which her spouse acted as counsel under Canon 3C(1)(d)(ii), but firm-member appearance was not per se disqualifying; she had to disqualify from matters she had handled as prosecutor under Canon 3C(1)(b) and from matters involving former agency colleagues where impartiality might reasonably be questioned; the spouse and his firm could appear before the common pleas judge subject to the judge's recusal analysis; and firm members other than the spouse could appear before the referee subject to Canon 3C(1).
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flags this opinion as a Former CJC Opinion providing advice under the former Ohio Code of Judicial Conduct, which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009.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 Treat this page as historical context, not current guidance.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 (including Ohio Code of Judicial Conduct Rule 2.11) before acting.
Plain-English summary
A common pleas judge sought to appoint as full-time domestic relations referee a person who was then an assistant prosecuting attorney for the Bureau of Support, representing the state in actions to enforce and create support orders. The referee-designate's husband was a local lawyer. The judge asked seven questions about the resulting disqualification matrix.
On the first question (judge hearing cases involving the referee's spouse or his firm), the Board read Canon 3C(1) as the governing standard: the judge should disqualify if impartiality might reasonably be questioned. The Board cited the Reporter's Notes' reasonable-person test (Thode 60 (1973)) and quoted Canon 2 and its Commentary on the appearance-of-impropriety standard. The Board did not impose categorical disqualification; the analysis turned on the case-specific impartiality question.
On the second question (referee hearing cases involving firm members), the Board read Compliance Section as treating referees as judges. Under Canon 3C(1)(d)(ii), the referee could not hear cases in which her spouse acted as a lawyer. The Commentary, however, stated that the fact that a lawyer in a proceeding was affiliated with a firm with which a lawyer-relative of the judge was affiliated did not by itself disqualify the judge. The case-by-case Canon 3C(1) reasonable-impartiality-question test still controlled.
On the third question (referee hearing cases based on new facts involving parties she had prosecuted), the Board read Canon 3C(1)(b) as requiring disqualification where the judge "served as a lawyer in the matter in controversy," and concluded that to prevent the appearance of impropriety the referee should not hear such cases. The general Canon 3C(1) reasonable-impartiality-question test reinforced the conclusion.
On the fourth question (cases brought by the prosecutor's office Bureau of Support), the Board read the second part of Canon 3C(1)(b), addressing matters handled by a lawyer with whom the judge had practiced. The Commentary clarified that governmental-agency lawyers were not necessarily treated as one another's associates. The Board concluded that the referee should disqualify if her association with the agency lawyer before the court led to a Canon 3C(1) reasonable-impartiality-question conclusion (Thode 63 (1973)).
On the fifth and sixth questions (spouse and his firm appearing before the common pleas judge, and firm members other than the spouse appearing before the referee), 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 who had not disqualified themselves.
On the seventh question, the Board declined to opine, treating it as overbroad and outside the scope of advisory opinions limited to specific facts.
Common questions
Q: Could the referee hear support enforcement cases against parents she had previously prosecuted?
A: No, on the matters she had handled (Canon 3C(1)(b)). The Board read the rule to prevent the appearance of impropriety even where new facts were involved, and pointed to Canon 3C(1)'s general reasonable-impartiality-question test as reinforcing the conclusion.
Q: Could the referee hear cases brought by her former agency colleagues at the Bureau of Support?
A: It depended. The Board read the Commentary to Canon 3C(1)(b) as treating government-agency lawyers as not necessarily associated for disqualification purposes, but the referee had to disqualify if her association with the agency lawyer before the court led to a reasonable impartiality question under Canon 3C(1).
Q: Could the referee's lawyer-husband appear before the common pleas judge?
A: Yes, so long as the judge did not disqualify himself in the case. The Board cited ABA Informal Op. 1306 (1974). The judge retained Canon 3C(1) discretion to recuse case by case.
Citations and references
Rules of Judicial Conduct:
- Former Canon 2, Canon 2B, Canon 3C(1), Canon 3C(1)(b), Canon 3C(1)(d)(ii), and Compliance Section, Ohio Code of Judicial Conduct (1973, 1982)
Other opinions cited:
- ABA Committee on Ethics and Professional Responsibility, Informal Op. 1306 (1974): lawyers appearing before judges who have not disqualified themselves
Other authorities:
- E.W. Thode, Reporter's Notes to Code of Judicial Conduct, 60, 63 (1973)
See also
- Ohio BPC Opinion 1987-022: Father/Son Judge/Lawyer Conflict
- Ohio BPC Opinion 1987-024: Judge's Spouse as Prosecutor
- Ohio BPC Opinion 1987-036: Part-Time Referee's Firm Practice in Other Divisions
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-038.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 87-038
[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: Referees are considered judges for purposes of complying with the Code of Judicial Conduct. Both judges and referees should disqualify themselves from any proceeding where their impartiality might reasonably be questioned. Furthermore, a judge or referee should avoid impropriety and the appearance of impropriety in all of his or her activities.
TO: Judge L. Alan Goldsberry
Athens County Court of Common Pleas
FROM: Board of Commissioners on Grievances and Discipline of the Judiciary
DATE: June 22, 1987
We have before us your request for our advisory opinion relating to your desire to appoint a full-time referee to serve as domestic relations referee in your courtroom. The person you refer to as "A," is currently an assistant prosecuting attorney for the Bureau of Support, where she represents the state in actions to enforce and create support orders. In your request letter you properly assumed that if "A" is appointed referee, then her husband "B" would be precluded from practicing before her as domestic relations referee. With this as background, you request an advisory opinion on the following questions:
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Does the Code of Judicial Conduct permit the common pleas judge to hear either domestic or non-domestic cases in which B or his firm appear as counsel?
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Under the Code of Judicial Conduct, can A hear cases in which members of B's firm appear as counsel?
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Under the Code of Judicial Conduct, A obviously cannot hear cases she filed. However, can A hear cases based upon new facts or circumstances involving a parent for whom she appeared, as a prosecuting attorney, representing the state?
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Under the Code of Judicial Conduct, can A hear any case brought by the prosecutor's office through the Bureau of Support?
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Under the Code of Professional Responsibility, can B and his firm appear before the common pleas judge?
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Under the Code of Professional Responsibility, can members of B's firm, other than B, appear before A?
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Do any other ethical questions arise from the facts as presented?
Your first question addresses the situation where you, as common pleas judge, wish to hear cases in which your prospective referee's husband or members of his law firm appear as counsel. Although there is nothing in the Code of Judicial Conduct (the Code) specifically prohibiting a judge from sitting in such cases, there are several general provisions in the Code which would apply. For instance, under Canon 3C(1) of the Code, a judge should disqualify himself from proceedings where his impartiality might reasonably be questioned. Code of Judicial Conduct Canon 3C(1) (1982). The Reporter's Notes to the Code regarding Canon 3C(l) state, "[a]ny 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). Therefore, if your impartiality might reasonably be questioned in a case because one of the lawyers is affiliated with, or related to, the domestic relations' referee, then you should disqualify yourself from that case.
Canon 2 of the Code also applies to the situation set forth in your first question and should be carefully considered when determining whether you hear cases involving "B" or members of his firm. Canon 2 and its Commentary state:
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgement. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.
COMMENTARY
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
Code of Judicial Conduct Canon 2B (1973).
Regarding your second question, because referees are considered judges for purposes of complying with the Code, Code of Judicial Conduct Compliance Sec. (1982), they should disqualify themselves where their spouse is acting as a lawyer in a proceeding. Code of Judicial Conduct Canon 3C(1)(d)(ii) (1982). Therefore, "A" may not hear cases in which her spouse, "B," participates as a lawyer in the proceeding.
However, under the Commentary to Canon 3C(1)(d)(ii), "[t]he fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge." Code of Judicial Conduct Canon 3C(1)(d)(ii) Comment (1982). Again, the fact that the referee's impartiality might reasonably be questioned under Canon 3C(1) would be enough to require her disqualification. Id.
Your third question addresses Canon 3C(1)(b) of the Code which states: "[a] judge should disqualify himself in a proceeding . . . where: . . . he served as a lawyer in the matter in controversy . . ." Code of Judicial Conduct Canon 3C(1)(b) (1982) (emphasis added). It is our opinion that under Canon 3C(1)(b) and, in order to prevent the appearance of impropriety, a referee or judge should not hear cases, based on new facts but, involving parties he or she prosecuted for the state's Bureau of Support. Furthermore, because of the referee's previous contact with a party before her, the general provision of Canon 3C(1) of the Code might require her disqualification from the proceeding since her impartiality might reasonably be questioned. Code of Judicial Conduct Canon 3C(1) (1982).
Your fourth question addresses the second part of Canon 3C(1)(b) of the Code which states: "[a] judge should disqualify himself in a proceeding . . . where . . . a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter." Code of Judicial Conduct Canon 3C (1)(b) (1982). In the Commentary to this section it is stated that, governmental agency lawyers are not necessarily associated with other lawyers employed by that agency. Code of Judicial Conduct Canon 3C(1)(b) Comment (1982). Therefore, the former prosecuting attorney as referee should disqualify herself if her "association with the agency lawyer now before the court . . . leads to the conclusion that, under the general standard of Canon 3C(1), [her] impartiality might reasonably be questioned." E. W. Thode, Reporter's Notes to Code of Judicial Conduct 63 (1973).
Regarding your fifth and sixth questions, the ABA has held, and we agree, 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).
Finally, we are unable to respond to your seventh and final question, as it is overbroad. We must limit our responses to requests for advisory opinions concerning specific questions relating to the specific facts and circumstances presented in the request.
In conclusion, it is our opinion, and you are so advised, that judges and referees should disqualify themselves from any proceeding where their impartiality might reasonably be questioned. In addition, a judge or referee should avoid impropriety and the appearance of impropriety in all of his or her activities.
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